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Papers by Morten Kinander
Courts and Power in Latin America and Africa, 2010
This chapter examines the accountability function of superior courts in three Latin American coun... more This chapter examines the accountability function of superior courts in three Latin American countries—Argentina, Chile, and Colombia—in the last two decades.1 This comparison appears promising because the respective courts have assumed very dissimilar roles in countries that share a common colonial and independence history, similar legal traditions, and relatively parallel histories regarding the effects of the international economic environment. How, then, can we explain the different legal outcomes in these countries? More specifically, what explains the fact that some of the superior courts have exercised an active accountability function whereas others have been rather deferential to the executive?
Courts and Power in Latin America and Africa, 2010
The last two decades have witnessed a transformation of superior court behavior in many less deve... more The last two decades have witnessed a transformation of superior court behavior in many less developed countries. These courts have metamorphosized from being moribund, rubber-stamping institutions with little importance in political matters to more forceful, assertive institutions that constrain the behavior of popular branches of government and that hold them responsible when they break the law. In short, in recent decades, many superior courts have emerged as more independent, assertive, and powerful accountability agents. But, this has not been universally true. While some courts have exercised strong accountability functions, others have either remained passive or have inconsistent track records of holding popular branches to account. The puzzle that motivates this book, then, concerns the variation in the exercise of accountability functions of superior courts in Latin America and Africa over the last two decades. Why and when are courts able and willing to exercise accountability functions vis-a-vis power holders?
Courts and Power in Latin America and Africa, 2010
The previous chapter contrasted the rise of Colombia’s “hyperactive” Constitutional Court with th... more The previous chapter contrasted the rise of Colombia’s “hyperactive” Constitutional Court with the mixed record of the Argentine Supreme Court and the unquestionable reluctance of Chile’s highest court to routinely exercise its accountability function. Of these three countries, Colombia’s Constitutional Court was clearly the most extreme case of judicial assertiveness. In this chapter, we focus on Costa Rica’s similarly hyperactive Constitutional Chamber of its Supreme Court—the Sala IV—to assess whether the explanation developed for the Colombian Court’s transformation also holds in other cases of highly active courts. All the three cases analyzed in Chapter 3 experienced legal reforms simultaneously with other major institutional changes, such as the promulgation of a new constitution (Colombia), and/or transitions to democratic governance (Chile and Argentina). These simultaneous institutional changes can fog our view of the impact of legal reforms on court behavior. In Costa Rica, on the other hand, the only significant institutional reform was a minor constitutional amendment that created a new chamber within the Supreme Court; all other institutions remained constant. This ceteris paribus situation grants us a very clear picture of court behavior before and after the reforms, allowing us to demonstrate the possible effects of the reforms on the court’s exercise of its accountability functions.
Courts and Power in Latin America and Africa, 2010
Similar to the African cases discussed in the previous chapter, Mozambique’s judiciary suffers fr... more Similar to the African cases discussed in the previous chapter, Mozambique’s judiciary suffers from a lack of staff, funds, and other resources. Not unlike Uganda, Mozambique has emerged from a context of prolonged civil war preceded by colonial rule, and for a long time, formal court structures simply were not functional. Similar to its neighbors in the north, Mozambique has inherited formal court structures and a large body of legislation from its colonial power. Today, it has a court structure resembling that of Portugal, where three different high courts constitutionally rank as the highest bodies of competence in different judicial areas. However, the Mozambican case differs from the other African countries analyzed in this book on one important dimension: In contrast to their common law systems, Mozambique—a former Portuguese colony—employs a civil law tradition much like Angola, Guinea-Bissau, Cape Verde Islands, and Sao Tome and Principe Islands.
Introduction: Power and Accountability in Latin America and Africa Courts' Accountability Fun... more Introduction: Power and Accountability in Latin America and Africa Courts' Accountability Functions: A Framework for Inquiry The Accountability Functions of Latin American Courts Explaining the Rise of Accountability Functions of Costa Rica's Constitutional Court Comparing Courts' Accountability Functions in Africa Does Legal Tradition Matter? The Emerging Accountability Functions of Mozambican High Courts
Courts and Power in Latin America and Africa, 2010
Many countries across the globe have in the past two decades undertaken substantial judicial and ... more Many countries across the globe have in the past two decades undertaken substantial judicial and legal reforms to strengthen the democratic character of their governments. Yet, the ability and willingness of courts to restrain elected officials vary greatly. This book describes these experiences, analyzes the reasons for existing variations, and helps gain more secure knowledge about the conditions that favor the ability of courts to exercise an effective accountability function. The book describes the experiences of four Latin American and six African cases, and demonstrates the varying ability and willingness of courts to hold other state branches to account. We approach this task through a systematic comparison that is based on theoretically structured thick descriptions with each case focusing on the areas of law where, prima facie, account ability problems seem to be particularly important. Thus, we seek to retain the richness of each country’s experience, while enabling a systematic comparative analysis and a reassessment of central theories in the field. This chapter provides the theoretical foundation for the descriptions in the following empirical case studies and the final chapter, which synthesizes the lessons drawn from the individual cases.
Jussens Venner, 2013
Tidsskriftets forlag, Universitetsforlaget, tillater at siste forfatterversjon legges i åpent pub... more Tidsskriftets forlag, Universitetsforlaget, tillater at siste forfatterversjon legges i åpent publiseringsarkiv ved den institusjon forfatteren tilhører. Denne fil er lagt ut 10/2013
Akten des IX. Internationalen Kant-Kongresses. Bd. I: Hauptvorträge. Bd. II: Sektionen I-V. Bd. III: Sektionen VI-X: Bd. IV: Sektionen XI-XIV. Bd. V: Sektionen XV-XVIII, 2001
Norsk filosofisk tidsskrift, 2012
... av Paul Rækstad. Diskursteoriens differensiering: Hvorfor Habermas diskursetikk ikke er en et... more ... av Paul Rækstad. Diskursteoriens differensiering: Hvorfor Habermas diskursetikk ikke er en etisk teori (Side 278-290) av Øystein Lundestad. Rasjonalitet og rettferdighet hos Kant og Rawls. Er John Rawls en kantianer? (Side 295-310) av Morten Kinander. ...
Would the Norway model mean the UK was subject to the rulings of a foreign court? Morten Kinander... more Would the Norway model mean the UK was subject to the rulings of a foreign court? Morten Kinander (Norwegian Business School) responds to Oyvind Bo's recent post for LSE Brexit. Yes, EFTA states are subject to the decisions of their Surveillance Authorities, but they are not formally bound by them in the sense that the state is subject to sanctions. This is an important distinction because it shows why the EFTA system is able to accommodate the sovereignty of its members. Yet EFTA was not designed for an ever more powerful supervisory structure, and it would struggle to incorporate the UK. This presents a welcome opportunity to refurbish the whole EFTA-pillar.
Tidsskrift for Rettsvitenskap
The Study on Directors’ Duties and Sustainable Corporate Governance (hereinafter ‘The Study’) was... more The Study on Directors’ Duties and Sustainable Corporate Governance (hereinafter ‘The Study’) was published on 30 July 2020 and is accompanied by a Commission Inception Impact Assessment and a consultation deadline of 8 October 2020. The Assessment adds very little to the Study and this response is consequently made to the Study by a group of Nordic company law scholars.<br><br>Resume of Findings<br>The Study displays a lack of understanding of the nature of legal discourse and presents a biased, unrepresentative and highly politically motivated survey of literature and empirics.<br><br>The Study misrepresents fundamental concepts of company law and fails to understand how corporate governance works.<br><br>The Study exaggerates the problem of climate change and neglects the many other, equally serious, problems facing both company directors and EU legislators in their obligations to their respective constituencies.<br><br>The po...
Courts and Power in Latin America and Africa, 2010
This chapter examines the accountability function of superior courts in three Latin American coun... more This chapter examines the accountability function of superior courts in three Latin American countries—Argentina, Chile, and Colombia—in the last two decades.1 This comparison appears promising because the respective courts have assumed very dissimilar roles in countries that share a common colonial and independence history, similar legal traditions, and relatively parallel histories regarding the effects of the international economic environment. How, then, can we explain the different legal outcomes in these countries? More specifically, what explains the fact that some of the superior courts have exercised an active accountability function whereas others have been rather deferential to the executive?
Courts and Power in Latin America and Africa, 2010
The last two decades have witnessed a transformation of superior court behavior in many less deve... more The last two decades have witnessed a transformation of superior court behavior in many less developed countries. These courts have metamorphosized from being moribund, rubber-stamping institutions with little importance in political matters to more forceful, assertive institutions that constrain the behavior of popular branches of government and that hold them responsible when they break the law. In short, in recent decades, many superior courts have emerged as more independent, assertive, and powerful accountability agents. But, this has not been universally true. While some courts have exercised strong accountability functions, others have either remained passive or have inconsistent track records of holding popular branches to account. The puzzle that motivates this book, then, concerns the variation in the exercise of accountability functions of superior courts in Latin America and Africa over the last two decades. Why and when are courts able and willing to exercise accountability functions vis-a-vis power holders?
Courts and Power in Latin America and Africa, 2010
The previous chapter contrasted the rise of Colombia’s “hyperactive” Constitutional Court with th... more The previous chapter contrasted the rise of Colombia’s “hyperactive” Constitutional Court with the mixed record of the Argentine Supreme Court and the unquestionable reluctance of Chile’s highest court to routinely exercise its accountability function. Of these three countries, Colombia’s Constitutional Court was clearly the most extreme case of judicial assertiveness. In this chapter, we focus on Costa Rica’s similarly hyperactive Constitutional Chamber of its Supreme Court—the Sala IV—to assess whether the explanation developed for the Colombian Court’s transformation also holds in other cases of highly active courts. All the three cases analyzed in Chapter 3 experienced legal reforms simultaneously with other major institutional changes, such as the promulgation of a new constitution (Colombia), and/or transitions to democratic governance (Chile and Argentina). These simultaneous institutional changes can fog our view of the impact of legal reforms on court behavior. In Costa Rica, on the other hand, the only significant institutional reform was a minor constitutional amendment that created a new chamber within the Supreme Court; all other institutions remained constant. This ceteris paribus situation grants us a very clear picture of court behavior before and after the reforms, allowing us to demonstrate the possible effects of the reforms on the court’s exercise of its accountability functions.
Courts and Power in Latin America and Africa, 2010
Similar to the African cases discussed in the previous chapter, Mozambique’s judiciary suffers fr... more Similar to the African cases discussed in the previous chapter, Mozambique’s judiciary suffers from a lack of staff, funds, and other resources. Not unlike Uganda, Mozambique has emerged from a context of prolonged civil war preceded by colonial rule, and for a long time, formal court structures simply were not functional. Similar to its neighbors in the north, Mozambique has inherited formal court structures and a large body of legislation from its colonial power. Today, it has a court structure resembling that of Portugal, where three different high courts constitutionally rank as the highest bodies of competence in different judicial areas. However, the Mozambican case differs from the other African countries analyzed in this book on one important dimension: In contrast to their common law systems, Mozambique—a former Portuguese colony—employs a civil law tradition much like Angola, Guinea-Bissau, Cape Verde Islands, and Sao Tome and Principe Islands.
Introduction: Power and Accountability in Latin America and Africa Courts' Accountability Fun... more Introduction: Power and Accountability in Latin America and Africa Courts' Accountability Functions: A Framework for Inquiry The Accountability Functions of Latin American Courts Explaining the Rise of Accountability Functions of Costa Rica's Constitutional Court Comparing Courts' Accountability Functions in Africa Does Legal Tradition Matter? The Emerging Accountability Functions of Mozambican High Courts
Courts and Power in Latin America and Africa, 2010
Many countries across the globe have in the past two decades undertaken substantial judicial and ... more Many countries across the globe have in the past two decades undertaken substantial judicial and legal reforms to strengthen the democratic character of their governments. Yet, the ability and willingness of courts to restrain elected officials vary greatly. This book describes these experiences, analyzes the reasons for existing variations, and helps gain more secure knowledge about the conditions that favor the ability of courts to exercise an effective accountability function. The book describes the experiences of four Latin American and six African cases, and demonstrates the varying ability and willingness of courts to hold other state branches to account. We approach this task through a systematic comparison that is based on theoretically structured thick descriptions with each case focusing on the areas of law where, prima facie, account ability problems seem to be particularly important. Thus, we seek to retain the richness of each country’s experience, while enabling a systematic comparative analysis and a reassessment of central theories in the field. This chapter provides the theoretical foundation for the descriptions in the following empirical case studies and the final chapter, which synthesizes the lessons drawn from the individual cases.
Jussens Venner, 2013
Tidsskriftets forlag, Universitetsforlaget, tillater at siste forfatterversjon legges i åpent pub... more Tidsskriftets forlag, Universitetsforlaget, tillater at siste forfatterversjon legges i åpent publiseringsarkiv ved den institusjon forfatteren tilhører. Denne fil er lagt ut 10/2013
Akten des IX. Internationalen Kant-Kongresses. Bd. I: Hauptvorträge. Bd. II: Sektionen I-V. Bd. III: Sektionen VI-X: Bd. IV: Sektionen XI-XIV. Bd. V: Sektionen XV-XVIII, 2001
Norsk filosofisk tidsskrift, 2012
... av Paul Rækstad. Diskursteoriens differensiering: Hvorfor Habermas diskursetikk ikke er en et... more ... av Paul Rækstad. Diskursteoriens differensiering: Hvorfor Habermas diskursetikk ikke er en etisk teori (Side 278-290) av Øystein Lundestad. Rasjonalitet og rettferdighet hos Kant og Rawls. Er John Rawls en kantianer? (Side 295-310) av Morten Kinander. ...
Would the Norway model mean the UK was subject to the rulings of a foreign court? Morten Kinander... more Would the Norway model mean the UK was subject to the rulings of a foreign court? Morten Kinander (Norwegian Business School) responds to Oyvind Bo's recent post for LSE Brexit. Yes, EFTA states are subject to the decisions of their Surveillance Authorities, but they are not formally bound by them in the sense that the state is subject to sanctions. This is an important distinction because it shows why the EFTA system is able to accommodate the sovereignty of its members. Yet EFTA was not designed for an ever more powerful supervisory structure, and it would struggle to incorporate the UK. This presents a welcome opportunity to refurbish the whole EFTA-pillar.
Tidsskrift for Rettsvitenskap
The Study on Directors’ Duties and Sustainable Corporate Governance (hereinafter ‘The Study’) was... more The Study on Directors’ Duties and Sustainable Corporate Governance (hereinafter ‘The Study’) was published on 30 July 2020 and is accompanied by a Commission Inception Impact Assessment and a consultation deadline of 8 October 2020. The Assessment adds very little to the Study and this response is consequently made to the Study by a group of Nordic company law scholars.<br><br>Resume of Findings<br>The Study displays a lack of understanding of the nature of legal discourse and presents a biased, unrepresentative and highly politically motivated survey of literature and empirics.<br><br>The Study misrepresents fundamental concepts of company law and fails to understand how corporate governance works.<br><br>The Study exaggerates the problem of climate change and neglects the many other, equally serious, problems facing both company directors and EU legislators in their obligations to their respective constituencies.<br><br>The po...