Comparative and Foreign Law Commons^™

Global Experimentalist Governance, Grainne De Burca, Robert O. Keohane, Charles F. Sabel

Faculty Scholarship

This article outlines the concept of Global Experimentalist Governance (GXG). GXG is an institutionalized transnational process of participatory and multilevel problem solving, in which particular problems, and the means of addressing them, are framed in an open-ended way, and subjected to periodic revision by various forms of peer review in light of locally generated knowledge. GXG differs from other forms of international organization and transnational governance, and is emerging in various issue areas. The Montreal Protocol on ozone-depleting substances is used to illustrate how GXG functions. The conditions for the emergence of GXG are specified, as well as some of …

Ongoing Issues In Russian Corporate Governance, Merritt B. Fox

Faculty Scholarship

This Article concerns Russian corporate governance today. It starts by arguing that there are fundamental differences between the policy questions raised by SOEs and those raised by non-SOEs and that the analysis needs to separate out these two kinds of corporations. The Article then goes on to consider several ongoing issues relating to non-SOEs. To start, it suggests the need for a set of rules, backed by reliably applied stiff sanctions, requiring disclosure of all situations where a person, by himself or as a member of a coordinated group, is the beneficial owner of sufficient shares to be able to …

Equality In Asia, Kate O'Regan, Madhav Khosla

Faculty Scholarship

If the right to equality promises more than it can ever deliver, it is also a right whose text and application reflects the history of the society in which it applies. The right to equality is thus particularly challenging for comparative law. Although it is found in nearly every modern democratic constitution, the formulation, interpretation and application of the right varies markedly and it accordingly presents acutely difficult questions for a study such as this. The difficulties not only arise from the differences in historical, socio-economic and political context, but also from differing conceptions of equality itself. In this brief …

A Reply To "Hollow Spaces", George A. Bermann, Jack J. Coe Jr., Christopher R. Drahozal, Catherine A. Rogers

Faculty Scholarship

This short essay responds to Chip Brower's thoughtful and meticulous critique of Tentative Draft No. 2 of the Restatement Third of the U.S. Law of International Commercial Arbitration. While we appreciate the concerns he raises, we disagree with the conclusions he draws both about the Restatement and the drafting process. We address here what we understand to be Professor Brower's major criticisms of the work.

Investor-State Contracts, Host-State “Commitments” And The Myth Of Stability In International Law, Lise Johnson, Oleksandr Volkov

Columbia Center on Sustainable Investment Staff Publications

A new de facto rule has emerged in international investment law that emphasizes and prioritizes investment stability, imposing liability on host governments for a wide range of public interest measures deemed to interfere with “commitments” given to foreign investors by host governments. The arbitral decisions from which this new rule has emanated in treaty-based investment disputes resolve types of claims that have long been familiar to domestic jurisdictions. Yet, as this article uncovers through a comparative law analysis of factually similar cases decided under United States law over roughly the past 200 years, the approaches taken and pronouncements issued by …

Foreign Affairs Federalism: A Revisionist Approach, Daniel Abebe, Aziz Z. Huq

Faculty Scholarship

In April 2010, the Arizona legislature enacted the Support Our Law Enforcement and Safe Neighborhoods Act. Commonly known as SB 1070, the law created a slate of new criminal offenses and arrest powers covering aliens within Arizona's borders. SB 1070 proved divisive. It inspired copycat legislation in several states, provoked sharp criticism from the legal academy, and – most relevant here – catalyzed a lawsuit by the U.S. Department of Justice seeking a preliminary injunction against the state law on the ground that it was preempted by federal law. Initially, the federal government's litigation prospects seemed dim. One term before …

One Voice Or Many: The Political Question Doctrine And Acoustic Dissonance In Foreign Affairs, Daniel Abebe

Faculty Scholarship

This article examines the merits of the one-voice presumption of the political question doctrine. It has two goals. First, it aims to unpack the underlying assumptions supporting a presumption in favor of one voice in foreign affairs to determine the conditions under which the presumption holds. The traditional account about speaking with one voice focuses on the benefits of centralizing decision making in foreign affairs. The creation of foreign policy and the provision of national security, among other things, are public goods best provided by the national government, rather than the states. Relative to the national government, the states are …

New Modes Of Pluralist Global Governance, Gráinne De Burca, Robert O. Keohane, Charles F. Sabel

Faculty Scholarship

This paper describes three modes of pluralist global governance. Mode One refers to the creation and proliferation of comprehensive, integrated international regimes on a variety of issues. Mode Two describes the emergence of diverse forms and sites of cross-national decision making by multiple actors, public and private as well as local, regional and global, forming governance networks and “regime complexes,” including the orchestration of new forms of authority by international actors and organizations. Mode Three, which is the main focus of the paper, describes the gradual institutionalization of practices involving continual updating and revision, open participation, an agreed understanding of …

Export Pioneers In Latin America, Charles F. Sabel, Eduardo Fernández-Arias, Ricardo Hausmann, Andrés Rodriguez-Clare, Ernesto Stein

Faculty Scholarship

Export Pioneers in Latin America analyzes a series of case studies of successful new export activities throughout the region to learn how pioneers jump-start a virtuous process leading to economic transformation. The cases of blueberries in Argentina, avocados in Mexico, and aircraft in Brazil illustrate how an initially successful export activity did not stop with the discovery of a single viable product, but rather continued to evolve. The book explores the conjecture that costly burdens to entrepreneurial self-discovery (due to the deterrent effects of imitation by competitors) have held back potential exporters in post-reform Latin America. It also considers the …

Discussion At Second U.S.-China Rule Of Law Dialogue, Stanley B. Lubman

Hong Yen Chang Center for Chinese Legal Studies

Professor Cheng analyzes the foundation and structure of the present configuration of Chinese legal institutions and its desirable future in a very small number of pages--- a brave and suggestive approach. (I am avoiding the term “Chinese legal system” for reasons that will be clear.) She begins by noting NPC Chairman Wu Banguo’s recent statement that China has now created “a socialist system of laws with Chinese characteristics” (hereafter SSLCC).

Reconciling European Union Law Demands With The Demands Of International Arbitration, George A. Bermann

Faculty Scholarship

European Union ("EU" or "Union") law and the law of international arbitration have traditionally occupied largely separate worlds, as if arbitral tribunals would rarely be the fora for the resolution of EU law claims and as if EU law, in turn, had little concern with arbitration. For several reasons, this pattern has recently been altered, although the relationship between EU law and international arbitration law is at present anything but settled. From the present perspective, the past looks like an age of innocence, for as these two worlds have begun to intersect, they have not done so entirely harmoniously.

Part …

Universal Exceptionalism In International Law, Anu Bradford, Eric A. Posner

Faculty Scholarship

A trope of international law scholarship is that the United States is an "exceptionalist" nation, one that takes a distinctive (frequently hostile, unilateralist, or hypocritical) stance toward international law. However, all major powers are similarly "exceptionalist," in the sense that they take distinctive approaches to international law that reflect their values and interests. We illustrate these arguments with discussions of China, the European Union, and the United States. Charges of international-law exceptionalism betray an undefended assumption that one particular view of international law (for scholars, usually the European view) is universally valid.

The Flaws Of Foreign Affairs Legalism, Daniel Abebe, Eric A. Posner

Faculty Scholarship

Foreign affairs legalism, the dominant approach in academic scholarship on foreign relations law, holds that courts should abandon their traditional deference to the executive in foreign relations, and that courts and Congress should take a more activist ole in foreign relations than they have in the past. Foreign affairs legalists believe that greater judicial involvement in foreign relations would curb executive abuses and promote adherence to international law. This Article argues that foreign affairs legalism rests on implausible assumptions about the incentives and capacities of courts. In U.S. history, the executive has given more support to international law than the …

A Populist Threat To China's Courts?, Benjamin L. Liebman

Faculty Scholarship

Is the Chinese party-state too responsive to public opinion? In the case of the courts, this may be the case. Western literature has devoted extensive attention to the problems in the Chinese legal system, in particular in the courts, describing a system that continues to be undermined by a range of problems, from corruption to lack of competence to continued Communist Party intervention. Likewise, existing literature describes a legal system that often is unresponsive to individual demands for justice. In this chapter, I examine another possibility: that one impediment to the development of courts that are able to protect individual …

Comparative Law: Problems And Prospects, George A. Bermann, Patrick Glenn, Kim Lane Scheppele, Amr Shalakany, David V. Snyder, Elizabeth Zoller

Faculty Scholarship

The following is an edited transcript of the closing plenary session of the XVIIIth International Congress of Comparative Law. The session took place on Saturday, July 31, 2010, in Washington, D.C., at the conclusion of the week-long congress, which is held quadrennially by the International Academy of Comparative Law (Académie Internationale de Droit Comparé). The remarks were given in a mix of French and English, but for ease of reading the transcript below is almost entirely in English.

Inclusive Constitutional Comparison: Reflections On India's Sodomy Decision, Madhav Khosla

Faculty Scholarship

Recent years have witnessed an outpouring of literature evaluating whether judges should refer to foreign law in resolving domestic legal disputes. A range of theories now posit constitutional comparison, outlining its benefits and highlighting its promise. Yet the support for such a practice is deeply qualified; comparative scholars narrowly limit the nations that should be considered while performing comparative study. This essay in comparative law theory reflects upon India's recent sodomy decision, Naz Foundation v. Government of NCT of Delhi, to evaluate which countries should be part of the comparative law project. In Naz, the Delhi High Court …

The United States Supreme Court: An Introduction, Bert I. Huang

Faculty Scholarship

The Supreme Court of the United States has always occupied a center place in the comparative study of judicial institutional design and the role of courts. In this roundtable discussion, National Taiwan University College of Law is honored to have Professor Bert I. Huang from Columbia Law School, United States, who had served as the law clerk of Supreme Court Justice David H. Souter, to unveil the ways that the U.S. Supreme Court functions by introducing the certiorari process and the system of law clerks. Based on his own experience, Professor Huang provides his insight on the institution of law …

Changing Media, Changing Courts, Benjamin L. Liebman

Faculty Scholarship

This chapter examines court-media relations in China and argues that such relations are increasingly a two-way street. Media coverage is forcing the courts to act more carefully — and perhaps fairly. But pressure from the courts is also resulting in greater attention to factual reporting and professional standards in the media. This interactive relationship reflects the position of the courts and media as institutions competing for authority within the Chinese political system. It also suggests that there is significant room for ground-up development of both media and the courts.

The first section discusses the growth of media coverage of legal …

International Agreements, Internal Heterogeneity, And Climate Change: The "Two Chinas" Problem, Daniel Abebe, Jonathan S. Masur

Faculty Scholarship

Every quantitative forecast of Chinese emissions – save for two important exceptions – uses only national-level data, a methodological weakness that can wash out distinctions between East and West. Of the two studies that employ sub-national data, one projects higher emissions than any of the national-level studies; the other projects much higher emissions than any other study. We read this as suggesting that Chinese carbon emissions over the forthcoming several decades may be significantly greater than the standard models have anticipated, with correspondingly higher costs to China from any agreement to curb carbon emissions. In light of the importance of …

Individualized Service Provision In The New Welfare State: Lessons From Special Education In Finland, Charles F. Sabel, Annalee Saxenian, Reijo Miettinen, Peer Hull Kristensen, Jarkko Hautamäki

Faculty Scholarship

The essay is four parts. Part 2 sets out the theoretical frame of the argument. It explains briefly why social solidarity increasingly depends on the provision of capacitating or enabling circumstances; why those services must increasingly be adapted to individual needs to be effective; and what is organizationally problematic (from the point of view of current theories of organization) about the success of countries such as Finland, Denmark and the US in delivering these services. It sketches two paths — a Nordic way, building on traditional professions, and a roundabout, US way, re-building broken bureaucracies originally intended as substitutes for …

The Structure Of Terrorism Threats And The Laws Of War, Matthew C. Waxman

Faculty Scholarship

This article considers a major debate in the American and European counterterrorism analytic community – whether the primary terrorist threat to the West is posed by hierarchical, centralized terrorist organizations operating from geographic safe havens, or by radicalized individuals conducting a loosely organized, ideologically common but operationally independent fight against western societies – and this debate’s implications for both jus ad bellum and jus in bello. Analysis of how the law of armed conflict might be evolving to deal with terrorism should engage in more nuanced and sophisticated examination of how terrorism threats are themselves evolving. Moreover, the merits of …

Restating The U.S. Law Of International Commercial Arbitration, George A. Bermann

Faculty Scholarship

The American Law Institute's new Restatement of the U.S. Law of International Commercial Arbitration is only barely underway, and the reporters began with a chapter, on the recognition and enforcement of awards, that should represent for them a comfort zone of sorts within the overall project. Yet already a number of difficult, and to some extent unexpectedly difficult, questions have arisen. Some of the difficulties stem from the very nature of an ALl Restatement project. Others stem from the nature of arbitration itself and, more particularly, from the inherent tension between arbitral and judicial functions in the arbitration arena. Still …

On The Origins Of Originalism, Jamal Greene

Faculty Scholarship

For all its proponents' claims of its necessity as a means of constraining judges, originalism is remarkably unpopular outside the United States. Recommended responses to judicial activism in other countries more typically take the form of minimalism or textualism. This Article considers why. Ifocus particular attention on the political and constitutional histories of Canada and Australia, nations that, like the United States, have well-established traditions of judicial enforcement of a written constitution, and that share with the United States a common law adjudicative norm, but whose political and legal cultures less readily assimilate judicial restraint to constitutional historicism. I offer …

Executions, Deterrence And Homicide: A Tale Of Two Cities, Franklin Zimring, Jeffrey Fagan, David T. Johnson

Faculty Scholarship

We compare homicide rates in two quite similar cities with vastly different execution risks. Singapore had an execution rate close to 1 per million per year until an explosive twentyfold increase in 1994-95 and 1996-97 to a level that we show was probably the highest in the world. Then over the next 11 years, Singapore executions dropped by about 95%. Hong Kong, by contrast,has no executions all during the last generation and abolished capital punishment in 1993. Homicide levels and trends are remarkably similar in these two cities over the 35 years after 1973, with neither the surge in Singapore …

Addressing Judicial Activism In The Indian Supreme Court: Towards An Evolved Debate, Madhav Khosla

Faculty Scholarship

The Indian Supreme Court has invited a great deal of interest for its alleged activism and the role that it has begun to play in Indian governance. Recent years have been witness to substantial debate on the Court's functioning, with scholars positing views and raising concerns with considerable passion. This paper analyzes the judicial activism discourse in the Indian Supreme Court by focusing on the contributions of Professor Upendra Baxi. It argues that, despite the attention the Court has received on the question of judicial activism, the debate in this area has, for the most part, failed to engage with …

U.S. Class Actions And The "Global Class", George A. Bermann

Faculty Scholarship

Robert Casad's articles on comparative civil procedure were among the first comparative law pieces that caught my eye when, as a freshly-minted associate at a leading New York law firm, I found myself leafing through comparative law journals, rather than amassing billable hours. I had no idea then that comparative law could be as fascinating as I have come to find it, certainly not in a field like civil procedure where the dividends of comparative law work were by no means obvious to me. (Comparative law was not even taught in any guise at Yale Law School in the late …

Regional Emergencies Under Article 356: The Extent Of Judicial Review, Sudhir Krishnaswamy, Madhav Khosla

Faculty Scholarship

In Rameshwar Prasad v. Union of India, the Supreme Court reviewed the constitutional validity of the Union's dissolution of the Bihar State legislative assembly and the proclamation of President's rule under Article 356 of the Constitution. The Court held that the dissolution of the State assembly and the proclamation of President's rule was unconstitutional and declared that it had the power to restore a dissolved assembly in an appropriate case. However, as elections to the Bihar assembly had been notified prior to the decision of the Court, it refrained from restoring the State assembly in this case. Rameshwar Prasad …

The Uncertain Future Of Legal Reform In China, Stanley B. Lubman

Hong Yen Chang Center for Chinese Legal Studies

This talk looks at how far Chinese law reform has come since 1979, possible further reforms, and obstacles to meaningful reform.

Legal Uncertainty In Foreign Investment In China: Causes And Management, Stanley B. Lubman

Hong Yen Chang Center for Chinese Legal Studies

My talk today will be based on an article – “Looking for Law in China” – that was published last year. In it, looked at Chinese law from the perspective of foreign investors that have had to cope with the uncertainty of a business environment in which legal institutions have been vague, incomplete and weak. I wrote, and today speak to you, from under two hats, that of a scholar and that of practicing lawyer, since for over thirty years I have combined those two careers. My observations here, then, are not just those from the academic ivory tower but …

Scandal, Sukyandaru, And Chouwen, Benjamin L. Liebman

Faculty Scholarship

Jose Canseco's use of steroids, the sale of used girls' underwear in Japan, penile mutilation, and the moral failings of both Bill Clinton and former Japanese Prime Minister Sosuke Uno are not topics that often appear side by side, much less in a scholarly work of comparative law. And few law professors have the chance to publish a book whose jacket features a picture of a scantily clad woman. In Secrets, Sex and Spectacle, Mark West does both. He also does much more, unraveling the interplay of social and legal rules that influence the formation of scandal and spectacle …