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Traditional Knowledge in Taiwan: A Call for Greater Participation of Indigenous Peoples in the Global Intellectual Property Marketplace
Get PDFThis Article explores the plight of the Aborigines of Taiwan and the legal protections that exist for their Traditional Knowledge. While Taiwan continues to face international isolation with a diminished number of states recognizing the Republic of China as the seat of China, the island\u27s government has taken limited steps to recognize language, cultural, and economic rights of its Indigenous peoples. International law has not been helpful in protecting Traditional Knowledge, but Taiwan could use its vast economic resources and positive track record in protecting some of these rights to further its goals of international recognition. This Article details the current regulation of Traditional Knowledge, both internationally and within Taiwan, and calls for a new international treaty in which the Republic of China could take part under the auspices of the World Trade Organization to which Taiwan belongs
Reciprocity in China-US Judgments Recognition
Get PDFThe conventional wisdom is that China and the United States do not recognize each other\u27s court judgments. But this is changing. A US court first recognized a Chinese judgment in 2009, and a Chinese court first reciprocated in 2017. This Article provides an overview of the enforcement of US judgments in China and Chinese judgments in the United States, noting the similarities and differences in the two countries\u27 systems. In China, rules for the enforcement of foreign judgments are established at the national level and require reciprocity. In the United States, rules for the enforcement of foreign judgments are established at the state level and generally do not require reciprocity. This Article also looks at possibilities for future cooperation in the enforcement of foreign judgments, through a bilateral treaty, a multilateral convention, and the application of domestic law. It concludes that progress in the recognition and enforcement of China-US judgments is most likely to come from continued judicial practice under existing rules and from China\u27s shifting approach to reciprocity
Misaligned Lawmaking
Get PDFThis Article makes three contributions. First, it introduces the Misalignment Thesis in the context of U.S. trade policy. The Misalignment Thesis is a descriptive claim about how the structure of a legislative bargain influences the long-term stability and effectiveness of that bargain. Second, the Article introduces the normative corollary to the Misalignment Thesis: if political stability hinges on respecting the legislative bargain, interdependent policies should be subject to renegotiation on the same timeline and implementation on the same terms. In light of this prescription, I offer three concrete proposals for aligning trade liberalization and trade adjustment assistance in order to protect and promote the goals of both policies. Most importantly, I argue—contrary to most commentary—that the Trump Administration’s proposal to limit the duration of trade agreements like NAFTA would better align trade liberalization and trade adjustment assistance. Third, the Article discusses the Misalignment Thesis’s broader application to deregulatory bargains struck in a wide variety of fields, including transportation, telecommunications, and healthcare. The Misalignment Thesis suggests that deregulation often has unintended consequences because the structure of deregulatory bargains undermines their long-term effectiveness
Governing Cascade Failures in Complex Social-Ecological-Technological Systems: Framing Context, Strategies, and Challenges
Get PDFCascade failures are events in networked systems with interconnected components in which failure of one or a few parts triggers the failure of other parts, which triggers the failure of more parts, and so on. Cascade failures occur in a wide variety of familiar systems, such as electric power distribution grids, transportation systems, financial systems, and ecosystems. Cascade failures have plagued society for centuries. However, modern social-ecological-technological systems (SETS) have become vast, fast moving, and highly interconnected, exposing these systems to cascade failures of potentially global proportions, spreading at breathtaking speed, and imposing catastrophic harms. The increasing potential for cascade failures of the magnitude of the 2008 financial system collapse, which had a truly global reach and affected systems well beyond finance, screams out for clear thinking about governing vulnerability to cascade failures in SETS. Yet, legal scholarship on the theme is essentially nil, and a more comprehensive, generalizable governance theory leveraging knowledge from scientific research on cascade failures has not emerged. Research initiatives are needed to forge ground on three fronts: (1) system modeling and monitoring; (2) event prediction; and (3) event prevention, response, and recovery. This Article is a first step in that direction. Part I outlines the cascade failures problem. Part II summarizes the scientific research on cascade failures. Part III identifies strategies for controlling cascade failures. Part IV explores the governance challenges of deploying those various strategies in large-scale SETS. Part Vextends the analysis to the special case of cascade failures within ecological systems and the difficulties of managing them through the strategies coming out of cascade failures science. Lastly, Part VI suggests directions of future research on governance of cascade failures
Resilience Theory and Wicked Problems
Get PDFThis Article posits, first, that resilience theory offers important insights into our understanding of wicked problems and, second, that to understand the value of resilience theory to wicked problems, we should start by going back to the context of Rittel’s and Webber’s 1973 delineation of the ten characteristics of a “wicked problem.” Rittel and Webber were in fact among the vanguard of researchers beginning to articulate the realization that social and ecological systems—now social-ecological systems (“SESs”)—do not follow the predictable and mechanistic rules of Newtonian physics. As a result, SESs do not yield, at least not over the long term, to engineering-based “solutions” designed to satisfy contemporary priorities and desires. Instead, like resilience theorists, although lacking resilience theory’s vocabulary, Rittel and Webber acknowledged that change is the norm for both social and ecological systems and that the realities of complex adaptive social-ecological systems make “once and done” planning and management impossible.
In rereading Rittel and Webber almost fifty years later, however, it becomes useful to pull apart the blending of social capriciousness and ecological panarchy that together, for them, added up to “wickedness” in social problem solving. Social capriciousness—the fact that social priorities and desires can both evolve over time and flip in response to political events such as elections—has become the far more accepted component of “wickedness”; few anymore expect social “solutions” to persist indefinitely. However, that same acceptance of continual, often unpredictable, change has not yet translated to the ecological side of wicked problems—which is precisely why resilience theory can help twenty-first-century citizens to formulate more productive approaches to those problems
Governance of Emerging Technologies as a Wicked Problem
Get PDFGovernance of emerging technologies . . . presents a conundrum. No single optimum solution exists, but rather a collection of second-best strategies intersect, coexist, and—in some ways—compete. This situation seems unsatisfactory until it is observed through the lens of the “wicked problem” framework. The wicked problem concept recognizes there is often no single, optimal solution to such a problem, but rather a mix of substandard solutions that must “satisfice.” That is the best that can be done with a wicked problem. This also may be the best solution for the governance-of-emerging-technologies problem.
This Article discusses the advantages of using the wicked problem framework to rethink the governance-of-emerging-technologies problem. Using this framework forces the recognition that there will not be a single, effective solution to this problem. The defining characteristics of a wicked problem—complexity, diversity, and uncertainty—make a perfect or even satisfactory solution to emerging technologies governance beyond reach. Rather, the best strategy will be to integrate a number of imperfect tools, recognizing and trying to compensate for their particular flaws, in pursuit of moving forward with highly beneficial technologies, while exercising responsibility and care to the extent feasible.
Part I expands the argument that emerging technologies are difficult to govern, and these management challenges align with the definition of a wicked problem. Part II surveys the various approaches that have been advocated for governing emerging technologies, describing not only their advantages but also their flaws and limitations. Finally, Part III elaborates on how the wicked problem concept provides a viable framework for moving forward with a governance system that is imperfect but suffices to achieve an acceptable outcome
The Wicked Problem of Zoning
Get PDFZoning is the quintessential wicked problem. Professors Rittel and Webber, writing in the 1970s, identified as “wicked” those problems that technocratic expertise cannot necessarily solve. Wicked problems arise when the very definition of the problem is contested and outcomes are not measured by “right and wrong” but rather by messier contests between winners and losers. This accurately characterizes the state of zoning and land use today.
Zoning is under vigorous and sustained attack from all sides. Conservatives have long decried regulatory interference with private development rights.More recently, progressive housing advocates have begun to criticize zoning for making thriving cities unaffordable and for exacerbating racial segregation. Environmentalists argue that zoning is responsible for urban sprawl and for increasing carbon emissions. Economists blame zoning for restricting residential mobility, which limits fluidity in labor markets and thereby reduces the agglomeration surplus that thriving places like New York and San Francisco should be producing. And these are just some of the concerns. The breadth of these criticisms reveals the multiplicity of issues implicated by modern zoning—from the balance of public power and private rights, to distributional concerns, environmental interests, economic efficiency, and externalities along many dimensions. Most do not admit of a single “right” answer. Zoning is a wicked problem, indeed.
In true “wicked” fashion, it is difficult even to explore answers because of the predictable and entrenched interests in almost any zoning dispute.
Zoning, when properly implemented and designed, should give communities time to absorb changes gradually and should provide reassurance to neighbors that one new project will not trigger other new ones too quickly. But zoning should facilitate change and not lock in the status quo. In other words, using zoning to moderate the pace of community change can act as a lubricant to some development by lowering the stakes for community opposition and protecting incumbent expectations. People should not expect zoning to prevent change, but people can reasonably expect that changes will happen at an appropriate pace.
Part I describes the current uses and justifications for zoning and reveals the profound disagreements at the heart of land use regulations today. Part II explores how slow, incremental change minimizes zoning’s interference with expectations. Part III identifies specific land use tools and doctrines that can help to minimize disruption by controlling the pace of community change
The Constitutional Logic of the Common Law
Get PDFThis Article uses two concepts from philosophical logic, the transitive property and syllogistic reasoning, to examine the history and theory of the common law. More specifically, the Article uses the transitive property to challenge the claims of sovereignty theorists that parliamentary supremacy is truly the most fundamental historical and theoretical basis of the British constitution. Instead, the transitive property helps show that the history and theory of the common law tradition has long provided a role for independent courts in maintaining the rule of law as a foundational principle of the British constitution. The Article then closely analyzes the reasoning of Marbury v. Madison to trace through two syllogisms the legal bases for the Constitution\u27s and the courts\u27 authority, demonstrating that Chief Justice Marshall grounded these sources of authority differently in his opinion. The Article uses these two syllogisms to challenge the view that the courts\u27 exercise of judicial review must depend, logically or legally, on the existence of a written constitution. Taken together, these two elements of logical reasoning help show historical and theoretical affinities between the US and the UK constitutional traditions that run deeper than the existence of parliamentary sovereignty in the United Kingdom or a written Constitution in the United States
Management Succession in Korea: Tunneling, Semi-Tunneling, and the Reaction of Corporate Law
Get PDFRecently in Korea, certain issues of corporate law became the subjects of fierce political debates unlike many other jurisdictions where corporate law issues generally remain in the exclusive realm of professionals and academics. This Article begins with the question of why corporate law issues attracted so much political attention in Korea and whether such political attention actually helped improve the corporate law. In pursuing the answers to such questions, this Article identifies a recurring pattern: (i) existence of strict rules against seeking private benefits; (ii) various clever measures to circumvent such rules; (iii) failure of the courts to regulate such circumventing measures; (iv) many proposals for new statutes in the legislature, which often become politicized and lead to suboptimal results; and (v) the stricter new rules that prompt another round of circumvention.
This pattern of rules--circumvention--passive judiciary--stricter statutory rules--further circumvention is most salient when the controlling shareholders attempt to implement management succession (i.e., transferring ownership and managerial power to the descendants of the controlling family). This Article analyzes a few measures widely used in Korea for management succession: issuing stock at a low price, selling treasury stock at a low price, funneling of business, tolling, and conducting horizontal spin-offs. While some of these measures fall under the typical category of tunneling, some are dubious. By tracking the chain of actions (by the corporations and the controlling family members) and reactions (by the government, including the executive, judiciary, and legislative branches) along the line of the foregoing pattern, this Article shows the importance of the judiciary\u27s role in corporate law and the limitation of the political lawmaking process in corporate law. The stories involving management succession in Korea also show that the rules, being vulnerable to circumvention, cannot effectively address the corporate governance problems without the concurrent application of the standards
Singapore\u27s Puzzling Embrace of Shareholder Stewardship: A Successful Secret
Get PDFIn the wake of the 2008 Global Financial Crisis (GFC), the United Kingdom created the first stewardship code, which was designed to transform its rationally passive institutional investors into actively engaged shareholders. In the UK corporate governance context, this idea made sense. Institutional investors collectively own a sizable majority of the shares in most of the United Kingdom\u27s listed companies. In turn, if the UK stewardship code could incentivize them to effectively monitor management to act as good shareholder stewards --the managerial short-termism and excessive risk-taking, which were identified as contributors to the GFC, could be avoided.
The United Kingdom\u27s idea to adopt a stewardship code sparked a global shareholder stewardship movement. Unsurprisingly, Singapore as a corporate governance leader in Asia, adopted a stewardship code. Based on a superficial textual analysis, the Singapore Code appears to be a near carbon copy of the UK Code. However, this Article, which provides the first in-depth comparative analysis of stewardship in Singapore, demonstrates how Singapore has turned the UK model of stewardship on its head. Rather than enhancing the shareholder voice of institutional investors, shareholder stewardship has been used in Singapore as a mechanism for entrenching its successful state-controlled and family-controlled system of corporate governance. This development has been entirely overlooked by prominent international observers and would be beyond the wildest imaginations of the original architects of the UK Code. Viewed through an Anglo-American lens, this use of stewardship may suggest that Singapore has engaged in a corporate governance sham. However, this Article argues the opposite: it appears to be a secret to Singapore\u27s continued corporate governance success and provides a much-needed Asian (as opposed to Anglo-American) model of good corporate governance for Asia