Comparative and Foreign Law Commons^™

From Constitutional Listening To Moral Listening, Roy Tseng

Chicago-Kent Law Review

In order to provide comments on Michael Dowdle's account of "Constitutional Listening," this paper aims to establish three counter-arguments. First of all, in contrast to Dowdle's particularly narrow understanding of liberalism, I argue that to evaluate the moral import of liberalism properly, we need to draw attention to the diversities of liberalism. According to what I will call "historicist liberalism," for example, in understanding other cultures we should try to show sensitivities toward alien political systems and moral values. Second of all, although I appreciate Dowdle's effort to avoid the misinterpretation of non-Western constitutional discourse, I do not agree with …

From Constitutional Listening To Constitutional Learning, Leigh Jenco

Chicago-Kent Law Review

In this article, I point out some limitations of Michael Dowdle's "listening" model, particularly its basis in the "principle of charity." I try to show that listening, as well as the principle of charity, are inadvertently passive and one-sided exercises that seem to have little similarity to the deeply self-transformative "learning" Dowdle urges us to undertake. I go on to suggest other ways of accomplishing the goals Dowdle sets for this project. Specifically, I develop the "self-reflexive approach" to think about how we might change ourselves—our conversations, our terms, our concerns—in addition to, and in the process of, learning from …

Constitutionalism: East Asian Antecedents, Tom Ginsburg

Chicago-Kent Law Review

To what degree can traditional Asian political and legal institutions be seen as embodying constitutionalist values? This question has risen to the fore in recent decades as part of a new attention to constitutionalism around the world, as well as the decline in orientalist perceptions of Asia as a region of oppressive legal traditions. This article juxtaposes East Asian analogues or antecedents of constitutionalism with a particular set of recent theoretical understandings of the concept of constitutionalism. After conducting a historical review of political and legal institutions in China, Japan and Korea, the article argues that we can indeed speak …

Constitutional Listening, Michael W. Dowdle

Chicago-Kent Law Review

This article explores a particular methodology of comparative constitutional analysis that it calls "constitutional listening." Derived from the interpretive "principle of charity," constitutional listening involves interpreting constitutional discourse of other polities in their best light. This includes not simply polities whose constitutional structures and values resemble our own, but perhaps even more importantly, polities and constitutional systems whose values and structures seem alien to us. The value of this methodology, it is argued, lies in its ability to expand our understanding of the diversity of experiences that have gone into the human project of constitutionalism, and in the diversity of …

The Unity Of Constitutional Values: A Comment On Ernest Caldwell's "Horizontal Rights And Chinese Constitutionalism: Judicialization Through Labor Disputes", Arif A. Jamal

Chicago-Kent Law Review

Ernest Caldwell wants to defend Chinese constitutionalism from criticism, mainly from Western constitutional scholars or scholars who hold up Western constitutional patterns as an ideal. Caldwell makes both a 'comparative' claim and a 'value' claim. The comparative claim is that Chinese constitutional law must be understood on its own terms and that on these terms it does protect rights, even if it does not do so in the same way as Western constitutional law. The value claim is that the procedures in China's legal system satisfy value concerns captured in the term 'constitutionalism' because they show how that system respects …

Nuclear Arms Control: Challenges And Opportunities In 2013, Steven Pifer

Brookings Scholar Lecture Series

U.S. nuclear arms control policy must address numerous factors, including our strategic relationships with Russia and China, the potential for future nuclear weapons reductions--including non-strategic nuclear weapons, and the offense-defense relationship, given concerns that missile defense developments could in the future affect the nuclear balance. Washington DC must also consider its obligations under the Non-Proliferation Treaty, how to dissuade new countries from joining the nuclear weapons ranks, and what to do about the Comprehensive Test Ban Treaty, which the United States has signed but not ratified. This presentation will explore challenges and opportunities facing Washington DC in the aftermath of …

A Comparative Law Analysis Of Private Securities Litigation In The Wake Of Morrison V. National Australia Bank, Grant Swanson

Chicago-Kent Law Review

This article examines the recent Supreme Court decision in Morrison v. National Australia Bank and its broad implications for private securities litigants going forward. Morrison overturned forty years of jurisprudence when it rejected the conduct and effects tests used in some form by every Circuit Court when determining the extraterritorial reach of Section 10(b) of the Securities Act. The Court instead adopted a transactional test requiring that the security be traded in the United States or otherwise domestic, substantially cutting back the reach of Section 10(b). As a result, many securities litigants will be forced to bring claims in the …

Legal Representation In The Chinese Criminal Court, Yudu Li, Hong Lu

Graduate Research Symposium (2010 - 2017)

Abstract: Legal representation plays an important role in criminal sentencing decisions. China has recently stipulated a mandatory legal representation clause for all offenders facing capital charges in its Criminal Procedural Law (1996). This study uses data generated from criminal court case documents involving three serious violent crimes: murder, intentional assault, and robbery. All these crimes carry a maximum of sentence of death. The study examines whether and under what conditions legal representation has an effect on criminal sentencing decisions in China. While the overall multi-regression model did not find that having a legal representation significantly reduces the criminal sentence, a …

The Philosophical Underpinning And General Workings Of Chinese Mediation Systems: What Lessons Can American Mediators Learn?, Kevin C. Clark

Pepperdine Dispute Resolution Law Journal

Of the various ADR processes available to the disputant seeking ADR, mediation has arguably become the "process choice of today" because -it is a very dynamic, user-friendly process" with a high success rate. Despite its recent successes, however, mediation is not a modern creation. It has been used for centuries in places all around the world. One of these places is China. This article introduces the reader to the philosophical underpinnings of the Chinese legal system as it relates to mediation and the general workings of the Chinese mediation model. It is the author's thesis that as western nations enthusiastically …

Dual Lenses: Using Theology And International Human Rights To Assess China's 2005 Regulations On Religion, Joel A. Nichols

Pepperdine Law Review

In order for China to move forward in the international community, it needs to continue to improve its standing on human rights issues. Of particular concern to many observers is the relationship between the government and religion. While foreign religious organizations and missionaries are still heavily regulated by a 1994 law, a new law respecting religious citizens and organizations within China went into effect in 2005. This new law is salutary in some respects in that it provides a much fuller delineation of the relationship between government and religion within China, and it appears more solicitous toward religious rights than …

China In Africa: What The Policy Of Nonintervention Adds To The Western Development Dilemma, Madison Condon

Faculty Scholarship

Chinese investment activity in Africa has skyrocketed in recent years, outpacing every other nation except South Africa. China finances more infrastructure projects in Africa than the World Bank and provides billions of dollars in low-interest loans to the continent’s emerging economies. These loans and investments are typically made in exchange for securing access to natural resources. Based on its principles of nonintervention and respect for sovereignty, China gives this money with little or no strings attached. The West, which typically conditions its loans on initiatives like democracy promotion and corruption reduction, has labeled China a “rogue donor,” whose actions will …

Venture Capital Investments In China: The Use Of Offshore Financing Structures And Corporate Relocations, Jing Li

Michigan Business & Entrepreneurial Law Review

Based on an analysis of the relevant Chinese laws and regulations governing the corporate governance structure of venture capital (“VC”)-invested firms, as well as a discussion on the feasibility of employing different alternatives to make direct and indirect VC investments in Chinese portfolio firms, this article studies a hand-collected sample consisting of the twenty-nine VCbacked Chinese portfolio firms that have been financed and listed from 1990 to 2005 in order to empirically show how these investments were actually made in practice. The findings show that twenty-three out of the twentynine firms received their VC investments in various offshore holding entities, …

Enforcement Without Foundation? Insider Trading And China's Administrative Law Crisis, Nicholas C. Howson

Articles

China's securities regulator enforces insider trading prohibitions pursuant to non-legal and non-regulatory internal "guidance." Reported agency decisions indicate that enforcement against insider trading is often possible only pursuant to this guidance, as the behavior identified is far outside of the scope of insider trading liability provided for in statute or regulation. I argue that the agency guidance is itself unlawful and unenforceable, because: (i) the guidance is not the regulatory norm required by the statutory delegation of power; and (ii) the guidance is ultra vires because (a) it addresses something substantively different from what is authorized under the statutory delegation, …

The Moral Dimension Of Employment Dispute Resolution, Theodore J. St. Antoine

Articles

Dispute resolution may be viewed from the perspective of economics or negotiation or contract law or game theory or even military strategy. In this Article, I should like to consider employment dispute resolution in particular from the perspective of morality. I do not necessarily mean "morality" in any religious sense. By "morality" here I mean a concern about the inherent dignity and worth of every human being and the way each one should be treated by society. Some persons who best exemplify that attitude would style themselves secular humanists. Nonetheless, over the centuries religions across the globe have played a …

China’S ‘Attitude’ Toward Human Rights: Reading Hungdah Chiu In The Era Of The Iraq War, Dongsheng Zang

Articles

China observers in the United States generally share two observations on China today: that China has made impressive progress in economic development in the past three decades, and that China has maintained a poor human rights record since the 1989 Tiananmen Massacre. On the economic front, China overtook Japan and became the second largest economy in 2010. In a joint study with China's Development Research Center of the State Council, the World Bank recently predicted that even if the Chinese economy grows a third as slowly in the future, it will outstrip the United States in terms of overall GDP …

Chinese Border Disputes Revisited: Toward A Better Interdisciplinary Sythesis, Roda Mushkat

Richmond Journal of Global Law & Business

China has long been embroiled in a wide array of territorial disputes and has occasionally flexed its military muscle in the process. Its conduct in such situations has been of great theoretical and practical relevance and has attracted considerable attention from scholars across the socio-legal spectrum. Researchers in the field of international law have carefully surveyed official and semi-official Chinese pronouncements and practices, while their social science counterparts have rigorously dissected key behavioral patterns. This is an inherently complex subject that this two-pronged approach has not yet been able to comprehensively address, however, because scholars engaged in the enterprise have …

The Pragmatic Court: Reinterpreting The Supreme People’S Court Of China, Taisu Zhang

Faculty Scholarship

This Article examines the institutional motivations that underlie several major developments in the Supreme People's Court of China's recent policy-making. Since 2007, the SPC has sent off a collection of policy signals that escapes sweeping ideological labeling: it has publically embraced a populist view of legal reform by encouraging the use of mediation in dispute resolution and popular participation in judicial policy-making, while continuing to advocate legal professionalization as a long-term policy objective. It has also eagerly attempted to enhance its own institutional competence by promoting judicial efficiency, simplifying key areas of civil law, and expanding its control over lower …

Yangge Dance: The Rhythm Of Liability For Medical Malpractice In The People's Republic Of China, Zhu Wang, Ken Oliphant

Chicago-Kent Law Review

This paper summarises the development of liability for medical malpractice in the People's Republic of China, beginning with the establishment of a formal system of administrative liability in 1987, its refinement in 2002, and the broadly contemporaneous judicial recognition of a concurrent tortious liability under general civil law. All these developments may be said to have furthered the interests of patients. The incorporation of liability for medical malpractice into the Tort Liability Law of 2009, however, arguably marks a step backwards, subordinating the interests of patients in favor of the interests of the medical community, and further reforms in the …

Commercial High Technology Innovations Face Uncertain Future Amid Emerging "Brics" Compulsory Licensing And It Interoperability Frameworks, Lawrence A. Kogan

San Diego International Law Journal

The pathways that lead to the success of cutting-edge technologies are often fraught with risk, difficulty, and uncertainty. These issues are particularly prevalent under a regime involving lengthy time horizons for competent research, development, and commercialization, which may require regulatory approvals. These challenges are known to be endemic to capital-intensive technology development which requires significant follow-on funding, particularly in highly regulated industries such as life sciences (e.g., pharmaceuticals/biotechnology and electronic medical devices ) and clean technology (which may be subdivided into clean or renewable energy generation and clean or renewable energy efficiency technologies and services, the former having more direct …

It’S A Mad, Mad Internet: Globalization And The Challenges Presented By Internet Censorship, Jessica E. Bauml

Federal Communications Law Journal

The advent of the Internet has brought tremendous technological advancements and growth to the world. However, it has also become a source of conflict, particularly when different countries attempt to regulate this very ubiquitous and amorphous medium. The most notable controversy has arisen in China home to the world's most advanced system of Internet censorship, which levies harsh penalties on those who violate the country's strict censorship laws. China's "Great Firewall" has raised many eyebrows and is garnishing substantial criticism in response to the human rights abuses that result from the jailing and reported torture of Chinese dissidents. Yet the …

Economic And Social Rights: The Role Of Courts In China, Randall Peerenboom

San Diego International Law Journal

This Article considers what the role of the courts could and should be in implementing ESR in China. Part II surveys recent global developments giving greater bite to economic and social rights, as well as some of the main controversies, debates, and approaches to promoting, protecting, and fulfilling ESR, with particular attention to the role of the courts. Part III provides a general introduction to the social, legal, political, and economic context in China, and contrasts the situation in China with South Africa?one of the global leaders in judicial implementation of ESR. The overall environment in China is, if not …

Post-Wto China Tax Law System Reform And The Rule Of Law: Progress And Prospects, Tianlong Hu

SJD Dissertations

A close examination of China's accession commitments reveals that effective economic reform and trade liberalization call for substantiations from a matching legal infrastructure reform. For example, taxpayers' rights protection should be viewed in terms of broader political and civil rights reform. Indeed, a number of the values featured in the WTO principles and the rule of law framework encourage China's further integration into both the global trade network and the international human rights regime. This is particularly evident in the Chinese tax law context. WTO principles and the rule of law requirements must be introduced and evaluated together in tax …

Taking Stock: China's First Decade Of Free Trade, Jun Zhao, Timothy Webster

Faculty Publications

China has established itself as a global economic presence in the past ten years. This article explains one important but overlooked aspect of this rise, China’s newfound interest in free trade agreements (FTAs). This paper situates the FTA boom within a framework of international political economy and China’s recent regional rise. This paper probes the question of how China selects its FTA partners, referencing US trade practice and policy as a framework by which to analyze China’s own preferences. This paper then explores the main features of China’s FTAs, finding that it has adopted a flexible FTA strategy that attends …

The Irony Of International Business Law: U.S. Progressivism And China's New Laissez Faire, Andrew B. Spalding

Law Faculty Publications

As the financial crisis draws U.S. business overseas and developing countries rise in influence, the regulation of international business has never figured so prominendy in federal law. But the dominant paradigm through which academics and policymakers continue to view that law-the so-called Washington Consensus-proves deeply misleading. A more accurate account of the components, origins, and aims of U.S. international business law reveals two striking ironies.

First, in discrete but critical ways, the United States no longer represents the comparatively laissez-faire approach to federal business regulation. Rather, owing to its origins in the Progressive Era, U.S. federal law directs corporations toward …

Property Rights In Land, Agricultural Capitalism, And The Relative Decline Of Pre-Industrial China, Taisu Zhang

Faculty Scholarship

No abstract provided.

The Settlement Of Investor State Disputes And China New Developments On Icsid Jurisdiction, Jane Y. Willems

South Carolina Journal of International Law and Business

No abstract provided.

China's Turn Against Law, Carl F. Minzner

Faculty Scholarship

Chinese authorities are reconsidering legal reforms they enacted in the 1980s and 1990s. These reforms had emphasized law, litigation, and courts as institutions for resolving civil grievances between citizens and administrative grievances against the state. But social stability concerns have led top leaders to question these earlier reforms. Central Party leaders now fault legal reforms for insufficiently responding to (or even generating) surging numbers of petitions and protests.

Chinese authorities have now drastically altered course. Substantively, they are de-emphasizing the role of formal law and court adjudication. They are attempting to revive pre-1978 Maoist-style court mediation practices. Procedurally, Chinese authorities …

The Puzzle Of "Freedom Of Contract" In China's Contract Law, Jun Zhao

ILSA Journal of International & Comparative Law

Recent events have intensified the debates over "freedom of contract" and governmental intervention in China: the Shanxi coal mining reform and the forced mergers, the corkage fee dispute in Guizhou, the offers posted on the Internet selling human milk, contractual surrogacy arrangement, contractually designed money laundering scam in western China under the name of western China development, just to name a few

Review Of Understanding Labor And Employment Law In China, By Ronald C.Brown, Nicholas C. Howson

Reviews

Any attempt to analyze China’s comprehensive labor reform over the past three decades faces at least two dilemmas. First, the analyst must confront the task of describing how the Chinese state has dismantled the “work unit” (or danwei)- based “iron rice bowl” employment and entitlements system, replacing that comforting but low-production employment and social security scheme with formally-proclaimed legal rights and institutions apparently designed to protect employees in a functioning labor market. Second, the analyst must track how the state’s commitment (at all levels of government) to implementation of proclaimed legal and institutional protections has waxed and waned, based upon …

China's Judicial System And Judicial Reform, Nicholas C. Howson

Other Publications

The following is an extract from the statement delivered by Michigan Law School Professor Nicholas Howson at the inaugural “China-U.S. Rule of Law Dialogue” held at Beijing’s Tsinghua University July 29-30, 2010, and convened by Tsinghua Law Dean Wang Zhenmin and Harvard Law School Professor and East Asian Legal Studies Director William Alford, and with the support of the China-United States Exchange Foundation chaired by C.H. Tung, first chief executive and president of the Executive Council of the Hong Kong Special Administrative Region. The dialogue was organized as a private meeting between senior PRC law professors and U.S.-based Chinese law …