Comparative and Foreign Law Commons^™

U.S. Shareholder Activism: Convergence With Japan, Nobuhisa Ishizuka

Faculty Scholarship

To many observers long accustomed to slow, incremental change, the current boom in shareholder activism in Japan comes as a surprise. The opening for U.S.-style activists was created by market conditions that eventually resulted in policy changes that attracted significant numbers of foreign investors. However, even the current market would not have emerged without a parallel evolution in U.S. hedge-fund tactics, which gradually shifted over a number of years to a sophisticated and more nuanced approach, one based on partnership and dialogue with target companies, in contrast to adversarial relationships and public campaigns. This article attempts to place current trends …

Performing Legality: When And Why Chinese Government Leaders Show Up In Court, Rachel E. Stern, Jieun Kim, Benjamin L. Liebman

Faculty Scholarship

Since 2015, Chinese government leaders have been required by law to appear in court when citizens sue their unit or to designate an employee to take their place. We frame this policy as a demand on leaders to “perform legality,” sacrificing their time to demonstrate how seriously the government takes legal proceedings. Drawing on an original dataset of 127,529 administrative lawsuits decided between 2015 and 2018, we investigate how often government leaders appear in Chinese courtrooms, and for which kinds of cases. Overall, leaders attended 24.72% of hearings. Contrary to the State Council’s instructions to prioritize attendance in lawsuits that …

Resilient Dispute Resolution Systems For International Energy Conflicts, Guillermo J. Garcia Sanchez

Faculty Scholarship

Energy-related conflicts are on the rise, spanning diverse issues such as the impacts of rare mineral mining on local communities, the impacts of sanctions on energy investments due to the Russia-Ukraine war, and the impacts of expanded subsidies on the electric vehicle and solar panel industries. Increasingly, companies, communities, and governments are clashing over the challenges of pursuing disparate and sometimes competing energy policies. This Article argues that dispute resolution mechanisms in the energy investment sector must be fundamentally rethought. Traditional semi-adjudicatory models, which focus on winners and losers, fail to accommodate the complex and multifaceted nature of contemporary energy …

Transforming Blood Management Systems In Developing Countries Through Technological And Artificial Intelligence-Driven Innovations, Sandeep Bhargava, Shaun Aaron Abram, Srividhya Ragavan

Faculty Scholarship

It is critical to ensure the safe and quality supply of blood among various stakeholders; however, this remains a significant challenge in today’s world, especially in developing countries. These countries face severe problems, including blood shortages, fragmented regulatory frameworks, and inconsistent quality control measures. To tackle these challenges, countries like India are trying to implement the use of artificial intelligence (AI) and its derivative platforms to transform blood collection, testing, storage, and distribution by enabling interoperability, real-time compliance monitoring, automated donor screening, optimized inventory management, and advanced component separation. The article argues that developing countries must adopt both regulatory reform …

Comparative Authoritarian Law, Madhav Khosla, Benjamin L. Liebman

Faculty Scholarship

In recent years, comparative constitutional lawyers have turned their attention to the study of democratic backsliding. However, such scholarship is yet to draw on the now extensive literature on traditional authoritarian systems. The bifurcation of regime type that has structured comparative legal research for decades — for comparative constitutional lawyers and for scholars of specific authoritarian regions — is now under strain. With the global rise of authoritarianism and the growing use of law by authoritarian states, the world is harder to neatly separate into two camps than it once might have been. This Article reflects on how we might …

Cold Comfort: Japan’S “Comfort Women” Litigation Under Transnational Law, Timothy Webster

Faculty Scholarship

Transnational human rights litigation has emerged as a powerful tool to remediate state and corporate abuses. Courts, however, rarely evince the same enthusiasm for these lawsuits as practitioners, scholars, and activists. For the past thirty-five years, “comfort women,” or survivors of wartime sexual exploitation, have used transnational litigation to seek redress from the Japanese government. Yet they have lost nearly all their cases. This Article uses ten “comfort women” lawsuits from Japan to test the limits of transnational human rights litigation. While judges rarely found for the comfort women, their verdicts nonetheless advanced the redress issue by showing the illegality …

Kim Gyeong-Seok And The Origins Of Northeast Asia’S Corporate Accountability Movement For War And Colonialism, Timothy Webster

Faculty Scholarship

Campaigns to review Japan’s wartime legacy and legal liability have recurred throughout postwar Japan. While most of these efforts have targeted the Japanese government, an important subset of actors has also focused on the role of Japanese corporations. And perhaps no one played a larger role in directing attention towards Japan, Inc. than Kim Gyeong-seok, a Korean forced laborer in the 1940s turned redress activist in the 1990s. As described in this Article, Kim’s 1991 lawsuit against Nihon Kokan launched the corporate accountability piece of the reparations project, an endeavor that continues to create ripples even now. The Article briefly …

Comparison Of Groundwater Ownership Regimes In Ten Jurisdictions Across Five Continents, Gabriel Eckstein, Theo Buchler, Caleb Cook, Heping Dang, Robyn Stein, Stefano Burchi, Gabriela Cuadrado Quesada, Juan Pablo Galeano, Eric Garner, Amy Hardberger, Imad Antoine Ibrahim, Oudi Kgomongwe

Faculty Scholarship

The regulation of groundwater remains underdeveloped globally and often lags behind the domestic governance of surface water. As a result, groundwater is often subject to unfettered extraction, uses, and contamination. A clear understanding of ownership is central to the success of domestic regulations. However, the types of ownership regime in place in nations around the world are poorly documented in the academic literature. This study addresses that gap through a comparative analysis of domestic groundwater ownership regimes across ten jurisdictions in nine countries spanning five continents. It identifies three dominant models of groundwater ownership: private ownership, public ownership, and non-ownership …

Genocidal Accusation, Steven Arrigg Koh

Faculty Scholarship

To accuse of genocide — what does it mean? Genocidal accusation is ubiquitous today, evident more in the public square than in any courtroom. At first glance, such accusation seemingly relies on a central assumption: genocidal accusation is critical to preventing atrocity. This Article argues that this widespread assumption is incomplete, obscuring genocidal accusation’s dual nature. In fact, genocidal accusation encompasses not only laudable atrocity prevention (for example, the Rwandan genocide), but also problematic punitive, carceral discourse that brands the “other” as morally polluted (such as President Putin’s Ukraine invasion). It is thus challenging to evaluate such accusation in the …

Symbolic Justice: The Continued Limits Of International Criminal Justice Without A Permanent Prison System, Meg Penrose

Faculty Scholarship

Many people misremember Nuremberg, Tokyo, and the subsequent World War II tribunals. These seminal international tribunals gave the world convictions but largely failed to fully enforce the sentences imposed. Most people do not recall the mass clemency following the World War II tribunals. This Article seeks to fill a scholarly void by explaining why international criminal justice has never matured beyond Nuremberg and Tokyo. The modern ad hoc tribunals, as well as the permanent International Criminal Court (“ICC”), have failed to deliver lasting justice. Much like Nuremberg and Tokyo, the modern tribunals fixate on arrests and convictions and then seemingly …

Trips And Its Futures, Peter K. Yu

Faculty Scholarship

The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) was adopted on 15 April 1994, along with the estab-lishment of the World Trade Organization (WTO). With the WTO’s recent celebration of its thirtieth anniversary, it is high time we explore what the future will hold for this agreement. This chapter begins by revisiting the past to examine whether the TRIPS Agreement would be adopted if it were negotiated today. The chapter then discusses whether WTO members will undertake a major overhaul of this agreement in the future. Taking note of the fast-evolving international norm-setting environment and …

Drive-By Mediation And Other Opportunistic Distortions Of Process, Nancy A. Welsh

Faculty Scholarship

Many states in the United States, along with many nations, have implemented special benefits and privileges to encourage parties’ use of mediation to assist their communication, negotiation, and ultimate resolution of disputes. This is despite how loosely mediation is defined. This Article discusses how vague definitions, paired with special benefits and privileges, are incentivizing both the opportunistic distortion of mediation and the use of mediation for improper purposes. In Texas, for example, judges are extraordinarily limited in their ability to disapprove parents’ mediated child custody agreements—even if there is reason to worry that an agreement is contrary to the best …

Out From The Shadows: Party Documents In Chinese Courts, Benjamin L. Liebman, Eva Gao, Xiaohan Wu, Rachel E. Stern, Margaret Roberts

Faculty Scholarship

The Communist Party’s influence over the Chinese legal system is generally assumed to be behind the scenes, largely invisible to outside observers. Since General Secretary Xi Jinping came to power in 2012, there has been renewed attention within and outside of China to the relationship between the Communist Party and the legal system. Much of this recent writing has emphasized the degree to which Xi’s efforts to affirm Party superiority and break down barriers between the Party and the State reflects a profound shift in governance and a reversal of a decades-long effort to distinguish between Party roles and those …

Redefining Law In China, Zeming Liu, Benjamin L. Liebman

Faculty Scholarship

Although there is a growing body of literature on the role of law under authoritarian regimes, scholars have paid little attention to authoritarian legal ideology or conceptions of legality in contemporary authoritarian states. This Article presents the first in-depth study of the Chinese Communist Party’s recent novel attempt to introduce and implement an official legal ideology under the banner of “Xi Jinping’s Thought on the Rule of Law,” one which aims both to create a definitive theory of law and to offer a guide to China’s legal development. We examine four principal components of this legal ideology: the theoretical definition …

Caste Formalism: The Law And Politics Of Equality In India, Madhav Khosla, Pratap Bhanu Mehta

Faculty Scholarship

In modern constitutional democracies, achieving equality has long been a challenge. In recent years, theorists have focused on understanding the meaning of discrimination and determining when and how discrimination becomes problematic. One critical issue that has long animated discussions on both the general guarantee of equality and the specific goals of anti-discrimination law is the relationship between individuals and groups. If a constitutional order aims to take equality seriously, how should it address the experiences of specific groups historically subjected to discrimination? Indeed, questions of equality and discrimination often converge around the issue of affirmative action, sometimes at the expense …

Competition In The Global Law Market: Offshore Development Of The Statutory "Rule In Hastings-Bass", Andrew P. Morriss

Faculty Scholarship

This Article examines the competitive dynamics in the global law market through the lens of the statutory evolution of the Rule in Hastings-Bass across various International Financial Centers (IFCs). Following the UK Supreme Court's 2013 decision in Pitt v Holt and Futter v Futter, which significantly restricted the judiciary's ability to void trustee decisions under the Rule, seven IFCs (Jersey, Bermuda, The Bahamas, the Dubai International Financial Center, the Cayman Islands, and the British Virgin Islands) enacted statutes to preserve and clarify the Rule within their jurisdictions. These legislative actions highlight the strategic adaptations by IFCs to enhance their legal …

Addressing Missingness In Serialized Bureaucratic Data: The Case Of Chinese Courts, Xiaohan Wu, Margaret Roberts, Rachel E. Stern, Benjamin L. Liebman, Amarnath Gupta, Luke Sanford

Faculty Scholarship

Courts around the world are putting their data online, making information about caseloads, parties, and decisions available to the public. Yet, this data is far from complete, and often only reflects a portion of courts’ dockets. We offer and validate a set of tools for leveraging serialized bureaucratic data from courts to estimate the proportion of cases available to the public and the time courts take to make decisions. Using data from more than 3,000 courts in China, our methods allow us to assess patterns of missingness in court data across provinces and cities by type of case and to …

Tort Law Heterodoxy In China, Benjamin L. Liebman, Rachel E. Stern, Eva Wenwa Gao, Xiaohan Wu

Faculty Scholarship

Chinese courts routinely ask defendants to pay damages without evidence of negligence while relying on concepts such as fairness, substantive justice, or discretion. This chapter examines how Chinese courts arrive at decisions that feel fair or just in cases where they refer to those ideas. Analysis of a dataset of 10,000 judicial decisions in personal injury cases suggests that Chinese courts refer to these concepts when they impose liability on two types of parties: (1) participants in a shared activity and (2) those who control a physical space. By assigning legal responsibility in these cases, Chinese courts acknowledge traumatic harm, …

The "Not Seen" Effect Of International Financial Centers: Innovation In The Global Financial Ecosystem, Charlotte Ku, Andrew P. Morriss

Faculty Scholarship

International Financial Centers (IFCs) are hubs of legal and financial innovation, developing specialized frameworks that facilitate cross-border investment, enhance global capital mobility, and support economic growth. Through jurisdictional competition, professional clustering, and adaptive regulatory frameworks, IFCs have pioneered legal structures that enable enterprises of all sizes to participate in the global economy. Using case studies of the International Business Company, the Limited Liability Company, the Protected Cell Company, and advances in trust law and applying the theoretical frameworks of social scientist Richard Florida and psychologist Mihalyi Csikszentmihalyi, this Article illustrates how IFCs serve as laboratories for financial experimentation, generating widely …

Thc Meets Gnh: Considering Cannabis Policy In Bhutan Through A Gross National Happiness Lens, Jay D. Wexler, Sonam Tshering

Faculty Scholarship

The legal status of cannabis remains a contentious issue globally, with countries adopting divergent approaches to the drug, ranging from strict prohibition to full legalization. In Bhutan, a nation deeply rooted in the holistic philosophy of Gross National Happiness (GNH), cannabis is currently classified as a controlled substance under domestic drug laws. This paper explores the question of whether Bhutan should change its laws regarding cannabis by analyzing decriminalization’s potential impact on Bhutan’s unique justice system, considering GNH principles and the prevalence of wild cannabis growth in the nation. The research will focus on whether Bhutan’s current approach to cannabis …

The Transnationalisation Of Civil Society In East Asia’S War Redress Movement, Timothy Webster

Faculty Scholarship

Transnational human rights litigation is commonly associated with developments in Europe and the Americas during the 1990s. But Asian actors have used legal mobilisation to hold corporate actors to account since at least the 1970s. This chapter charts the first usages of transnational litigation in East Asia’s Word War II redress movement, akin to the Holocaust Restitution movement of the West. Korean and Chinese forced labourers liaised with Japanese attorneys, activists and academics to press compensation claims against Japanese corporations for wartime human rights abuses in Tokyo. Legal mobilisation did not succeed in the traditional sense. Yet, the formation of …

Competitive Populism, Madhav Khosla

Faculty Scholarship

The preoccupation of comparative constitutional lawyers over the past decade or so has been the rise of authoritarian populism. This chapter focuses on one possible pathway that might follow our present political moment: competitive populism. This phase will involve a certain kind of institutional vacuum: the prior institutions, associated with liberal constitutional democracy, will not lend themselves to being rebooted. In reflecting on this possible future, this chapter explores the nature and form of deinstitutionalization that has occurred under authoritarian populism, and the elements that define the emerging constitutional framework. The implication here is that what will be crucial …

China, The Trips Waiver, And The Global Pandemic Response, Peter K. Yu

Faculty Scholarship

This chapter identifies three distinct reasons why China took a middle-of-the-road position in the debate on the COVID-19 TRIPS waiver at the WTO. It also recounts the country’s more assertive position in the run-up to the adoption of the Ministerial Decision on the waiver. Drawing eight lessons from the international debate on the waiver and the subsequent Ministerial Decision, the chapter offers insights into the future role China can or will play in future international policy debates at the intersection of intellectual property and public health, including during the next pandemic.

Contesting And Controlling Abortion In China’S Courts, Molly Bodurtha, Benjamin L. Liebman, Li Chenquian, Xiaohan Wu

Faculty Scholarship

The decision of the United States Supreme Court in Dobbs v. Jackson Women’s Health Organization has brought renewed global attention to how legal systems protect and restrict women’s reproductive autonomy. Central themes have included how the rollback of reproductive rights in the United States coincides with the judiciary’s embrace of a broader “jurisprudence of masculinity” and the relationship between abortion restrictions and authoritarianism, as multiple countries have enacted restrictive measures while undergoing democratic backsliding.

Yet, the scholarly conversation on abortion, democracy, and how courts reflect and entrench gender disparities entirely omits China — the largest authoritarian state and a country …

Framing Indian Federalism, Madhav Khosla

Faculty Scholarship

This article focuses on a set of historical and contemporary developments in Indian constitutionalism that implicate the question of democracy and the question of federalism. Its goal is to connect the design and application of federal powers with what many regard as an important telos of federalism, namely, the promotion of democracy. Towards this end, it holds up for consideration India’s federal model, which, it is suggested, focuses on the presence of a subnational demos rather than the political identity of subnational units. Such an understanding of federalism de-emphasizes the territorial aspect of federalism and allows federal design to accommodate …

Democracy And Defections, Madhav Khosla, Milan Vaishnav

Faculty Scholarship

Within comparative constitutional law, there is an emerging consensus that political fragmentation has weakened political parties and hindered the functioning of legislative bodies. This article examines legal efforts to curb fragmentation in parliamentary systems by prohibiting floor crossing, or “defections” — a constitutional approach that concentrates power within party leaders. It conducts a detailed case study of India, exploring what is arguably the most exten¬sive experiment in anti-defection law and its impact on accountability and representation. The article goes on to analyze similar laws in Israel and South Africa, highlighting the challenges of self-regulation. After evaluating the limitations of narrow …

Evolving Sovereignty Relationships Between Affiliated Jurisdictions: Lessons For Native American Jurisdictions, Vaughan Carter, Charlotte Ku, Andrew P. Morriss

Faculty Scholarship

Though sovereignty is principally associated with governance over a territory and freedom to act in the international arena, this article examines sovereignty as empowerment. The study tests the applicability to Native American jurisdictions of the experiences of fifteen case study jurisdictions presently associated with the United Kingdom, the Netherlands, and France in shared sovereign relationships. The focus is on the evolution of those relationships and opportunities for development where jurisdictions do not attain full control over their affairs. The case studies examine the relationships from the perspectives of political, economic, and cultural sovereignty. The article further examines the relationships in …

Regulatory Choices And Legal Disputes In The Fight Against Covid-19 Infections In The Workplace, Susan Bisom-Rapp, Marco Peruzzi

Faculty Scholarship

This is a comparative study of two countries’ legal and policy actions to stem the spread of COVID-19 in the workplace, focusing on Italy and the United States (US). Both nations sustained great loss of life and high infection rates during the first years of the pandemic. This chapter examines how Italy and the US approached COVID-19 vaccine mandates for workers. Of particular interest are the regulatory choices made, including the choice not to regulate, and the consequences of those choices on the employment relationship. Additionally revealing are the legal grounds upon which regulatory actions were challenged, and how courts …

English Company Law: Legal Architecture For A Global Law Market, Andrew P. Morriss, Charlotte Ku

Faculty Scholarship

English-architecture company law describes the distinct and diverse group of company or corporate law used in more than 60 jurisdictions worldwide. English-architecture company law provides a robust platform for innovation and development due to its permissive structure, opportunity for choice of law in an entity’s internal governance, and scalability permitting variation for small and large entities. It is the dominant form among International Financial Centers (IFCs), many of which have legal systems with a British connection. This body of law responds to competition and maintains dynamism by engaging its practice community through “learning by doing” and “frictioneering.” An architecture approach …

A Crazy Quilt: Infanticide In The United States, Susan Ayres

Faculty Scholarship

This chapter builds on previous research to present a sampling of cases in the US, primarily in the twenty-first century, in order to show the harshness and disparity in criminal charges, defences and sentences. The broad term ‘infanticide’ is used for child-murder cases, and the more specific term ‘neonaticide’ is used for the killing of a child in the first 24 hours after birth. This chapter also describes the more recent use of genetic genealogy to solve cold cases of neonaticide. It concludes by considering how the absence of an infanticide offence and expanded defences results in an incoherent, unjust …