Public Law and Legal Theory Commons^™

A Reader’S Guide To Legal Orientalism, Teemu Ruskola

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My book Legal Orientalism: China, the United States, and Modern Law (Harvard University Press 2013) was published in translation in China in 2016. This essay analyzes the Chinese reception of this book. Originally addressed to a North American readership, Legal Orientalism examines critically the asymmetric relationship in which Euro-American law and Chinese law stand to one another, the former regarding itself as an embodiment of universal values while viewing the latter’s as culturally particular ones. The essay explores what happens when a “Western” work of self-criticism is transmitted to an “Eastern” audience. In this context, it analyzes the politics of …

Due Process In Antitrust Enforcement: Normative And Comparative Perspectives, Christopher S. Yoo, Yong Huang, Thomas Fetzer, Shan Jiang

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Due process in antitrust enforcement has significant implications for better professional and accurate enforcement decisions. Not only can due process spur economic growth, raise government credibility, and limit the abuse of powers according to law, it also promotes competitive reforms in monopolized sectors and curbs corruption. Jurisdictions learn from the best practices in the investigation process, decisionmaking process, and the announcement and judicial review of antitrust enforcement decisions. By comparing the enforcement policies of China, the European Union, and the United States, this article calls for better disclosure of evidence, participation of legal counsel, and protection of the procedural and …

Administrative Law In A Time Of Crisis: Comparing National Responses To Covid-19, Cary Coglianese, Neysun A. Mahboubi

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Beginning in early 2020, countries around the world successively and then together faced the same rapidly emerging threats from the COVID-19 virus. The shared experience of this global pandemic affords scholars and policymakers a comparative lens through which to view how differences in countries’ governance structures and administrative responses affected their ability to manage the various crisis posed by the pandemic. This article introduces a special series of essays in the Administrative Law Review written by leading administrative law experts across the globe. Case studies focus on China, Chile, Germany, Italy, New Zealand, South Africa, and the United States, as …

Commercial Law Intersections, Giuliano Castellano, Andrea Tosato

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Commercial law is not a single, monolithic entity. It has grown into a dense thicket of subject-specific branches that govern a broad range of transactions and corporate actions. When one of these events falls concurrently within the purview of two or more of these commercial law branches - such as corporate law, intellectual property law, secured transactions law, conduct and prudential regulation - an overlap materializes. We refer to this legal phenomenon as a commercial law intersection (CLI). Some notable examples of transactions that feature CLIs include bank loans secured by shares, supply chain financing arrangements, patent cross-licensing, and blockchain-based …

Lost In Transplantation: Modern Principles Of Secured Transactions Law As Legal Transplants, Charles W. Mooney Jr.

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This manuscript will appear as a chapter in a forthcoming edited volume published by Hart Publishing, Secured Transactions Law in Asia: Principles, Perspectives and Reform (Louise Gullifer & Dora Neo eds., forthcoming 2020). It focuses on a set of principles (Modern Principles) that secured transactions law for personal property should follow. These Modern Principles are based on UCC Article 9 and its many progeny, including the UNCITRAL Model Law on Secured Transactions. The chapter situates the Modern principles in the context of the transplantation of law from one legal system to another. It draws in particular on Alan Watson’s pathbreaking …

Conclusion: Law As Scapegoat, Cary Coglianese

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Populist nationalist movements have been on the rise around the world in recent years. These movements have tapped into, and fueled, a deep anger among many members of the public. Especially in the face of stagnant or declining economic prospects—as well as expanding inequality—much anger has been directed at minorities and migrants. Politicians with authoritarian tendencies have sought to leverage such public anger by reinforcing tendencies to scapegoat others for their society’s problems. In this paper, I show that laws and regulations—like migrants—can be framed as “the other” too and made into scapegoats. With reference to developments in Brazil, the …

Dismantling “Dilemmas Of Difference” In The Workplace, Rangita De Silva De Alwis, Sarah Heberlig, Lindsay Holcomb

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Over the course of six months, the University of Pennsylvania Carey Law School’s class “Women, Law, and Leadership” interviewed 55 women between the ages of 25 and 85, all leaders in their respective fields. Nearly half of the women interviewed were women of color, and 10 of the women lived and worked in countries other than the U.S., spanning across Europe, Africa, and Southeast Asia. Threading together the common themes touched upon in these conversations, we gleaned a number of novel insights, distinguishing the leadership trajectories pursued by women who have risen to the heights of their professions. Through thousands …

The American Pathology Of Inequitable Access To Medical Care, Allison K. Hoffman, Mark A. Hall

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What most defines access to health care in the United States may be its stark inequity. Daily headlines in top newspapers paint the highs and lows. Articles entitled: “We Mapped the Uninsured. You’ll notice a Pattern: They tend to live in the South, and they tend to be poor” and op-eds with titles like “Do Poor People Have a Right to Health Care?” and “What it’s Like to Be Black and Pregnant when you Know How Dangerous That Can Be” run side-by-side with headlines touting “The Operating Room of the Future,^” and advances in gene therapy that promise cures …

Due Process In International Antitrust Enforcement: An Idea Whose Time Has Come, Christopher S. Yoo

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The past year has witnessed an upsurge of international interest in due process in antitrust enforcement, reflected in two new comparative studies and International Competition Network’s (ICN’s) May 2019 adoption of its Recommended Practices for Investigative Process and Framework for Competition Agency Procedures and the Organization for Economic Cooperation and Development (OECD) Competition Committee’s discussion of the Draft Recommendation on Transparency and Procedural Fairness in Competition Law Enforcement in June 2019. This article reviews those developments, traces key differences among them, and looks ahead to what comes next.

Codifying A Sharia-Based Criminal Law In Developing Muslim Countries, Paul H. Robinson

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This paper reproduces presentations made at the University of Tehran in March 2019 as part of the opening and closing remarks for a Conference on Criminal Law Development in Muslim-Majority Countries. The opening remarks discuss the challenges of codifying a Shari’a-based criminal code, drawing primarily from the experiences of Professor Robinson in directing codification projects in Somalia and the Maldives. The closing remarks apply many of those lessons to the situation currently existing in Iran. Included is a discussion of the implications for Muslim countries of Robinson’s social psychology work on the power of social influence and internalized norms that …

Regulating E-Cigarettes: Why Policies Diverge, Eric A. Feldman

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This paper, part of a festschrift in honor of Professor Malcolm Feeley, explores the landscape of e-cigarette policy globally by looking at three jurisdictions that have taken starkly different approaches to regulating e-cigarettes—the US, Japan, and China. Each of those countries has a robust tobacco industry, government agencies entrusted with protecting public health, an active and sophisticated scientific and medical community, and a regulatory structure for managing new pharmaceutical, tobacco, and consumer products. All three are signatories of the World Health Organization’s Framework Convention on Tobacco Control, all are signatories of the Agreement on Trade-Related Aspects of Intellectual Property Rights, …

Exclusionary Megacities, Wendell Pritchett, Shitong Qiao

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Human beings should live in places where they are most productive, and megacities, where information, innovation and opportunities congregate, would be the optimal choice. Yet megacities in both China and the U.S. are excluding people by limiting housing supply. Why, despite their many differences, is the same type of exclusion happening in both Chinese and U.S. megacities? Urban law and policy scholars argue that Not-In-My-Backyard (NIMBY) homeowners are taking over megacities in the U.S. and hindering housing development therein. They pin their hopes on an efficient growth machine that makes sure “above all, nothing gets in the way of building.” …

A Brief Summary And Critique Of Criminal Liability Rules For Intoxicated Conduct, Paul H. Robinson

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This essay provides an overview of the legal issues relating to intoxication, including the effect of voluntary intoxication in imputing to an offender a required offense culpable state of mind that he may not actually have had at the time of the offense; the effect of involuntary intoxication in providing a defense by negating a required offense culpability element or by satisfying the conditions of a general excuse; the legal effect of alcoholism or addiction in rendering intoxication involuntary; and the limitation on using alcoholism or addiction in this way if the offender can be judged to be reasonably responsible …

The Global Diffusion Of Law: Transnational Crime And The Case Of Human Trafficking, Beth A. Simmons, Paulette Lloyd, Brandon M. Steward

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The past few decades have seen the proliferation of new laws criminalizing certain transnational activities, from money laundering to corruption; from insider trading to trafficking in weapons and drugs. Human trafficking is one example. We argue criminalization of trafficking in persons has diffused in large part because of the way the issue has been framed: primarily as a problem of organized crime rather than predominantly an egregious human rights abuse. Framing human trafficking as an organized crime practice empowers states to confront cross border human movements viewed as potentially threatening. We show that the diffusion of criminalization is explained by …

Women’S Human Rights And Migration: Sex-Selective Abortion Laws In The United States And India, Rangita De Silva De Alwis

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Sital Kalantry’s Women’s Human Rights and Migration: Sex Selective Abortion Laws in the United States and India addresses a long-existing gap in feminist theory at the intersection of a migrant woman’s experience and culturally motivated reproductive decisions. By recognising the possibility that ‘practices that are oppressive to women in one country context may not have a negative impact on women in another country context’ Kalantry takes an important step in creating a framework for evaluating competing human rights interests within the complex cultural contexts that arise in migrant-receiving countries. Her proposed framework rejects the decontextualisation and politicisation of the migrant …

Women And The Making Of The Tunisian Constitution, Rangita De Silva De Alwis, Anware Mnasri, Estee Ward

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This article attempts to glean from field interviews and secondary sources some of the sociopolitical complexities that underlay women’s engagement in Tunisia’s 2011-14 constitution-making process. Elucidating such complexities can provide further insight into how women’s engagement impacted the substance and enforceability of the constitution’s final text. We argue that, in spite of longstanding roadblocks to implement and enforce constitutional guarantees, the greater involvement of Tunisian women in the constitution drafting process did make a difference in the final gender provisions of Tunisia’s constitution. Although not all recommendations were adopted, Tunisian women were able to use an autochthonous process to edify …

Sovereignty Considerations And Social Change In The Wake Of India's Recent Sodomy Cases, Deepa Das Acevedo

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American constitutional law scholars have long questioned whether courts can really drive social reform, and this position remains largely unchallenged even in the wake of recent landmark decisions affecting the LGBT community. In contrast, court watchers in India — spurred by developments in a special type of legal action developed in the late 1970s known as “public interest litigation,” or “PIL” — have only recently begun questioning the judiciary’s ability to promote progressive social change. Indian scholarship on this point has veered between despair that PIL cases no longer reliably produce good outcomes for India’s most disadvantaged, and optimism that …

Procedure And Pragmatism, Stephen B. Burbank

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In this essay, prepared as part of a festschrift for the Italian scholar, Michele Taruffo, I portray him as a pragmatic realist of the sort described by Richard Posner in his book, Reflections on Judging. Viewing him as such, I salute Taruffo for challenging the established order in domestic and comparative law thinking about civil law systems, the role of lawyers, courts and precedent in those systems, and also for casting the light of the comparative enterprise on common law systems, particularly that in the United States. Speaking as one iconoclast of another, however, I also raise questions about Taruffo’s …

Presidential War Powers As An Interactive Dynamic: International Law, Domestic Law, And Practice-Based Legal Change, Curtis A. Bradley, Jean Galbraith

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There is a rich literature on the circumstances under which the United Nations Charter or specific Security Council resolutions authorize nations to use force abroad, and there is a rich literature on the circumstances under which the U.S. Constitution and statutory law allows the President to use force abroad. These are largely separate areas of scholarship, addressing what are generally perceived to be two distinct levels of legal doctrine. This Article, by contrast, considers these two levels of doctrine together as they relate to the United States. In doing so, it makes three main contributions. First, it demonstrates striking parallels …

Governing Disasters: The Challenge Of Global Disaster Law And Policy, Eric A. Feldman, Chelsea Fish

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This chapter uses the analytical framework of transnational legal ordering (TLO) developed by Halliday and Shaffer and applies it to the area of law and disasters. In contrast to the increasingly transnational legal nature of social ordering highlighted by Halliday and Shaffer, it argues that the emergence of transnational regulatory networks and cross-border principles or policies in the area of disaster management has been uneven and incomplete. Although there are many factors that help to explain why the law/disasters area has resisted the trend toward “transnationalization,” two stand out. One is the relative dearth of national laws and policies governing …

East Asia, Investment, And International Law: Distinctive Or Convergent?, Beth A. Simmons

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International investment agreements (IIAs) are the primary legal instruments designed to protect and encourage foreign direct investment world-wide. This article argues that Asia has used IIAs just as much as have other regions of the world to attract foreign direct investment, but that Asia’s pattern of agreement provisions is somewhat distinctive. States in East and Southeast Asia have tended to enter into agreements that strike a balance somewhat more favorable to host states than to foreign firms, at least when compared to the rest of the world. This may be due to high growth in the region, which tends to …

Corporate Law Doctrine And The Legacy Of American Legal Realism, Edward B. Rock

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In this contribution to a symposium on "Legal Realism and Legal Doctrine," I examine the role that jurisprudence plays in corporate law doctrine. Through an examination of paired cases from the United States and United Kingdom, I offer a case study of the contrasting influence on corporate law judging of American Legal Realism versus traditional U.K. Doctrinalism.

Specialist judges in both systems, aided by specialist lawyers, clearly identify and understand the core policy issues involved in a dispute and arrive at sensible results. Adjusting for differences in background law and institutions, it seems likely that the disputes would ultimately be …

Migrant Workers' Access To Justice At Home: Nepal, Sarah Paoletti, Eleanor Taylor-Nicholson, Bandita Sijapati, Bassina Farbenblum

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Nepal’s citizens engage in foreign employment at the highest per capita rate of any other country in Asia, and their remittances account for 25 percent of the country’s GDP. The Middle East is now the most popular destination for Nepalis--nearly 700,000 were working in the Middle East in 2011 on temporary labor contracts. For some Nepalis, working abroad provides much-needed household wealth. For others, their contributions to Nepal come at great personal cost. Migrant workers in the Gulf, for example, routinely report wage theft, lack of time off and unsafe and unhealthy working conditions. Some migrant workers report psychological and …

No Alternative: Resolving Disputes Japanese Style, Eric Feldman

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This article critiques the simple black/white categorisation of mainstream versus alternative dispute resolution, and argues that what is needed is a cartography of dispute resolution institutions that maps the full range of approaches and traces their interaction. It sketches the first lines of such a map by describing two examples of conflict resolution in Japan. Neither can justly be called “alternative”, yet neither fits the mould of what might be called mainstream or classical dispute resolution. One, judicial settlement, focuses on process; the other, compensating victims of the Fukushima disaster, engages a specific event. Together, they help to illustrate why …

Private Enforcement Of Statutory And Administrative Law In The United States (And Other Common Law Countries), Stephen B. Burbank, Sean Farhang, Herbert M. Kritzer

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Our aim in this paper, which was prepared for an international conference on comparative procedural law to be held in July 2011, is to advance understanding of private enforcement of statutory and administrative law in the United States, and, to the extent supported by the information that colleagues abroad have provided, of comparable phenomena in other common law countries. Seeking to raise questions that will be useful to those who are concerned with regulatory design, we briefly discuss aspects of American culture, history, and political institutions that reasonably can be thought to have contributed to the growth and subsequent development …

Poisoning The Next Apple? The America Invents Act And Individual Inventors, David S. Abrams, R. Polk Wagner

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The Leahy-Smith America Invents Act, the most significant patent law reform effort in two generations, has a dark side: It seems likely to decrease the patenting behavior of small inventors, a category which occupies special significance in American innovation history. In this paper we empirically predict the effects of the major change in the law: a shift in the patent priority rules from the United States’ traditional “first-to-invent” system to the predominant “first-to-file” system. While there has been some theoretical work on this topic, we use the Canadian experience with a similar change as a natural experiment to shed …

The Triumph And Tragedy Of Tobacco Control: A Tale Of Nine Nations, Eric A. Feldman, Ronald Bayer

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The use of law and policy to limit tobacco consumption illustrates one of the greatest triumphs of public health in the late twentieth and early twenty-first centuries, as well as one of its most fundamental failures. Overall decreases in tobacco consumption throughout the developed world represent millions of saved lives and unquantifiable suffering averted. Yet those benefits have not been equally distributed. The poor and the undereducated have enjoyed fewer of the gains. In this review, we build on existing tobacco control scholarship and expand it both conceptually and comparatively. Our focus is the social gradient of smoking both within …

International Idealism Meets Domestic-Criminal-Procedure Realism, Stephanos Bibas, William W. Burke-White

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Though international criminal justice has developed into a flourishing judicial system over the last two decades, scholars have neglected institutional design and procedure questions. International criminal-procedure scholarship has developed in isolation from its domestic counterpart but could learn much realism from it. Given its current focus on atrocities like genocide, international criminal law’s main purpose should be not only to inflict retribution, but also to restore wounded communities by bringing the truth to light. The international justice system needs more ideological balance, more stable career paths, and civil-service expertise. It also needs to draw on the domestic experience of federalism …

Undressing Difference: The Hijab In The West, Anita L. Allen

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On March 15, 2006, French President Jacques Chirac signed into law an amendment to his country’s education statute, banning the wearing of "conspicuous" signs of religious affiliation in public schools. Prohibited items included "a large cross, a veil, or skullcap." The ban was expressly introduced by lawmakers as an application of the principle of government neutrality, "du principe de laïcité." Opponents of the law viewed it primarily as an intolerant assault against the hijab, a head and neck wrap worn by many Muslim women around the world. In Politics of the Veil, Professor Joan Wallach Scott …

Is Open Source Software The New Lex Mercatoria?, Fabrizio Marrella, Christopher S. Yoo

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Early Internet scholars proclaimed that the transnational nature of the Internet rendered it inherently unregulable by conventional governments. Instead, the Internet would be governed by customs and practices established by the end user community in a manner reminiscent of the lex mercatoria, which spontaneously emerged during medieval times to resolve international trade disputes independently and autonomously from national law. Subsequent events have revealed these claims to have been overly optimistic, as national governments have evinced both the inclination and the ability to exert influence, if not outright control, over the physical infrastructure, the domain name system, and the content flowing …