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With the adoption of the Foreign State Immunity Law in September 2023, China officially switches from absolute State immunity to restrictive State immunity. This paper analyses selected provisions of the new law which are likely to cause problems in practice. In addition, the paper also reflects upon the marginal position of Chinese courts in immunity cases in the past and the implication of the new law under the principle of "One Country, Two Systems". [ABSTRACT FROM AUTHOR]

Magistrates, judges and prosecutors, as the main actors on the legal scene, do not benefit from absolute immunity, therefore they can be held legally liable, which wears the five forms, respectively: criminal, civil, moral, contraventional and disciplinary. To avoid this, magistrates must demonstrate good faith and responsibility, both professionally and personally. In the paper, special emphasis is placed on disciplinary liability, indicating what constitutes disciplinary misconduct, what is its structure and what are disciplinary violations, as well as disciplinary sanctions with the addition of examples from the practice of the two sections of the Superior Council of Magistracy, as a disciplinary court, as well as the panel of 5 judges of the ÎCCJ, as an appeals court. At the end, the disciplinary process is presented, indicating the stages that must be completed in order to bring the magistrate judge or prosecutor to disciplinary responsibility. In the paper, I proposed by law ferenda, the addition within article 271 of Law no. 303/2022 regarding the status of judges and prosecutors of the disciplinary offense of noncompliance with the decisions of the Constitutional Court or the decisions issued by the ÎCCJ, in the resolution of appeals in the interest of the law and in the prior resolution of some legal issues; because there is an extremely high risk that the magistrates will not give importance to these decisions, since their non-compliance is no longer provided as a disciplinary offence. [ABSTRACT FROM AUTHOR]

The provision of expert testimony in litigation has become a big business. The paradigmatic testifying expert is no longer the "amateur" expert who maintains a separate professional identity and testifies only once, or at most sporadically, in litigation to which their expertise is uniquely pertinent. Rather, they are a professional provider of litigation support services who spends a substantial part of their time, and derives a substantial part of their income from, consulting on pending or contemplated lawsuits. Legal rules concerning the provision of expert testimony continue to apply the former, obsolete paradigm of the testifying expert. This conflict of paradigms becomes especially acute when a former client accuses a testifying expert of professional malpractice. In other contexts, professional service providers are liable for injuries caused to their client by the service provider's failure to act with professional competence. In the case of testifying experts, however, some courts and scholars maintain that the absolute immunity extended to participants in judicial proceedings preempts the law of professional malpractice that would otherwise apply. This Article makes two contributions to the discussion of expert malpractice liability. It is the first Article to construct a typology of expert malpractice claims and to evaluate systematically the rationales offered for absolute immunity of testifying experts as applied to each type of claim. The Article concludes that absolute immunity against expert malpractice claims is in all cases either unwarranted, insofar as it does not serve the purposes of witness immunity, or unnecessary, insofar as existing tort and contract law serve adequately to prevent the undesirable outcomes that proponents of immunity identify while permitting injured plaintiffs to recover for experts' professional misconduct. Second, the Article offers guidance as to how expert malpractice liability should be implemented, proposing reforms to substantive state law as well as the Federal Rules of Evidence intended to accommodate the concerns raised by advocates of absolute immunity. [ABSTRACT FROM AUTHOR]

In 2018, Cyrus Vance Jr., the New York County District Attorney for Manhattan, opened a criminal investigation into then-President Donald J. Trump on suspicion that he violated state law. Vance served a subpoena duces tecum on Mazars USA, the financial accounting firm for then-President Trump, directing it to produce then-President Trump’s personal and business-related financial information. In response, then-President Trump asserted that his status as President of the United States entitled him to categorical, absolute immunity from the subpoena because compliance with said subpoena would unduly distract him from his constitutional duties. Although this was not the first time that a president had been subject to a subpoena duces tecum, the unique action of a state prosecutor serving a sitting president through a third-party accounting firm raised novel constitutional issues for the U.S. Supreme Court in Trump v. Vance, which was a case of first impression for the Court. The case involved two legal issues: (1) whether a sitting president is entitled to absolute immunity from state criminal process; and (2) whether a subpoena duces tecum served by a state prosecutor must satisfy a heightened showing when served on a sitting president. The U.S. Constitution’s Framers recognized the danger of granting broad immunity for a sitting president because of their experiences with the English monarchy’s abuse of unilateral and largely unchecked authority. The Constitution does not permit the criminal indictment of a sitting president, mainly to ensure that the executive is not unduly distracted from executing the vital functions of the presidency. However, the Framers sought to limit the President’s ability to evade judicial compliance by directing the executive to comply with judicial process as any ordinary citizen would. Since the birth of our Nation, the Court has consistently upheld this intent in their presidential immunity jurisprudence by compelling a president’s compliance with criminal process as necessary for the needs of justice. In yet another affirmation of the Framers’ intent, the Vance Court came to the unanimous and resounding conclusion that a sitting president is not categorically nor absolutely immune from complying with a state criminal subpoena duces tecum. Moreover, the Court held that such a subpoena does not require a heightened showing for service on a sitting president. The Court came to these conclusions from an analysis of two cases that most closely resemble the facts of Vance: United States v. Burr and United States v. Nixon. In all three cases, the Court ruled that a sitting president must comply with judicial process as any citizen would be required to do and that distraction is not a viable argument for a sitting president seeking to avoid such compliance. Accordingly, this Comment argues that the Vance Court properly adhered to its presidential immunity precedents in a manner consistent with the Framers’ intent of the presidency. This Comment then argues that then-President Trump’s distraction argument failed because New York’s interest in criminal investigations outweighed then-President Trump’s Article II interest in executing his duties without undue interference. Next, this Comment argues that the Court should have applied the “demonstrated, specific need” standard from Nixon to solidify a standard for serving a subpoena duces tecum on a sitting president even though its choice to not apply such standard did not affect the outcome of Vance. Finally, this Comment concludes with an update on the case’s subject matter as then-President Trump lost the 2020 presidential election, changing his status from President to U.S. citizen and therefore, negating any constitutional protections he had with respect to criminal due process. [ABSTRACT FROM AUTHOR]

This Article suggests a novel approach to allow victims of frivolous prosecutions to hold prosecutors accountable. Unique among American lawyers, prosecutors enjoy absolute immunity from civil suits alleging professional misconduct. In cases of frivolous prosecutions, where charges are dismissed by the judge or the defendants are acquitted, the former defendants are prevented from seeking damages. This is so despite former defendants often suffering significant consequences--from legal fees to loss of employment. Victims of frivolous prosecutions should be afforded a mechanism to seek redress against prosecutors who bring or maintain meritless actions.///By enacting a rule of criminal procedure that mirrors Federal Rule of Civil Procedure 11, wrongfully accused defendants can obtain redress. At the same time, the reasoning behind prosecutorial immunity--that the fear of civil suits could have a chilling effect on prosecutors' exercise of discretion--is undisturbed. Under this proposed rule, prosecutors could be held accountable for failing to conduct legal research or review available evidence to form a reasonable belief that the defendant's conduct violates existing law. In cases that lack support in fact or law, the trial judge is empowered to sanction prosecutors' frivolous conduct. Such sanctions are meant to deter future misconduct and compensate wrongfully accused defendants. [ABSTRACT FROM AUTHOR]

This article is a response to Neve Gordon and Nicola Perugini's thought-provoking article, '"Hospital Shields" and the Limits of International Law', published in this issue. The authors advocate reforming the law to allow hospitals absolute protection, even in cases where they are also used by combatants for military purposes that are harmful to their adversary ('shielding hospitals'). Defining the contour of the desired protection for hospitals should start with both the institutional and personal attributes justifying their special protection as well as with the empirical data relating to the prevalence of attacks on hospitals – who and what triggers them. Against this background, this reply presents the prevailing law that grants strong protection to hospitals, albeit a contingent one that may be removed in exceptional cases of their abuse. It advocates retaining the contingent protection, though with some adjustments, and argues that the suggested absolute protection – in fact, immunity – for shielding hospitals is neither feasible nor normatively desirable. It would damage the current balance and rationale of the entire body of international humanitarian law in general and have a counter-effect upon the treatment of the sick and wounded in particular. Contrary to its apparent humanitarian rationale, absolute immunity for shielding hospitals would damage their ability to function as medical institutions and allow an adversary who controls a hospital full discretion in selecting its priorities regarding the use of its space and resources and might turn the sick and wounded into a means of warfare. [ABSTRACT FROM AUTHOR]

The article focuses on the development of qualified immunity doctrine in the context of the Fourth Amendment to U.S. Constitution. Topics discussed include interests of Supreme Court related to the same; Harlow v. Fitzgerald court case involving the doctrines of qualified immunity and absolute immunity; Wilson v. Layne court case on the same; and impact of lack of constitutional development and subjectivity on the same.

President Donald Trump's use of Twitter portends a turning point in presidential communication. His Tweets animate his base and enrage his opponents. Tweets, however, like any form of communication, can ruin reputations. In Nixon v. Fitzgerald, the Supreme Court determined that a president retains absolute immunity for all actions that fall within the "outer perimeter" of his official duties. This Article explores the "outer perimeter" of presidential immunity. It suggests the First, Fifth, and Fourteenth Amendments inform the demarcation of the "outer perimeter," and that when a president engages in malicious defamation, his speech falls outside this perimeter and is not protected by presidential immunity. The Article begins by examining Twitter as a social media platform and how it facilitates and affects the way we communicate. It then focuses on how Presidents Barack Obama and Donald Trump incorporated the use of Twitter into their presidencies. I then explore four distinct lines of jurisprudence that I argue inform how to identify the "outer perimeter" of a president's official duties: (1) presidential immunity; (2) immunity for executive branch officials; (3) the constitutional implications of defamation; and (4) the Fifth and Fourteenth Amendments' prohibition on government action motivated by animus. I posit that considering these four doctrines, along with the method and manner of communication facilitated by Twitter, malicious defamation falls outside the "outer perimeter" of official presidential duties, and thus, presidential immunity is inapplicable. [ABSTRACT FROM AUTHOR]

Contract rules can be justified by utilitarian theories (such as efficiency theory), which are concerned with promoting rules that enhance societal wealth and utility. Contract rules can also be justified by rights-based theories (such as promissory and reliance theories), which are concerned with protecting the contractual freedom and interests of the individual parties to the contract. Or, contract rules can be analyzed through the lenses of a host of other theories, including critical legal theory, bargain theory, and so on. Because no single, unitary theory can ever explain the complex body of laws and societal conventions surrounding contracts, the best rule to govern any particular situation is the one that can be justified by multiple normative theories. Such an approach would stand the best chance of achieving consensus, and would acknowledge the insight of pluralism theorists--that no single unified theory can explain the civil law. This Article applies a concordant approach to selecting contract rules to address the question of whether a parent company should be held liable in tort for directing the termination of a contract entered into by its subsidiary. Under ordinary circumstances, a simple breach of contract does not give rise to tort liability and punitive damages; one cannot tortiously interfere with one's own contract. But the courts around the country are deeply divided on the question of whether parent companies are immune from tort liability for inducing a subsidiary to breach a contract. Some courts hold that because the parent and subsidiary share common interests, the parent is completely immune from tort liability, just as though it were a party to the contract (Category 1). Some courts take the similarly formalistic approach that because the parent and subsidiary are technically separate entities, the parent enjoys no immunity from tort liability (Category 2). Some courts impose tort liability only if the parent acted against the business interests of the parent and subsidiary or committed an independent tort (Category 3). Some courts impose tort liability even if the breach of contract was in the business interest of the parent and subsidiary if the parent company's actions were "wrongful," which can be something less than tortious behavior (Category 4). This Article presents an exhaustive survey and categorization of these conflicting rules and then applies normative contract theory to determine which is the best approach. In particular, the two most dominant contract law theories of our time are applied to the issue: efficiency theory and rights-based theory. Applying efficiency theory to the problem at hand, this Article begins with the proposition that, in order tofacilitate efficient breaches of contract, no tort liability should be imposed. However, once one takes into account the underlying false assumption of efficiency theoiy that commercial actors always act rationally, allowing for tort liability to be imposed in those situations where the parent does not act out of business judgment makes sense. When rights-based theory is applied to this issue, it raises questions as to whether breach should be penalized to honor the promise made to the nonbreaching party and to protect the non-breaching party's reliance on that promise. However, rights-based theoiy would also argue for protecting the parent company's autonomy by allowing it to reject a promise it never accepted and to decline to honor reliance it never induced--but only if the parent is acting out of rational business interest. Accordingly, the parent company should be afforded autonomy in choosing to terminate a contract it did not bargain for (so long as it pays compensatory damages). If the parent company's actions are not taken for rational business reasons, but rather for reasons of spite, malice, or oppression, then the law should punish and deter such behavior. [ABSTRACT FROM AUTHOR]

The article examines the need of applying new standards for prosecutorial accountability in issues related to absolute immunity. Topics discussed include the passage of the Civil Rights Act of 1871; ways in which Federal employees are liable for violations of civil rights under Supreme Court precedent; and the U.S. Supreme Court's decision in the case "Harlow v. Fitzgerald" in which the court recognized a blanket qualified immunity defence that applies to all government officials.

The article discusses the doctrinal evolution of state and foreign sovereign immunity in America as of 2015, and it mentions the Eleventh Amendment to the U.S. Constitution, the historical aspects of federalism in America, and rulings by the nation's Supreme Court in constitutional law cases such as Chisholm v. Georgia and Hans v. State of Louisiana. Injunctive relief and an absolute immunity legal doctrine are examined, as well as the U.S. Foreign Sovereign Immunities Act and abrogation.

The article discusses how several lower courts in America have misinterpreted and misapplied the implicit immunities that are contained in Title 42, Section 1983 of the U.S. Code which is also known as the nation's Civil Rights Act of 1871. The expansion of an absolute immunity legal doctrine to government officials is mentioned, along with American common law and the concept of transferred immunity. Quasi-judicial immunity and legislative immunity in the U.S. are assessed.

The article offers the author's insights on the absolute immunity of administrators at the Northeastern Illinois University (NEIU) to academic free speech which results to lawsuits filed against the NEIU, citing the court case Garcetti v. Ceballos. Topics discussed include the importance of faculty speech to the academic structure, the Citizen Participation Act, and the criticism against the policy of the university related to the arrest of students involved in a peace protest.

The article discusses the U.S. government's decision to file a statement of interest and a supplementary letter in the U.S. District Court for the Southern District of New York endorsing the absolute immunity of the United Nations (UN) and several UN officials to claims of liability based on the alleged introduction of cholera into Haiti by UN peacekeeping forces. The Haitian Ministry of Health states that as of June 2014, over 8,500 people have died as a result of contracting cholera.

The article discusses the Court of Final Appeal of the Hong Kong Special Administrative Region's determination in the 2011 case FG Hemisphere Associates v. Democratic Republic of Congo that sovereign states enjoy absolute immunity in the courts of Hong Kong which cannot be waived in predispute contractual documents. Public international law and international commercial arbitration cases are mentioned, along with the New York Convention on Recognition and Enforcement of Foreign Arbitral Awards.

This Note examines the unsettled relationship between defamation and negligence. The law of defamation, through the torts of libel and slander, constitutes a well-developed and complex body of state common law and constitutional considerations. However, some claims for reputational harm may fall outside of this framework, as the law of defamation does not account for all of the ways that an individual's reputation may be injured. Thus, plaintiffs sometimes bring negligence claims to seek redress for damage to reputation. When a plaintiff brings a negligence claim for pure reputational harm, the court is faced with a variety of options for handling the claim. This Note argues that courts should adopt a multistep approach to handling such claims. The court should first determine whether the claim is communication-based or not. If it is a noncommunieative claim, it should be allowed to stand as a simple negligence claim. If however, the claim is communication-based, it should be presumptively displaced by the torts of libel and slander. [ABSTRACT FROM AUTHOR]

The article discusses judicial immunity in the wake of the U.S. Court of Appeals for the Eighth Circuit's ruling in the case Hemminghaus v. Missouri which deals with Missouri's plan for judicial selection and a question regarding how a judicial employee might properly deal with suspected child abuse. An absolute immunity doctrine is examined, along with the U.S. Supreme Court cases Stump v. Sparkman and Mireles v. Waco which address judges' immunity. A qualified immunity doctrine is assessed.