Law Commons^™

Beyond Compulsory Licensing: Pfizer Shares Its Covid-19 Medicines With The Patent Pool, Chenglin Liu

Faculty Articles

On March 15, 2022, the United States, European Union, India, and South Africa reached an agreement on the waiver of intellectual property rights (IP rights) for COVID-19 vaccines. The waiver agreement has rekindled the debate on the balance between IP rights protection and equitable access to medicines during a public health crisis. India, South Africa, and other developing countries maintain that a waiver was the only way to make vaccines affordable and accessible. Leading pharmaceutical companies argue that the waiver will stifle innovation and make lifesaving medicines less accessible. Both sides have seemingly overlooked Pfizer's voluntary agreement with the Medicines …

The World Health Organization: A Weak Defender Against Pandemics, Chenglin Liu

Faculty Articles

Why did the World Health Organization (WHO) not act in a timely fashion to declare the coronavirus outbreak a Public Health Emergency of International Concern (PHEIC)? If it had done so, could the United States have heeded the warning and controlled the spread of the virus? Is the WHO's delay a factual cause of the calamities that the United States has suffered? This article addresses these questions. Part I examines the development of the WHO and its governance mechanism, major powers and limits, and past achievements and failures. It also explores how the WHO responded to the COVID-19 pandemic and …

The World Health Organization: A Weak Defender Against Pandemics, Chenglin Liu

Faculty Articles

Why did the World Health Organization (WHO) not act in a timely fashion to declare the coronavirus outbreak a Public Health Emergency of International Concern (PHEIC)? If it had done so, could the United States have heeded the warning and controlled the spread of the virus? Is the WHO's delay a factual cause of the calamities that the United States has suffered? This article addresses these questions. Part I examines the development of the WHO and its governance mechanism, major powers and limits, and past achievements and failures. It also explores how the WHO responded to the COVID-19 pandemic and …

Confucius And The Chinese Legal Tradition, Chenglin Liu

Faculty Articles

More than two thousand years ago, Confucius transformed and perfected an institution for governing Chinese people, which has been religiously replicated by subsequent dynasties. Within the Confucian institution, the King, at the pinnacle of the pyramid, held absolute authority; regional lords were loyal to the King; and commoners were submissive to the privileged. Confucius held that peace and order could only be achieved when people acted according to their hierarchical worth assigned by the ruler. This article offers an overview of the transformation of Confucianism. It then examines competing schools of thought-Legalism and Taoism-and explains why Confucianism triumphed to become …

Socialized Liability In Chinese Tort Law, Chenglin Liu

Faculty Articles

This article explores two unique aspects of the Chinese Tort Liability Law (TLL): (1) Article 24 holds that a party not at fault shall share the loss with the victim in non-strict liability cases under undefined circumstances, and (2) the government often shields a party at fault from liability in mass tort cases by disregarding the TLL entirely. These two aspects may seem contradictory; however, they are both based on the same principle of socialized liability, which is first articulated in this article.

Scholars often claim that Article 24 embodies the principle of equitable liability. This article challenges such claims …

Risks Faced By Foreign Lawyers In China, Chenglin Liu

Faculty Articles

This article provides an objective assessment of the potential risks that foreign lawyers face in China as they push the boundaries of the limits on their activities set by Chinese law. When the Shanghai Bar Association (SBA), a government-controlled organization, accused foreign lawyers of violating Chinese law and called for official action, some scholars dismissed the threat, claiming that there was no legal basis for a crackdown on foreign lawyers. These scholars erroneously maintained that the Chinese laws that regulate foreign lawyers are ambiguous and create "gray areas." In fact, the claims of the SBA are justified because the applicable …

The Development Of Chinese Constitutionalism, Chenglin Liu

Faculty Articles

Since the establishment of the People's Republic of China (PRC) in 1949, the country has enacted four constitutions. This Article provides a historical analysis of how the Communist Party of China (the Party) and its paramount leaders shaped each constitution, influenced the public perception of the law, and determined the method individual constitutional rights should be permitted. Through examining leading incidents that defined the PRC's history, this Article provides a detailed examination of how the Party used a constitutional framework to achieve its specific agenda of the time.

Escaping Liability Via Forum Non Conveniens: Conocophillips's Oil Spill In China, Chenglin Liu

Faculty Articles

In 2011, a year after British Petroleum (BP) 's oil spill in the Gulf of Mexico, ConocoPhillips's subsidiary in China caused a massive oil spill in the Bohai Sea. A group of fishermen suffered severe property damage as a result of the oil spill. After a failed attempt to have their complaint heard in a Chinese court, the fishermen sued ConocoPhillips in the United States District Court in Houston, Texas. It is very likely that the Houston District Court will deem the Chinese courts the more appropriate forum for this case and grant ConocoPhillips's motion for forum non conveniens dismissal. …

Leaving The Fda Behind: Pharmaceutical Outsourcing And Drug Safety, Chenglin Liu

Faculty Articles

During the 2008 heparin crisis, a tainted blood-thinning drug imported from China caused the deaths of at least eighty people in the United States. However, despite the Food and Drug Administration’s (“FDA”) reactive measures, the American regulatory framework for drug safety remains largely unchanged. Currently, about 80% of active pharmaceutical ingredients, 40% of finished drugs, and 50% of all medical devices used in the United States are imported from over 100 countries. With the growth of product outsourcing, pharmaceutical companies in the United States have stopped manufacturing many essential medicines. Nevertheless, the FDA’s foreign inspections have lagged. It would take …

Is Usda Organic A Seal Of Deceit: The Pitfalls Of Usda Certified Organics Produced In The United States, China And Beyond, Chenglin Liu

Faculty Articles

American consumers' appetite for organic foods (organics) has dramatically increased since Congress passed the Organic Foods Production Act (OFPA) in 1990. Because the domestic organic food industry has been unable to meet the growing demand for these products, U.S. groceries have increasingly relied on imported organics. Studies show that 40% of organic foods consumed in the United States are imported from over 100 foreign countries.

To regulate organic food production, the United States Department of Agriculture (USDA) accredits certifying agents, which in turn certify organic farms and handlers according to U.S. organic standards. Certifying agents can be state agencies or …

The Obstacles Of Outsourcing Imported Food Safety To China, Chenglin Liu

Faculty Articles

Outsourcing regulatory power through a bilateral agreement with China is unlikely to ensure the safety of imported food for two primary reasons: (1) shifting the regulatory burden does not present a feasible alternative to the traditional enforcement tools of outcome-based and production-based inspections and sanctions; and (2) China's burgeoning food safety regime, based on an entirely different culture and legal system, provides little incentive for Chinese food manufacturers to increase production costs to comply with U.S. standards.

There are three approaches for securing food safety in the U.S.: (1) increase inspections at the borders by utilizing traditional outcome-based enforcement tools; …

Profits Above The Law: China’S Melamine Tainted Milk Incident, Chenglin Liu

Faculty Articles

There are fundamental flaws within China’s food safety regulatory regime that permeate both its supervision system and governing laws. This is especially prevalent within the market structure in the dairy industry. The government continues to fail in regulating the chaotic market forcing competitors to internalize costs, which has resulted in melamine tainted milk.

This tainted milk scandal has resulted in the death of thousands of infants in a number of Asian countries. The scandal was concealed by the Sanlu Group and local government for fear of bad publicity and loss of profits.

The Chinese government should search for a new …

The Chinese Takings Law From A Comparative Perspective, Chenglin Liu

Faculty Articles

When acquiring private property, governments may exercise one of three options: confiscation, consensual exchange, or eminent domain. Under the first approach, the government can confiscate private land without seeking consent from private owners and without paying compensation to them. Alternatively, under the consensual exchange approach, the government can only acquire private property through arm’s-length negotiations in an open market. It requires the government to obtain consent from private owners and pay mutually agreed purchase prices, determined by both the government as a willing buyer and private owners as willing sellers. The third approach is through eminent domain, which denotes when …

Chinese Law And Legal Research (Book Review), Chenglin Liu

Faculty Articles

Mr. Wei Luo has taken up the enormous challenge of establishing a subject-arrangement codification system and a uniform legal citation standard for China. Mr. Luo’s unique exposure to the Chinese legal system and law making process has made him the ideal scholar to address Chinese legal research. As a result of a five-year-long endeavor to direct these codification and legal citation projects, Mr. Luo has published his outstanding volume Chinese Law and Chinese Legal Research.

As the title of the book indicates, Mr. Luo’s work has gone far beyond the scope of an ordinary research guide or annotated bibliography. He …

Chinese Law On Sars By Chenglin Liu (Book Review), Vincent R. Johnson

Faculty Articles

Chinese Law on SARS, by Chenglin Liu, is a marvelous example of fresh scholarship about a new and important feature of the Chinese legal system. The book analyzes the Chinese response to the Severe Acute Respiratory Syndrome (“SARS”) epidemic in 2003. Most notably, it examines the government’s passing of two new laws and the implementation of other legal steps to bolster the nation’s public health system.

Liu’s scholarly examination of the SARS legislation is instructive, not merely because it explains the current laws in China relating to SARS, but also because it offers insight into what a country should (and …

Regulating Sars In China: Law As An Antidote?, Chenglin Liu

Faculty Articles

Severe Acute Respiratory Disease (SARS) is caused by a coronavirus, and as of this writing has no known vaccine or cure. Generally, the disease starts with a high fever, headaches, body aches, and mild respiratory symptoms. SARS spreads through respiratory droplets produced by an infected person when he or she coughs or sneezes or through physical contact.

The disease was first identified in a southern province of China in November of 2002, and quickly spread to twenty-seven different countries. In March of 2003, the World Health Organization (WHO) declared SARS a global health threat. In China, the economic and social …

Informal Rules, Transaction Costs, And The Failure Of The “Takings” Law In China, Chenglin Liu

Faculty Articles

The enforcement of China’s new takings law has failed. In the unbalanced tug-of-war between individual homeowners and deep pocketed developers, the government sided with the latter by changing zoning plans to fit commercial development, authorizing forced evictions, deploying judicial police to execute eviction orders, lowering compensation standards, instructing courts not to hear cases involving demolitions, blocking class actions, and more. Many Chinese scholars argue that lackluster enforcement can be remedied by a well-drafted property code. However, applying the New Institutional Economics’ (NIE) theory on institutions to the enforcement failure associated with the takings law draws attention to informal complaints, which …

Fighting Epidemics With Information And Laws: The Case Of Sars In China (Book Review), Vincent R. Johnson, Brian T. Bagley

Faculty Articles

In Chinese Law on SARS, Chenglin Liu recounts the tale of China’s efforts to cope with the recent SARS epidemic. The outbreak of SARS coincided with the full session of the 10th National People’s Congress, which elected a new Central Government in response to governmental failures in dealing with the crisis. The new government’s “proactive” approach to addressing the epidemic was to enact new legislation, republish an important law, and issue authoritative interpretations of existing criminal law provisions.

Liu offers a savvy analysis of why China’s centralized framework initially impeded the fight against SARS, and discusses the new government’s decisions …