Teaching Comparative Law is everything that makes teaching great. It's an impossible job, because no one is expert in law the world over, so the course can be daunting to teachers and students alike. But the challenge is best undertaken as an opportunity to explore. The joy of teaching Comparative Law for me and my wife, who serves as a law librarian embedded in the course, is that every time, current events and our students' range of interests lead us down new paths.
We wrestle with the problem of what we don't know by consulting experts. This semester, as in past semesters, we were privileged to have had our class enriched by the knowledge and experience of some stars in legal practice and academics. In order of appearance...
Attorney Wojciech Jarosiński, LL.M. (on this blog), of the Maruta law firm, stayed up late to join us from Warsaw, Poland. To give us the perspective of a lawyer working in the civil law tradition, he led the class in examining judicial reception of a U.S. punitive damages award in Poland, and then in considering common law and civil law differences in the context of transnational contracting.
Professor Chenglin Liu, St. Mary’s University School of Law, joined from post-freeze Texas to talk about the Chinese response to covid-19. Professor Liu wrote about the Chinese response to SARS in 2005 in a work that the pandemic rendered newly salient. A fellow torts teacher, Professor Liu also indulged student questions around U.S. states' suits against the PRC and the implications for Biden Administration diplomacy.
Professor Danya Reda, UMass Law, treated our class to an introduction to Islamic Law. Also a fellow torts teacher, Professor Reda teaches an upper-level class on Islamic Law. Before returning to the United States full time, Professor Reda taught at Peking University School of Transnational Law. Her research examines court reform in global perspective.
Professor Sindiso Mnisi Weeks, UMass Boston, led the class in a lively discussion of South Africa. She generously shared her latest research findings on marriage and land rights in customary and contemporary law. Besides a doctoral degree from Oxford, Professor Mnisi Weeks holds a law degree from the University of Cape Town, home to the renowned Centre for Comparative Law in Africa. She serves UMass Boston in the School for Global Inclusion and Social Development.
Professor Leah Wortham, Columbus School of Law, Catholic University of America, joined us to talk about the unfolding crisis over judicial independence in Poland. With Professor Fryderyk Zoll, Jagiellonian University, Professor Wortham published the definitive treatment of the subject in 2019. The matter has become only more complicated and more concerning, both within Poland and between Poland and the EU, in the years since.
Our thanks to Attorney Jarosiński and Professors Liu, Reda, Mnisi Weeks, and Wortham for contributing to a stellar semester's experience. Watch this blog for a report in May on the students' final papers.
Social stability in Poland has been increasingly shaky since populist politics has threatened the independence of the judiciary in recent years. Professor Leah Worthamwrote about the issue and kindly spoke to my Comparative Law class one year ago (before Zoom was cool).
Recently tensions have reached a boiling point. In October, the nation's constitutional court outlawed nearly all abortions (Guardian). Protestors have taken to the streets in the largest numbers since the fall of communism, The Guardian reported, confronting riot police and right-wing gangs.
Friend and colleague Elizabeth Zechenter, an attorney, visiting scholar at Emory College, and president of the Jagiellonian Law Society, writes: "Poland is in upheaval, after the Constitutional Tribunal restricted
even further one of the most strict anti-abortion laws in Europe. I
and several other Polish women academics
have gotten together, and we created a webinar, trying to offer an
analysis, legal, cultural, sociological, etc."
The scholars' webinar is available free on YouTube. Below the inset is information about the program. Please spread the word.
Women Strikes In Poland: What is Happening, and Why?
Since the fateful decision of the Polish Constitutional Tribunal (Trybunał Konstytucyjny or TK) on October 22, 2020—further restricting one of the most restrictive anti-abortion laws in Europe—Poland saw massive, spontaneous demonstrations and civic protests in most cities, small and big, and even villages. Protests have been continuing since the day of TK’s decision and show no signs of abating.
To explain what is happening, we have assembled a panel of academics and lawyers to clarify the current legal situation, to analyze the scope of new anti-abortion restrictions, to explain whether this new law may be challenged under any of the EU laws applicable to Poland, and what might be political implications of doing that, as well as offer a preliminary cultural, linguistic, anthropological, and sociological analysis of the recent events.
Contents
0:00:00-0:03:17 Introduction: Bios of Speakers, Disclaimers
Legal Panel
0:03:17-0:26:00 Elizabeth M. Zechenter, J.D., Ph.D., "October 2020 Abortion Decision by the Constitutional Tribunal: Analysis and Legal Implications"
0:26:00-0:46:00 Agnieszka Kubal, Ph.D., "Human Rights Implication of the Decision by the Polish Constitutional Tribunal from 22 October 2020"
0:46:00-0:59:00 Agnieszka Gaertner, J.D., LLM, "Abortion Under EU Law"
Panel: Culture and Language of Protest
0:59:00-1:31:00 Katarzyna Zechenter, Ph.D., "Uses of Language by the Protesters, the Polish Catholic Church, and the Ruling Political Party 'Law and Justice' (PiS)"
Panel: Sociological and Anthropological
1:31:00-1:49:00 Joanna Regulska, Ph.D., "Struggle for Women's Rights in Poland"
1:49:00-2:12:00 Helena Chmielewska-Szlajfer, Ph.D., "Augmented Reality, Young Adults, and Civic Engagement"
Praise for the Webinar
"Wow! That was, without a doubt, one of the most informative, fascinating, engaging, and powerful webinars I have ever attended."
"All of us in your virtual audience 'voted with our feet' ... i.e., it is generally considered that 90 minutes is an audience's absolute maximum attention span for an online webinar, particularly since everyone these days is simply 'Zoomed-out' (over-Zoomed), in this era of COVID-19. But YOUR audience stayed with you for a marathon 2 hours and 45 minutes (and it felt like a sprint, not a marathon)!"
"A high tribute to you and your sister (not fellow!) panelists."
Disclaimers
The webinar was organized impromptu in response to numerous calls to analyze Poland's ongoing protests. The goal of the webinar was to provide a non-partisan review of the evolving situation and better understand the legal, cultural, and sociological underpinnings of the Constitutional Tribunal’s anti-abortion decision that resulted in such massive country-wide protests.
The opinions expressed in the seminar are those of the speakers alone who are not speaking as representatives of any institution; the main goal has been to advance understanding of the situation.
Given the urgency to offer at least a preliminary analysis (and in light of the continuously evolving situation), most speakers had less than 24 hours to prepare their remarks. We apologize for any imperfections.
For democracy and the rule of law to function and flourish, important
actors in the justice system need sufficient independence from
politicians in power to act under rule of law rather than political
pressure. The court system must offer a place where government action
can be reviewed, challenged, and, when necessary, limited to protect
constitutional and legal bounds, safeguard internationally-recognized
human rights, and prevent departures from a fair and impartial system of
law enforcement and dispute resolution. Courts also should offer a
place where government officials can be held accountable. People within
and outside a country need faith that court decisions will be made
fairly and under law. Because the Council of Europe’s Group of States
against Corruption (“GRECO”) deems judicial independence critical to
fighting corruption, GRECO makes a detailed analysis of their members’
judicial system part of their member review process. This Article is a
case study of the performance of Poland’s mechanisms for judicial
independence and accountability since 2015, a time of extreme political
stress in that country. Readers will see parallels to comparable
historical and current events around the world.
In discussion with the class, Professor Wortham remarked on parallels between the Polish judicial crisis and threats to the legitimacy of the courts in the United States. She referenced recent remarks by U.S. District Judge Paul Friedman to the American Law Institute, in which Judge Friedman distinguished denigration and personal attacks on the judiciary from disagreement with judicial decisions accompanied by respect for a co-equal branch of government (ALI, CNN). The class discussion about Poland also treated the recent decision of the Irish Supreme Court to order extradition of a Polish man wanted for drug trafficking offenses, despite concerns about judicial independence in Poland (Irish Times).
