Social and Behavioral Sciences Commons^™

Liquidated Damages In The New Civil Code Of China: Underpinnings, Confusion, And Reforms, Wei Wen

University of Pennsylvania Asian Law Review

The new Civil Code of the People’s Republic of China (“the Code”), enacted by the National People’s Congress (“NPC”), is now the most authoritative statute in private law matters. The Code has three rules for liquidated damages. The first rule gives contracting parties the freedom to agree on this remedy and enjoy its convenience and clarity. It reduces the burden of proof, saves judicial resources, and respects freedom of contract. The second rule lets contracting parties request the courts to increase or reduce pre-set amounts that are disproportionate to the losses caused by breaches. This unique and flexible mechanism balances …

River Water Regulation In India: The Challenges Of The Entangled State, Mia M. Rahim, Guy C. Charlton, Abhay Kanwar

University of Pennsylvania Asian Law Review

The inland river water regulations in India have become complicated by debates over river ownership, environmental sustainability, native aspirations, and industrial growth. This Article argues that such complexities surrounding the river water regulations inform a “state of entanglement” which cannot be addressed without invoking the unique way the Indian state is embedded within Indian society. This Article suggests that public interest litigation and increased participation for stakeholders and the common people may offer an effective mechanism to overcome the obstacles of the entanglement of state and society in India.

Cross-Border Insolvency Cooperation Between Mainland China And Hong Kong Sar: The 2021 Arrangement And Its Improvement, Jingxia Shi

University of Pennsylvania Asian Law Review

As the world’s second-largest economy, China has become a critical venue for high-profile cross-border insolvency proceedings in recent years. The evolution of China’s insolvency law and the pertinent judicial practice, especially its cross-border aspects, remains in infancy. This development underscores the significance of the 2021 Arrangement between Mainland China and the Hong Kong Special Administrative Region (“Hong Kong SAR”) on crossborder insolvency cooperation (the “2021 Arrangement”). The Arrangement not only caters to the unique demands under the “One Country, Two Systems” policy but also incorporates legal advancements and institutional features from the 1997 United Nations Commission on International Trade Law …

Gambling In Territorial Hawaii, Robert M. Jarvis

University of Pennsylvania Asian Law Review

This article collects and discusses gambling cases decided during Hawaii’s territorial period (1898–1959). Previous commentators have overlooked these decisions, even though they provide a rich source of information about life during this distinct period of Hawaii’s history.

Freedom Of Contract And M&A Termination Fees: Peculiar Case Of South Korea Vs. United States, Joseph Cho

University of Pennsylvania Asian Law Review

This manuscript offers a comprehensive survey of the liquidated damages regimes in the Republic of Korea and the United States, specifically within the framework of corporate mergers and acquisitions. In the Republic of Korea, liquidated damages play a crucial role in pre-estimating potential damages arising from contract breaches, offering numerous benefits such as reducing the creditor’s evidentiary burden and fostering contractual compliance. Notably, the Korean Civil Code provides checks against excessive predetermined damages. In contrast, the U.S. perspective is enriched by a series of case laws, emphasizing the compensatory intent of liquidated damages. A comparative analysis reveals intriguing intersections between …

Regulating The Unregulated: The Beginning Of The End Of A Laissez-Faire Era Of The Crypto "Wild West", Bo Hyun Kim

University of Pennsylvania Asian Law Review

The crypto market has been left largely unregulated on a global scale for over a decade. 1 Recently, multiple jurisdictions are aligning efforts to tame the increasingly volatile crypto “Wild West” as evidenced by the influx of forthcoming legislations, consultations between operators and regulators, and regulatory crackdowns. 2 A cross-comparative analysis of the regulatory framework in the United States, the European Union, and Korea indicates that the proposed scopes of legislations cover an expansive breadth of assets. However, there are further needs for supplementary regulations following the enactment of the newly proposed regulations to close certain critical gaps that remain …

An Absent "No" Is Not A "Yes": A Legal Analysis Of Consent In Japan's Amended Penal Code And International Rape Legislation Standards, Larissa Truchan

University of Pennsylvania Asian Law Review

On June 16, 2023, the Japanese government passed a law to partially amend the Penal Code that explicitly outlines eight scenarios prosecutable as the crime of rape that make “it difficult for the victim to form, express, or fulfill the intention not to consent.” This article will reveal that the June 2023 amendment does not criminalize all “non-consensual sexual intercourse,” as its text suggests, but is premised on defining coercive circumstances that may interfere with a victim’s presumed duty to demonstrate their “intention not to consent.” As a result, Japanese courts will continue to possess the subjective power to determine …

Out Of State, Out Of Mind: Legal Impact Of Out-Of-State Placement On Foster Youth, Lucy J. Johnston-Walsh

University of Pennsylvania Journal of Law and Public Affairs

The child welfare system, which has also been referred to as the family regulation system, was ostensibly created to protect children who are victims of abuse and neglect. When children are at risk of harm, courts can authorize governmental agencies to remove children from their families and place children in the custody of kin or a variety of other placement settings, including congregate care. Data shows alarming racial disproportionality in that 53% of Black families will be investigated for child abuse, and furthermore, Black children are more likely to be removed from their families than white children. Recent changes to …

Preface, Tess Markovich, Margaret Cohen

University of Pennsylvania Journal of Law and Public Affairs

No abstract provided.

Temporary Protection In The United States And The European Union: Same Words, Vastly Different Meanings, Maryellen Fullerton

University of Pennsylvania Journal of Law and Public Affairs

This Article examines the history and political context of temporary protection in the United States and the European Union, compares and contrasts key components of the different legislative frameworks, and assesses the effectiveness of the temporary protection programs. These programs typically provide an avenue of humanitarian relief to noncitizens by authorizing lawful residence for a time-limited period. When the Russian military invasion of Ukraine in 2022 forced a large portion of the population to flee in search of safety, countries neighboring Ukraine welcomed millions displaced by the attacks, as did countries around the globe. For the first time, the European …

Challenging Gendered Islamophobia: Empowering Muslim Women Through Cedaw General Recommendation 40 On Leadership, Sarah Kawamleh

University of Pennsylvania Journal of Law and Public Affairs

This Comment examines the intersection of gendered Islamophobia and the empowerment of Muslim women through the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) General Recommendation 40 on leadership. It begins by addressing the limited understanding regarding Muslim women's experiences within international human rights law frameworks. Through in-depth case studies and analysis, the Comment explores how CEDAW can be utilized to empower Muslim women and combat gendered Islamophobia. It highlights the challenges faced by Muslim women in accessing leadership positions, a struggle that is especially evident in certain countries like France, while also critiquing the limitations …

Obstetric Violence And Forced Sterilization: Conceptualizing Gender-Based Institutional Violence, Rangita De Silva De Alwis

University of Pennsylvania Journal of Law and Public Affairs

The twenty-first century continues to witness gynecological abuse in the form of forced sterilizations of minority women. In many parts of the world, states weaponize family planning programs as a form of reproductive policy against poor women and women of color, treating women’s fertility as a drain on the state's resources. The first part of this Article discusses how legal systems around the world do little to provide redress for women who are coerced to undergo certain medical procedures during, before, and after childbirth, and give little consideration to their right to bodily autonomy. The second part of the Article …

The Conservative Case For Esg, Richard Painter

University of Pennsylvania Journal of Law and Public Affairs

There is a growing consensus across the political spectrum that corporations should not just make money for shareholders but also advance the public good. Conservatives and liberals often disagree about what the public good is, or what the priorities of corporate governance should be, but both sides are discontent with corporations focusing only on profits.

This Article discusses reasons why political conservatives should support efforts to include environmental, social and governance (ESG) factors in corporate governance. Conservatives do not embrace contemporary ESG rhetoric which they associate with liberal social and economic viewpoints, but conservatives nonetheless oppose corporations maximizing profits at …

Leveraging The Medicaid Expansion, David Hyman, Charles Silver

University of Pennsylvania Journal of Law and Public Affairs

In response to provisions in the Patient Protection and Affordable Care Act (PPACA), 40 states and the District of Columbia expanded their Medicaid programs, resulting in roughly 20 million Americans gaining state-run (but mostly federally funded) health insurance. Despite these coverage gains, 27 million Americans (8.3%) still do not have health insurance. To address this problem, the obvious targets of opportunity are the 10 states (Alabama, Florida, Georgia, Kansas, Mississippi, South Carolina, Tennessee, Texas, Wisconsin, and Wyoming) that have refused to expand their Medicaid programs. The hold-out states have specific fiscal challenges, constraints, and governance cultures that any reform proposal …

To Block Or Not To Block: The State Action Problem With Government Social Media, Jared Silberglied

University of Pennsylvania Journal of Law and Public Affairs

Social media has provided an unprecedented level of constituent access to their government representatives. While this comes with many benefits to both constituents and representatives, there are many drawbacks to it as well. There are times when comments from a particularly angry or annoying constituent may tempt a government official to hit the block button. But such action has obvious First Amendment implications. At the same time, officials are still private individuals who have their own private right and ability to speak on government matters without implicating state action. The Supreme Court has accepted certiorari in two cases to resolve …

Can Litigation Analytics Tell Us What Became Of The 2015 Proportionality Amendments To The Federal Rules Of Civil Procedure, Patricia W. Moore

University of Pennsylvania Journal of Law and Public Affairs

No abstract provided.

Red Codes, Blue Codes? Factors Influencing The Formulation Of Criminal Law Rules, Paul H. Robinson, Hugh Rennie, Clever Earth

University of Pennsylvania Journal of Law and Public Affairs

The U.S. appears to be increasingly politically divided between “red states” and “blue states,” to the point that many public voices on both sides are urging that the country seriously consider separating along a red-blue divide. A range of stark public disagreements over criminal law issues have fed the secession movement. Consider obvious examples such as abortion, decriminalization of marijuana, “stand your ground” statutes, the death penalty, and concealed weapon carry laws. Are red and blue values so fundamentally different that we ought to recognize a reality in which there exists red codes and blue codes?

To answer that question, …

Volume 9 Masthead

University of Pennsylvania Journal of Law and Public Affairs

No abstract provided.

Major Climate Policy Enactments Increase The Urgency Of Managing Climate-Related Risk At Banks, David Arkush, Sarah Bloom Raskin, Yevgeny Shrago

University of Pennsylvania Journal of Law and Public Affairs

In late 2022, Congress and the state of California enacted a set of sweeping policies expected to hasten the shift to clean energy dramatically in the coming years. These policies will reduce long-term physical risk to banks and the financial system from climate change. At the same time, they may dramatically increase nearer-term risks to banks that are underprepared for the economic transition to clean energy. This Essay sketches the likely implications of these new policies for banks’ transition risk and recommends responses for bank regulators.

Seattle's Fair Chance Housing Law: The Ninth Circuit Strikes Down Limits On Tenant Criminal Record Screening, Thomas Stanley-Becker

University of Pennsylvania Journal of Law and Public Affairs

No abstract provided.

Suspension Of The Rules: Why Federal Courts Should Not Fear Adjudicating Cases Involving The Legislative Branch, Claire Smith

University of Pennsylvania Journal of Law and Public Affairs

Political questions in litigation abound, particularly as the Democratic and Republican parties grow further apart ideologically: Who will be the Speaker of the House, whether to impeach presidents or judges, and whether to expel Members of Congress accused of corruption. The Constitution sets up a separation of powers, where the legislative, executive, and judicial branches can check each other. However, there is a similar doctrine where courts refuse to hear a case because the case presents a topic better left to the political branches: the political question doctrine.

The Supreme Court has not always been reticent to hear cases involving …

Vietnam's "Entire People Ownership" Of Land: Theory And Practice, Phan Trung Hien, Hugh D. Spitzer

University of Pennsylvania Asian Law Review

The Constitution of Vietnam declares that “[t]he Socialist Republic of Vietnam State is a socialist rule of law State of the People, by the People, and for the People.” It also states that land is “under ownership by the entire people represented and uniformly managed by the State.” This means the entire people of Vietnam are collective landowners and the Vietnam State is their “representative.” Given that, how might the public execute its real ownership—rather than treating “people’s ownership” as just a slogan? This article analyzes the gaps in theory and practice in Vietnam, a country with a robust market …

Deconstructing The Decolonizing Plot Of The Tydings-Mcduffie Act: A Review Of America's International Relations In Asia In The Early Twentieth Century, Alvin Hoi-Chun Hung

University of Pennsylvania Asian Law Review

The Tydings-McDuffie Act was enacted in 1934 to establish a designated path for the Philippines, then an American colony, to become independent after a ten-year transition period. This article looks into the macro-environment of the Asia-Pacific region in the 1930s regarding the impact of the Soviet Union, the Republic of China, the Shōwa empire of Japan, and its puppet state “Manchukuo” in China, embedded within the innumerable socio-political and economic conflicts between the U.S. and the Philippines. The Tydings-McDuffie Act is critically examined to assess its underlying decolonizing plot of the political and economic relationship between the U.S. and the …

Prevention Of Judicial Corruption In Bangladesh: Cutting The Gordian Knot By Ensuring Accountability, S M Solaiman

University of Pennsylvania Asian Law Review

Judicial corruption has eaten away at good governance in Bangladesh for decades, hindering its ambition to attain the United Nations Sustainable Development Goals (“SDGs”) and taking advantage of the absence of any effective accountability mechanism. The magnitude of corruption is so intense that the successive Chief Justices, Attorneys-General, local, and international anti-corruption organizations, and even the Supreme Court of Bangladesh (“SCB”) itself in a judgment have forthrightly admitted the prevalence of judicial corruption. The malpractice does profoundly undermine the rule of law and infringe on the people’s right to fair trial. Corruption is on the rise in the country as …

Intellectual Property Legislation Holism In China, Taorui Guan

University of Pennsylvania Asian Law Review

No abstract provided.

Vol. 19 Masthead

University of Pennsylvania Asian Law Review

No abstract provided.

Babies And Individual Income Tax: How To Boost China's Fertility, Alex Ang Gao

University of Pennsylvania Asian Law Review

Winner of THE 2023 PAMELA DALEY PRIZE, to the graduating student writing the best paper in the field of tax law.

Convertible Equity In The Japanese Startup Ecosystem, A. Reid Monroe-Sheridan

University of Pennsylvania Asian Law Review

No abstract provided.

Ruckelshaus's Blind Spot: The Economics Of Participation, Wendy Wagner

University of Pennsylvania Journal of Law and Public Affairs

No abstract provided.

The Convention On The Rights Of Persons With Disabilities: A Normative Tool For Dismantling Disability Stereotypes, Charlotte V. Mcclain-Nhlapo

University of Pennsylvania Journal of Law and Public Affairs

No abstract provided.