{"title":"The Law and Bioethics of End-of-Life Decisions","authors":"J. Nafziger","doi":"10.1093/ajcl/avac013","DOIUrl":"https://doi.org/10.1093/ajcl/avac013","url":null,"abstract":"","PeriodicalId":51579,"journal":{"name":"American Journal of Comparative Law","volume":" ","pages":""},"PeriodicalIF":1.5,"publicationDate":"2022-06-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45662862","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Freedom of Speech and Regulation of Fake News","authors":"Leslie Gielow Jacobs","doi":"10.1093/ajcl/avac010","DOIUrl":"https://doi.org/10.1093/ajcl/avac010","url":null,"abstract":"","PeriodicalId":51579,"journal":{"name":"American Journal of Comparative Law","volume":" ","pages":""},"PeriodicalIF":1.5,"publicationDate":"2022-06-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42576154","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Artificial Intelligence Accountability of Public Administration","authors":"Francesca. Bignami","doi":"10.1093/ajcl/avac012","DOIUrl":"https://doi.org/10.1093/ajcl/avac012","url":null,"abstract":"","PeriodicalId":51579,"journal":{"name":"American Journal of Comparative Law","volume":" ","pages":""},"PeriodicalIF":1.5,"publicationDate":"2022-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46810684","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Extraterritorial Application of Statutes and Regulations","authors":"Franklin A. Gevurtz","doi":"10.1093/ajcl/avac011","DOIUrl":"https://doi.org/10.1093/ajcl/avac011","url":null,"abstract":"","PeriodicalId":51579,"journal":{"name":"American Journal of Comparative Law","volume":" ","pages":""},"PeriodicalIF":1.5,"publicationDate":"2022-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46475851","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Path Dependence, Systemic Will, and the Transformation of Anglo-American Corporate Fiduciary Law","authors":"R. Yalden","doi":"10.1093/ajcl/avac040","DOIUrl":"https://doi.org/10.1093/ajcl/avac040","url":null,"abstract":"","PeriodicalId":51579,"journal":{"name":"American Journal of Comparative Law","volume":" ","pages":""},"PeriodicalIF":1.5,"publicationDate":"2022-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46300856","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
It is now well-established that different markets may develop different growth-supporting institutions that can give rise to public firms and set capital markets in motion. Yet, the paradigm view still holds local alternatives as merely stepping stones, a transitional passage toward achieving a deeper and more advanced market, at which point conventional legal and market institutions—modeled on Anglo-American corporate capitalism—are still held necessary. Four decades of economic development in China challenge these conventions. With modern firms with global prominence and a capital market that is the second largest in the world, corporate governance in China seems to have passed the point of an “adjust or perish” prognostic. The system that governs Chinese firms and the ways in which capital markets function sustain strong governance attributes that go against many fundamentals in economics and legal thought. Political involvement and state ownership, both assumed to stand in the way of capital market growth, remain prevalent while the market continues to advance. Most strikingly, harmonization with conventional corporate governance been pushed aside as the Chinese Communist Party has decided to exercise an ever-more expansive and direct role in market activity. Public firms in present-day China are increasingly being governed by a “politicized corporate governance.” Political institutions with corporate governance capacities have been deployed both inside and outside firms. These institutions now buttress or even replace weaker traditional corporate governance mechanisms in the Chinese market. The implications are striking. First, despite justified reasons for alarm, a politicized corporate governance system in China can perform the main functions of corporate governance elsewhere, thereby offering some benefits for public firms and their stockholders. Second, these developments show how path-dependent corporate governance attributes, here political institutions, reject convergence predictions yet have enough plasticity to evolve and to support modern firms and markets beyond assumed thresholds and developmental milestones. In so doing, China’s politicized corporate governance casts doubts on law and development conventions as well as on both sides of a long-standing governance convergence debate. Finally, the politicization of corporate governance in China offers a new direction in comparative corporate governance scholarship, providing evidence of an instituted reversal from outwardly convergent corporate governance toward a new form of a planned economy.
{"title":"The Politicization of Corporate Governance: A Viable Alternative?","authors":"Tamar Groswald Ozery","doi":"10.1093/ajcl/avac007","DOIUrl":"https://doi.org/10.1093/ajcl/avac007","url":null,"abstract":"It is now well-established that different markets may develop different growth-supporting institutions that can give rise to public firms and set capital markets in motion. Yet, the paradigm view still holds local alternatives as merely stepping stones, a transitional passage toward achieving a deeper and more advanced market, at which point conventional legal and market institutions—modeled on Anglo-American corporate capitalism—are still held necessary.\u0000 Four decades of economic development in China challenge these conventions. With modern firms with global prominence and a capital market that is the second largest in the world, corporate governance in China seems to have passed the point of an “adjust or perish” prognostic. The system that governs Chinese firms and the ways in which capital markets function sustain strong governance attributes that go against many fundamentals in economics and legal thought. Political involvement and state ownership, both assumed to stand in the way of capital market growth, remain prevalent while the market continues to advance.\u0000 Most strikingly, harmonization with conventional corporate governance been pushed aside as the Chinese Communist Party has decided to exercise an ever-more expansive and direct role in market activity. Public firms in present-day China are increasingly being governed by a “politicized corporate governance.” Political institutions with corporate governance capacities have been deployed both inside and outside firms. These institutions now buttress or even replace weaker traditional corporate governance mechanisms in the Chinese market.\u0000 The implications are striking. First, despite justified reasons for alarm, a politicized corporate governance system in China can perform the main functions of corporate governance elsewhere, thereby offering some benefits for public firms and their stockholders. Second, these developments show how path-dependent corporate governance attributes, here political institutions, reject convergence predictions yet have enough plasticity to evolve and to support modern firms and markets beyond assumed thresholds and developmental milestones. In so doing, China’s politicized corporate governance casts doubts on law and development conventions as well as on both sides of a long-standing governance convergence debate. Finally, the politicization of corporate governance in China offers a new direction in comparative corporate governance scholarship, providing evidence of an instituted reversal from outwardly convergent corporate governance toward a new form of a planned economy.","PeriodicalId":51579,"journal":{"name":"American Journal of Comparative Law","volume":" ","pages":""},"PeriodicalIF":1.5,"publicationDate":"2022-05-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44018764","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Modern constitutional theory deals almost exclusively with the mechanisms for controlling the exercise of public power. In particular, the focus of constitutional scholars lies in explaining and justifying how courts can effectively keep the exercise of public power within bounds. But there is little point in worrying about the excesses of government power when the government lacks the capacity to get things done in the first place. In this Article, we examine relations between the courts, constitutionalism, and state capacity other than through limiting state power. Through a series of case studies, we suggest how courts confront the problem of state building, and how the question of state capacity informs constitutional doctrine. Our studies consist of litigation over life-saving medication in Brazil, “engagement” remedies in South Africa, the problem of pretrial detention in India, and the validity of India’s recent biometric identification project. As we show, state capacity is a crucial variable in the development of constitutional doctrine—and while engaging with the issue of state capacity, courts often play a role in facilitating its expansion. The case studies identify a number of mechanisms that courts use to encourage capacity development: providing incentives to enhance capacity, guiding and directing the state to perform specific actions, compensating for weak capacity by absorbing the problem, and endorsing measures that purport to increase capacity. We then offer an expressly idealized model by which courts can negotiate capacity-related concerns. Courts can, in certain instances, respond to the problem of state capacity through weak-form, dialogic, experimentalist forms of review. The precise role that courts can and should play in this regard remains to be fully studied, but focusing on the question of state capacity allows us to better explain contemporary constitutional doctrine in several jurisdictions, and highlights the challenges involved in at once creating and limiting state power.
{"title":"Courts, Constitutionalism, and State Capacity: A Preliminary Inquiry","authors":"Madhav Khosla, M. Tushnet","doi":"10.1093/ajcl/avac009","DOIUrl":"https://doi.org/10.1093/ajcl/avac009","url":null,"abstract":"\u0000 Modern constitutional theory deals almost exclusively with the mechanisms for controlling the exercise of public power. In particular, the focus of constitutional scholars lies in explaining and justifying how courts can effectively keep the exercise of public power within bounds. But there is little point in worrying about the excesses of government power when the government lacks the capacity to get things done in the first place. In this Article, we examine relations between the courts, constitutionalism, and state capacity other than through limiting state power. Through a series of case studies, we suggest how courts confront the problem of state building, and how the question of state capacity informs constitutional doctrine. Our studies consist of litigation over life-saving medication in Brazil, “engagement” remedies in South Africa, the problem of pretrial detention in India, and the validity of India’s recent biometric identification project. As we show, state capacity is a crucial variable in the development of constitutional doctrine—and while engaging with the issue of state capacity, courts often play a role in facilitating its expansion. The case studies identify a number of mechanisms that courts use to encourage capacity development: providing incentives to enhance capacity, guiding and directing the state to perform specific actions, compensating for weak capacity by absorbing the problem, and endorsing measures that purport to increase capacity. We then offer an expressly idealized model by which courts can negotiate capacity-related concerns. Courts can, in certain instances, respond to the problem of state capacity through weak-form, dialogic, experimentalist forms of review. The precise role that courts can and should play in this regard remains to be fully studied, but focusing on the question of state capacity allows us to better explain contemporary constitutional doctrine in several jurisdictions, and highlights the challenges involved in at once creating and limiting state power.","PeriodicalId":51579,"journal":{"name":"American Journal of Comparative Law","volume":" ","pages":""},"PeriodicalIF":1.5,"publicationDate":"2022-05-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45774204","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The Brazilian case of Lava Jato started with a scandal involving the massive malfeasance of corporate and political elites in relation to the state-run oil company Petrobras. The scope of the corruption was unprecedented. Politicians and Petrobras employees received hundreds of millions (if not billions) of dollars in kickbacks between 2004 and 2012. This Article focuses on the innovations promoted by the Lava Jato case. This new jurisprudence has not only played a key role in breaking a long-lasting tradition of impunity in Brazil, but it has also generated much controversy. On the one hand, many Brazilian citizens welcomed the changes, as they allowed judges to overcome the obstacles faced by courts in previous corruption cases. On the other hand, opponents argue that the case is not solidly grounded in rule of law principles. Instead of taking sides in this debate, this Article tries to reframe it by arguing that there may be benefits associated with these novel interpretations, but there may also be costs and risks.
{"title":"Using Criminal Law to Fight Corruption: The Potential, Risks, and Limitations of Operation Car Wash (Lava Jato)","authors":"Mariana Mota Prado, Marta R de Assis Machado","doi":"10.1093/ajcl/avac008","DOIUrl":"https://doi.org/10.1093/ajcl/avac008","url":null,"abstract":"\u0000 The Brazilian case of Lava Jato started with a scandal involving the massive malfeasance of corporate and political elites in relation to the state-run oil company Petrobras. The scope of the corruption was unprecedented. Politicians and Petrobras employees received hundreds of millions (if not billions) of dollars in kickbacks between 2004 and 2012. This Article focuses on the innovations promoted by the Lava Jato case. This new jurisprudence has not only played a key role in breaking a long-lasting tradition of impunity in Brazil, but it has also generated much controversy. On the one hand, many Brazilian citizens welcomed the changes, as they allowed judges to overcome the obstacles faced by courts in previous corruption cases. On the other hand, opponents argue that the case is not solidly grounded in rule of law principles. Instead of taking sides in this debate, this Article tries to reframe it by arguing that there may be benefits associated with these novel interpretations, but there may also be costs and risks.","PeriodicalId":51579,"journal":{"name":"American Journal of Comparative Law","volume":" ","pages":""},"PeriodicalIF":1.5,"publicationDate":"2022-05-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42339377","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The fields of comparative law and law and economics have not had a happy or productive relationship. There are recent notable exceptions, such as comparative corporate governance, comparative constitutional law, and comparative competition law, but we are surprised by that limited cross-fertilization, given that so many other areas of law have found concepts from law and economics helpful and, in some instances, transformative. To try to understand this phenomenon, we first examine a twenty-five-year attempt by an international group of legal and economic scholars to foster interaction between the two fields. We then examine the recent history of the field of comparative economics and its successor field, transition economics, with mainstream economics to see if there are lessons from that literature that help to explain the relative paucity of a comparative law and economics literature. We next look at one notable recent attempt to use law and economics to examine a comparative law topic—the legal origins hypothesis. We also speculate on the extent to which the status of comparative law within American law schools and the overselling of the revolutionary aspects of law and economics might help to explain the frigid relations between comparative law and law and economics. Finally, we seek to propose a way forward in which each field can learn from the other, while also recognizing that we may be expecting too much too soon. The “silent artillery of time” may be the great spur to this particular scholarly cross-fertilization.
{"title":"Comparative Law and Economics: Aspirations and Hard Realities","authors":"Nuno Garoupa, T. Ulen","doi":"10.1093/ajcl/avab023","DOIUrl":"https://doi.org/10.1093/ajcl/avab023","url":null,"abstract":"\u0000 The fields of comparative law and law and economics have not had a happy or productive relationship. There are recent notable exceptions, such as comparative corporate governance, comparative constitutional law, and comparative competition law, but we are surprised by that limited cross-fertilization, given that so many other areas of law have found concepts from law and economics helpful and, in some instances, transformative. To try to understand this phenomenon, we first examine a twenty-five-year attempt by an international group of legal and economic scholars to foster interaction between the two fields. We then examine the recent history of the field of comparative economics and its successor field, transition economics, with mainstream economics to see if there are lessons from that literature that help to explain the relative paucity of a comparative law and economics literature. We next look at one notable recent attempt to use law and economics to examine a comparative law topic—the legal origins hypothesis. We also speculate on the extent to which the status of comparative law within American law schools and the overselling of the revolutionary aspects of law and economics might help to explain the frigid relations between comparative law and law and economics. Finally, we seek to propose a way forward in which each field can learn from the other, while also recognizing that we may be expecting too much too soon. The “silent artillery of time” may be the great spur to this particular scholarly cross-fertilization.","PeriodicalId":51579,"journal":{"name":"American Journal of Comparative Law","volume":" ","pages":""},"PeriodicalIF":1.5,"publicationDate":"2022-05-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41521646","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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