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Clarke Colloquia

Clarke Colloquium Series presentations take place each week. Faculty and senior graduate students meet to present and discuss works-in-progress on law and culture in East Asia. The informal setting encourages discussion and the series' focus on new and cross-disciplinary research provides attendees with a nuanced view of Asian institutions and practices.


Fall 2014 Clarke Colloquium Series Events

Please RSVP to Donna Hastings, dkh25@cornell.edu for attendance at each of the talks. 

Monday, September 22 , 4:15-5:55 PM, Rm 276, Myron Taylor Hall
Lingyun Gao,
Associate Professor of Law, Fudan University
The Transplantation of Trust Law into China and Its Problems

Monday, September 29 , 4:15-5:55 PM, RM 276, Myron Taylor Hall
Sayaka Takano,
Research Fellow, Japan Society for the Promotion of Science; 2014 Clarke Program Visiting Scholar
Mobile Phones, Wooden Benches, and Blackouts: Doing Ethnography of Law in Indonesia
Co-sponsored with Cornell Southeast Program and the Cornell Department of Anthropology

Monday, October 6, 4:30-6:30 PM, Myron Taylor Hall (Room # TBA) 
The Clarke Lecture Soo-Hyuck Lee, Chair Professor, Dankook University Graduate School of Legal Studies and Public Administration; Director, Dankook Humanities Academy, Dankook University; Dean, Human Resources Development Center, Dankook University
Three Hypotheses on the Korean Peninsula Issues - about the Destiny of North Korea and Chinese Policy towards North Korea and the North Korean Nuclear Program

Monday, October 20, 4:15-5:55 PM, Rm 276, Myron Taylor Hall
Timothy Webster,
Assistant Professor of Law & Director, East Asian Legal Studies, Case Western Reserve School of Law
The Merchant and the Missionary: How China and America Use International Economic Law

Monday, October 27, 4:15-5:55 PM, Rm 276, Myron Taylor Hall
Yun-Ru Chen, Postdoctoral Fellow, Baldy Center for Law & Social Policy, State University of New York in Buffalo; S.J.D. Harvard Law School
Paradoxes of the National Family Law in Colonial East Asia:  Taiwan as the Nexus

Monday, November 10, 4:15-5:55 PM, Rm 276, Myron Taylor Hall
Gan Ying
, Professor, School of International Law, East China University of Political Science and Law
New China, New Dream--Market Economy Reform and Social Changes, Seen from a Foreign Trade Law Angle


Monday, November 17
, 4:15-5:55 PM, RM 276, Myron Taylor Hall
Miyako Inoue
, Associate Professor, Department of Anthropology, Stanford University
Law and Techné: The Stenographic Typewriter, the Filing System, and Postwar Legal Reform in Japan

Co-sponsored with Cornell East Asia Program, Cornell Department of Anthropology and Cornell Department of Science & Technology Studies

 

Past Colloquium Series


2013 Colloquium series events

Wednesday, September 4
Yoshihisa Hayakawa
, Professor of Law, Rikkyo University
Consumer Protection and Private International Law - Two Different Approaches to Conflicts in the Rule-Making-Process of UNCITRAL

Wednesday, September 11
Frank Zhang, J.S.D. Candidate, Cornell Law School
Enforcing Ad Hoc Arbitration Awards Under Chinese Law

Wednesday, September 18
Takayuki Kihira, LL.M 2006, Partner Mori, Hamada & Matsumoto (Tokyo)
Recent M&A Trends in Japan - With a Particular Focus on SoftBank's Acquisition of Sprint Nextel

Wednesday, October 2
Kentaro Matsubara, Professor of Law, University of Tokyo, Faculty of Law
Land, Credit and Social Structuring in Qing South China

Monday, October 21
The Clarke Lecture Sun-Uk Kim, President of Ewha Womans University
Gender Equality Legislation in Korea

Wednesday, October 30
Jie Cheng, Associate Professor of Law, Tsinghua University School of Law, Nathaniel Fensterstock Visiting Associate Professor of Law (Fall 2013) Columbia Law School.
Contradiction, Reconciliation, and Mutual-Strengthening: A Review of Institutional Interaction between the NPCSC and the Hong Kong Judiciary since 1997

Wednesday, November 6
Wei Cui
, Associate Professor University of British Columbia Faculty of Law, International Visiting Associate Professor of Law (Fall 2013) Columbia Law School
Administrative Decentralization and the Rule of Law: Evidence from Chinese Tax Administration

Wednesday, November 13
Zhaoxin Jiang
, Postdoctoral Associate, Clarke Program in East Asian Law and Culture, Cornell Law School
The Lost Soul Mates: On the First Judge's Strike in China


FALL 2012 COLLOQUIUM SERIES EVENTS


The Logic of Security/The Ethics of Care: From Japan at Risk
Yayo Okano
, Professor Graduate School of Global Studies, Doshisha University, Japan
Thursday, August 30

Yayo Okano  is Professor of Political Philosophy at Doshisha University, Kyoto Japan. Her specialty is North American contemporary political philosophy and feminist theory. She is the author of Feminizumu no Seijigaku (The Politics of Feminism: Introducing the Ethics of Care to the Global Society, Misuzu Shobo, 2012 ),Citizunshippu no Seijigaku (Citizenship as Politics: the Criticism of Nation States, Enlarged version, Hakutaku-sya, 2009) and Hou no Seijigaku (Law as Politics, Seido-sya, 2001). Her English publications include "Reconciliation over Past Sexual Slavery in Japan: The Case of the Comfort Women" in Muta Kauze and Beverley Anne Yamamoto (eds), The Gender Politics of War Memory (Osaka: Osaka University Press, 2012).


China's International Behavior: A Critique of Cultural Conception of Risk in International Politics
Dongsheng Zang, Associate Professor of Law, Academic Director of Chinese Legal Studies University of Washington School of Law
Thursday, September 20

Professor Zang joined the faculty of the University of Washington Law School full-time in 2006, after serving as a visiting professor in 2005-06. His academic interests include international trade law, and comparative study of Chinese law, with a focus on the role of law and state in response to social crises in the social transformation in China. He holds an S.J.D. and LL.M. from Harvard Law School, in addition to his LL.M. from Renmin University (Beijing) and LL.B. from Beijing College of Economics. His doctoral dissertation, One-way Transparency: The Establishment of the Rule-based International Trade Order and the Predicament of Its Jurisprudence, was awarded the 2004 Yong K. Kim '95 prize. He was a research fellow at the East Asia Legal Studies at Harvard Law School during the 2004-05 academic year.


Can Louis Vuitton Dance with Hiphone? Rethinking the Idea of Social Justice in Intellectual Property Law
Haochen Sun, Professor of Law at the University of Hong Kong and Deputy Director of the Law and Technology Center at HKU, a Visiting Professor University of California Davis Law School, fall 2012
Thursday, September 27

Haochen Sun is currently Assistant Professor of Law at the University of Hong Kong and Deputy Director of the Law and Technology Center at HKU. He will teach at University of California Davis Law School as a Visiting Professor in the fall of 2012. 

Sun teaches and researches in the areas of intellectual property and property. His scholarship draws on social, cultural and political thought to explore the theoretical foundations of intellectual property and property law. His most recent research is concerned with intellectual property protection of luxury goods, the ideas of social responsibility and justice in intellectual property law, the reconceptualization of the nature of fair use in copyright law, a new social-political theory of the public trust doctrine, and Hegel's theory of property. During the past few years, Sun also worked on theoretical and policy studies of various intellectual property issues, such as copyright protection and digital technology, the three-step test used in the international copyright treaties, and patent and public health.


The Clarke Lecture: US Policy and the Changing Economic and Financial Landscape of East Asia
Robert Dohner, Deputy Assistant Secretary for Asia at the Department of the Treasury
Tuesday, October 2

Robert Dohner is Deputy Assistant Secretary for Asia at the Department of the Treasury, responsible for the region extending from Pakistan and India through China, Korea, and Japan. Prior to this, he was the Director of the East Asia Office, responsible for China, Japan, and other economies of East and Southeast Asia. Prior Treasury positions include Tokyo Financial Attaché and Director of the Office of Central and Eastern Europe.

Before joining Treasury, Dohner was a Senior Economist at the President's Council of Economic Advisers, a Principal Economist at the OECD, and Senior Economic Adviser to the Under Secretary of State for Economic and Agricultural Affairs. He also taught economics at the Fletcher School of Law and Diplomacy at Tufts University, and he has worked at the GATT and the Monetary Authority of Singapore. Dohner has a Ph.D. in economics from M.I.T. and a 40 year old MGB.


Exceptional—and Ordinary—Powers in an Exceptional State: Patterns and Lessons from China's Use of Law to Address Threats to Security and Order
Jacques deLisle, Professor of Law &Professor of Political Science;Director, Center for East Asian Studies, University of Pennsylvania
Thursday, October 18

Jacques deLisle's research and teaching focus on contemporary Chinese law and politics, including: legal reform and its relationship to economic reform and political change in China, the international status of Taiwan and cross-Strait relations, China's engagement with the international order, legal and political issues in Hong Kong under Chinese rule, and U.S.-China relations. His writings on these subjects appear in a variety of fora, including international relations journals, edited volumes of multidisciplinary scholarship, and Asian studies journals, as well as law reviews. DeLisle is also professor of political science and director of the Center for East Asian Studies and associate director of the Center for the Study of Contemporary China at Penn and director of the Asia Program at the Foreign Policy Research Institute. He has served frequently as an expert witness on issues of P.R.C. law and government policies and is a consultant, lecturer and advisor to legal reform, development and education programs, primarily in China.


Saving TEPCO: Risk, Trust and Financial Market Activism in Post-Fukushima Japan
Hirokazu Miyazaki, Director East Asia Program, Associate Professor of Anthropology Cornell University
Thursday, October 25

Hiro Miyazaki is Associate Professor of Anthropology and Director of the East Asia Program at Cornell University. He has written extensively on indigenous Fijian gift giving and Japanese derivatives trading. He is the author of The Method of Hope: Anthropology, Philosophy, and Fijian Knowledge(Stanford University Press, 2004) and Arbitraging Japan: Dreams of Capitalism at the End of Finance(University of California Press, December 2012).


Legal Analysis on Accusations on Renminbi Exchange Rate
Han Long, Professor of Law, Zhongnan University of Economics and Law, Visiting Scholar Cornell Law School
Thursday, November 1

Professor Han Long earned a PhD in International Economic Law and finished a post-doctoral research in world economics at Wuhan University. Han is now a professor of Law at the Zhongnan University of Economics and Law. During 2004 and 2005, Han conducted research on financial law and the law of WTO under the guidance of Prof. Joel Seligman at Washington University in St. Louis and Professor John H. Jackson at Georgetown who is widely honored as the "Father of the WTO." Han has long been engaged in the research on financial law, international financial law and the law of the WTO. Han chaired many national, ministerial and provincial research academic projects in China, including China's national key project in social science. Han published more than a hundred academic papers in Chinese and foreign languages, more than ten academic books;and won many scientific research awards. Han has made unique and original research contributions to the legal fields of RMB exchange rate, offshore finance, WTO financial services and regulation of financial risk and crisis.

Judicial Risk and Assessment of Judges in China
Xingzhong Yu, Professor of Law, Cornell Law School
Thursday, November 8

Xingzhong Yu's academic interests include Chinese law and legal history, social theory, comparative legal philosophy, constitutional law, and cultural studies of law. Prior to joining Cornell Law School, he was with the Faculty of Law at the Chinese University of Hong Kong (CUHK) where he taught jurisprudence, constitutional law and Chinese law. He holds an LLM and SJD from Harvard Law School, and while there was a lecturer on law, senior research fellow in East Asian Legal Studies, and visiting associate professor. He has held various visiting academic positions at Beijing University's Department of Law, Jilin University, Shandong University, Northwest University of Politics and Law, Columbia Law School, and the Australian National University. He was the Wang Distinguished Visiting Professor at Cornell Law School in the fall semester of 2010. As an Associate at Chicago's Baker &McKenzie (1995-1998), he assisted clients doing business in China, providing expertise on Chinese law relating to foreign invested enterprises. His 1995 J.S.D. dissertation on A Theory of Civil Order s was written under the guidance of Chinese Law specialist William P. Alford. He is the author of numerous articles and three books, including Rule of Law and Civil Orders (2006).

SPRING 2012 COLLOQUIUM SERIES EVENTS

Path Dependence and Interconnected Institutions: Transplantation of the Institution of Derivative Action
Guanghua Yu, Professor of Law and Director of the Centre for Chinese Law, University of Hong Kong
Wednesday, February 1


UNCITRAL Online Dispute Resolution WG -An Ambitious Challenge by UN for Making New World-Wide Uniform Rules

Yoshihisa Hayakawa, Professor of Law, Rikkyo University
Wednesday, February 29

FALL 2011 COLLOQUIUM SERIES EVENTS


Japan's Jury System: A Progress Report

Valerie Hans, Professor of Law, Cornell University Law School

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Valerie Hans conducts empirical studies of law and is one of the nation's leading authorities on the jury system. Trained as a social scientist, she has carried out extensive research and written widely about social science and the law. Her theoretical and policy interests in citizen participation in law have led her to focus on jury decision making.

Her research and writing have encompassed a range of topics such as the juvenile death penalty, racial and gender discrimination, the litigation explosion, the adversary system, corporate responsibility, the insanity defense, court legitimacy, and media impact. She is also studying the introduction of new lay participation systems in Japan and Korea. Her books include Business on Trial: The Civil Jury and Corporate Responsibility (2000); The Jury System: Contemporary Scholarship (2006); and two books coauthored with Neil Vidmar: Judging the Jury (1986) and American Juries: The Verdict (2007).

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Communality in International Development Aid by a Japanese NGO –An Approach to the Study of Hitozukuri Capacity Building and Religion—

Chika Watanabe, Ph.D. Candidate, Department of Anthropology, Cornell University

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Chika Watanabe's dissertation looks at how a Shinto-based Japanese NGO called OISCA strives to create certain forms of persons and notions of community through agricultural and "spiritual" trainings in the ambiguous space between "the religious" and "the secular."  In addition to a master's degree in Forced Migration, she has worked with NGOs in Japan and Southeast Asia.  Her research interests revolve around the question of what drives humanitarian and development aid work.

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Fighting against Bribery: Staying Competitive in the Increasingly Level Playing Field

Mitsuru Claire Chino, J.D. '91, Corporate Counsel, Itochu Corporation, Japan

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Claire received her B.A. (cum laude) from Smith College and her J.D. from Cornell Law School. She was a partner of an international law firm before she joined Itochu Corporation as its corporate counsel. As corporate counsel, she is primarily involved in overseeing the legal aspects of the company's global investments in the energy, natural resources and chemicals industry sectors. In addition, she is committed to women's causes within the company, and helped the company start a diversity program in 2004. In 2005, she was recognized as a "Young Global Leader" by the World Economic Forum. In 2006, Newsweek Japan selected her as one of 100 "Japanese Women Recognized by the World." She has been recognized by Yale University (Yale World Fellow), the Asia Society (Asia21 Fellow) and by the U.S.-Japan Foundation. Since 2010, she has been a member of the Global Agenda Council of the World Economic Forum. In 2010, she was named by Asia Legal Business as one of the top 25 in-house counsel in Asia. She lectures at Keio Law School and Hitotsubashi Business School (International Corporate Strategy).

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Clarke Lecture: The Unnoticed Diverse Functions of Bridewealth in Traditional china

Zhu Suli, Former Dean and Professor of Law, Peking University School of Law, and 2011-12 Wang Distinguished Visiting Professor, Cornell Law School

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Professor is one of the  foremost legal scholars in China today with a broad range of research interests including law and society, judicial process in China, law and literature and law and economics. His major books include  Rule of Law and Its Native Resources(1996, 2003),How the Institution Evolves(1999, 2007), Sending Law to Countryside (2000, 2010), Roads Lead to City, Legal Transformation in China(2004), Something May Have Happened, Legal Academic Transformation in China  (2004), and  Law and Literature, A Study of Drama in Yuan Dynasty (2006), and other articles and book reviews. He translated American legal works into Chinese, including works of Benjamin Cardozo, Richard Posner, and Robert Ellickson. Professor Zhu  served as vice dean (1999-2000) and then dean (2001-2010) of Peking Unversity Law School; and has been visiting scholar of Harvard-Yenching Institute (1999), and Yale Law School (2000).

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Implementation of International Banking Regulation in the US, Japan, and the EU

Minoru Aosaki, LL.M. '05, Visiting Fellow, Shorenstein Asia-Pacific Research Center, Stanford University

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Aosaki's research interest is in the relationship between law and society regarding financial regulations. In this presentation, he compares the economic and regulatory environments of the banking industry in the US, Japan, and the EU, and argues that bank regulators in these countries are facing different challenges in implementing the new international standards for banking regulation, Basel III. Prior to joining Stanford, Aosaki was deputy director for international banking regulations at the Financial Services Agency, Government of Japan, where he was responsible for developing bank regulatory standards as a member of groups of the Basel Committee on Banking Supervision. He received a Bachelor of Laws degree from Hitotsubashi University in 2001, a Master of Public Administration degree from Syracuse University in 2004, and a Master of Laws degree (LL.M.) from Cornell Law School in 2005.

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Product Defect in the U.S. and Japan: Oh'oka Sabaki, Hoichi the Earless, and More

Susumu Hirano, Professor of Policy Studies, Chuo University

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Susumu Hirano is a Cornell graduate (an ex-ILJ member), member of the New York State Bar, and currently a tenured professor of law at Chuo University Faculty of Policy Studies. The Faculty was relatively newly established in 1993, in the history of more than 125 years of Chuo University, to become the center of the interdisciplinary studies of law, economics, business management, cultural studies, and so on at the University. Professor Hirano, also a graduate of Chuo University Faculty of Law, had been invited to be a full-time member in the Faculty of Policy Studies by the founders thereof. After experiencing the General Counsel at NTT DoCoMo, the largest mobile (cellular) phone carrier in Japan, he determined to join the Faculty of Policy Studies as a tenured professor to pursue and teach legal studies from an interdisciplinary viewpoint. He obtained his doctor degree (policy studies) in 2007 from Chuo University. His research and teaching interests include torts and products liability; cyber law and electronic contracts; and several areas of “law ands.” He plans to make a presentation on the Japanese definition of product defect, comparing with the RESTATEMENT (THIRD) OF TORTS; PROD. LIAB., which was co-drafted by Professor James A. Henderson, Jr., from a Japanese cultural perspective using two famous narratives from Oh’oka the Wise (a traditional urban myth about a famous real judge in Edo era) and Kuwaidan (a Japanese famous horror story).

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When Infrastructures Attack: The Politics of Disrepair in China

Julie Chu, Assistant Professor of Anthropology, University of Chicago

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Julie Y. Chu is a socio-cultural anthropologist with interests in mobility and migration, economy and value, ritual life, material culture, media and technology, and state regulatory regimes.   She is the author of Cosmologies of Credit: Transnational Mobility and the Politics of Destination in China (Duke University Press, 2010).  Her current project examines border technologies and the various infrastructures in place (legal-rational, financial, cosmic, piratical) for managing the flows of people and things between Southern China and the United States.  A graduate of NYU's Program in Culture and Media, she is also currently completing video projects related to her fieldwork as well as developing a new ethnographic focus on Chinese soundscapes, especially in relation to the changing qualities and valuations of the Chinese concept of "renao" (a bustling scene, social liveliness or literally, "heat and noise").

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Practical Learning, Social Design, and the Hope Factory in South Korea: Re-Specifying Legal and Social Analysis

Amy Levine, Visiting Professor, Changwon National University, South Korea

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Amy Levine recently completed her PhD, The Hope and Crisis of Pragmatic Transition: Politics, Law, Anthropology and South Korea, in Cornell's Anthropology Department.  She has been conducting research in South Korea since 2001 and has been a Visiting Professor at Changwon National University since 2009.  Her dissertation research focused primarily on the administrative, intellectual, and pragmatic transitions taking place during Roh Moo Hyun's administration from 2003 to 2008 inside a handful of NGOs, NPOs, and think tanks in Seoul.  She is currently developing a comparative project on nuclear energy policies in the United States and Great Britain.

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FALL 2010 COLLOQUIUM SERIES EVENTS

The Fall 2010 Colloquium Series was featured in a Cornell Law School Spotlight.

Democracy and Religion: How Can We Apply 'Secularization' Theory to Japan?Shigeki Uno, Institute of Social Science, University of Tokyo

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Professor Uno is Associate Professor at Institute of Social Science, University of Tokyo in the division of Comparative Contemporary Politics.  He holds a B.A., M.A., and Ph.D in Political Science from the University of Tokyo.  Professor Uno received the Suntory Prize for Social Science and Humanities for his book, "Tocqueville: A Theorist of Equality and Inequality."

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From Clues to Reenactments: The Aesthetics of Evidence in Modern ThailandSamson Lim, Ph. D Candidate, Department of History, Cornell University

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Samson Lim’s dissertation explores the nature of information about violent crime in Thailand through a historical analysis of crime news, crime fiction, and police investigation practices. Prior to studying history, Samson received a master’s degree in city and regional planning, also at Cornell and worked for several years in the field of urban planning and development in Singapore, San Francisco, and Bangkok.

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Normative Ingredients of Law in the Light of Cultural DifferenceKo Hasegawa, Professor of Philosophy of Law, University of Hokkaido School of Law

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Professor Hasegawa is a member of the Board of Directors, The Japan Association of Legal Philosophy; and Associate Member of the Science Council of Japan. He holds an LL.B. from the Faculty of Law, University of Tohoku; an LL.M. from the Graduate School of Law and Politics, University of Tokyo; and an LL.D. from the Graduate School of Law and Politics, University of Tokyo.

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Mergers and Acquisitions Surge in Japan: Lessons from Unsolicited Takeover BidsTakayuki Kihira, LL.M. ’06, Partner at Mori Hamada & Matsumoto, Tokyo

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Takayuki Kihira is a Cornell Law graduate and is currently a partner with the Japanese law firm of Mori Hamada & Matsumoto, a sponsor of the Clarke Program.  Mori Hamada & Matsumoto is one of the few full-service international law firms based in Tokyo with approximately 300 attorneys.  Last year the firm was the top-ranked legal adviser on mergers and acquisitions in Japan in league tables published by Bloomberg, Thomson Reuters and mergermarket.  Mr. Kihira’s areas of practice include mergers and acquisitions, general corporate matters and dispute resolution.  In particular, he has extensive experience in cross border M&A transactions and international dispute resolution proceedings.  Mr. Kihira will introduce recent M&A developments in Japan, including some unique lessons from unprecedented hostile takeover bids.

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Cultural Complexity and the Place of LawKo Hasegawa, Professor of Philosophy of Law, University of Hokkaido School of Law 

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Professor Hasegawa is a member of the Board of Directors, The Japan Association of Legal Philosophy; and Associate Member of the Science Council of Japan. He holds an LL.B. from the Faculty of Law, University of Tohoku; an LL.M. from the Graduate School of Law and Politics, University of Tokyo; and an LL.D. from the Graduate School of Law and Politics, University of Tokyo.

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Practicing Law in Asia: New Challenges and OpportunitiesKo-Yung Tung, Morrison & Foerster LLP, New York

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Ko-Yung Tung is Senior Counselor resident in Morrison & Foerster’s New York office.  An eminent international lawyer, practicing in both the public and private sectors, he counsels sovereign governments as well as multinational corporations.  In addition, he is a Visiting Lecturer at Yale Law School. Mr. Tung served as Vice President and General Counsel of the World Bank (1999 -2003) and as Secretary General of the International Centre for the Settlement of Investment Disputes (ICSID) (2000 – 2003). Mr. Tung also held a number of high-level appointments, including as a member of the Presidential the Commission on United State Pacific Trade and Investment Policy and the East-West Center Board of Governors, of which he was Chairman.

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Similarities and Differences of Two Economies after the Bubble BurstShuhei Aoki, General Manager for the Americas and Chief Representative in New York, Bank of Japan Representative Office in New York

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Shuhei Aoki is Bank of Japan’s General Manager for the Americas and Chief Representative in New York, who has been in the positions since May 2008. During his career at the Japanese central bank since 1981, he worked mostly for policy, design and operations of payment and settlement systems. As the work has a great deal of cross border aspects, he could enjoy chances to contribute to such international fora as the Committee on Payment and Settlement Systems of the Group of Ten central banks and a similar group for central banks in Asia and Pacific region.

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Rights, Capabilities and Faculties:  On the Possibilities of Human DevelopmentYu Xingzhong, Wang Visiting Professor of Law at Cornell Law School, Professor at The Chinese University of Hong Kong, Faculty of Law

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Xingzhong Yu teaches Chinese law, constitutional law, and jurisprudence the Chinese University of Hong Kong and previously served as an Associate (Chinese Legal Specialist) with the Chicago office of Baker and McKenzie. He holds an LLM and JSD from Harvard Law School, and while there was a lecturer on law, senior research fellow in East Asian Legal Studies, and visiting associate professor. He has held various visiting academic positions at Beijing University’s Department of Law, Columbia Law School, and the Australian National University.  His research interests include social and political theory, cultural studies of law, jurisprudence, constitutional and administrative law, comparative law, Chinese legal history, and PRC law. He is the author of Rule of Law and Civil Orders and has contributed to various journals and book projects.

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Documents: ‘Gifts’ of Form in the Debate on Hybrids and ChimerasW. Calvin Ho,
J.S.D. Candidate, Cornell University Law School

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The presentation will examine the impact of law on the “problematisation” of biomedical research involving human-animal combinations within an ethical setting. The author will focus in particular on the ways in which ethical challenges – both perceived and conceived – have been translated into legal issues that could be managed through legislative or regulatory action. The paper will reflect broadly the ways in which legal norms and practices shape scientific and technological development, with focus on developments in three key jurisdictions: the United Kingdom, the United States and Singapore.

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Political Pluralization in China 2003-2006: Lessons from Hydropower and International TradeAndrew Mertha,
Associate Professor, Department of Government, Cornell University

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Professor Mertha has written two books, several chapters in edited volumes and articles in The China Quarterly, Comparative Politics, and International Organization. His current project is a comparison of political "rectification" campaigns in China from the 1950s through 2005 and in Cambodia under the Khmer Rouge (1970-1975 in the "liberated areas," 1975-1979 under Democratic Kampuchea, and 1979-1998 in exile to the maquis). Longitudinally is examining institutional continuity, while spatially using the cases of the PRC and Cambodia to leverage what we know about political rectification – past and present – in authoritarian regimes more generally.

Talk Overview
by Kelly Terranova

Professor Mertha’s discussion focused on the way in which groups which have traditionally been excluded from the policymaking process in China have recently found ways to become part of the system and have even been successful at shaping both local and national policy. The most interesting part of his discussion is the way in which these groups, whom he calls policy entrepreneurs, have been able to be successful; not by changing the system but by finding a way to work within it. We in the west are so focused on democratization and the need for structural change, but the movement in China has shown that this is certainly not the only way to achieve political liberalization and arguably not even the best way for some countries.

The Chinese political system, like most systems, has a lot of fragmentation. The policy entrepreneurs, which typically include disgruntled local officials, journalists and NGO officials, have learned to use this fragmentation to their advantage and to push their policy agendas right through the cracks. The primary tool used to do this is what Mertha calls issue framing. The official state "frame," or policy reason that the state uses to push its agenda, is the need to develop the western part of China. The state emphasizes how various projects will bring electricity, roads, commerce and economic development to people who have traditionally been ignored or forgotten and how it will ultimately create a more harmonious society. This is very difficult to argue against. What the policy entrepreneurs have been able to do in the instances where they have been most successful, is to re-frame the issue. They have been able to "get there first" and tell the story in a way that captures the hearts and minds of the people and paints a picture of a cause that they are persuaded to get behind. Once the policy entrepreneurs are able to do this, it sort of de-claws the state and mobilizes the people to rally against them.

One interesting thing to note about this is the importance of the policy entrepreneurs keeping their supporters under control. We saw in the Pubugou example that when it starts to get out of hand and the supporters become more like a mob of protestors, the government is going to get the final word. It no longer becomes about the policy goals, but degenerates into a struggle for the government to assert their power and regain control. The policy entrepreneurs are no longer in a position to negotiate. They have to walk away. Some of the successful alternate frames that the policy entrepreneurs have been able to use have included environmental rights, minority rights, cultural heritage and social justice. One notable frame that was unsuccessful was the issue of inadequate compensation.

Kelly Terranova is a third-year J.D. student at Cornell Law School. She holds a bachelor's degree in political science and is interested in cross-cultural comparative studies.

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The Art of the Gut: Manhood and Ethics in Japanese PoliticsRobin M. LeBlanc, Department of Politics, Washington and Lee University

Co-sponsored with Cornell University East Asia Program


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Professor LeBlanc teaches comparative politics, political theory, and women’s and gender studies. Her published books include The Art of the Gut: Manhood, Power, and Ethics in Japanese Politics (forthcoming, October 2009, University of California Press) and Bicycle Citizenship: The Political World of the Japanese Housewife.

Talk Overview
by Emma Truswell

Robin LeBlanc began her presentation about masculinity in Japanese political life by introducing her audience to two of her research subjects: men with different politics and backgrounds but who used, and were constrained by, common patriarchal structures and conventions. Takada-san is a conservative politician bred into politics; Baba-san is an older man who was, during LeBlanc’s study, entering politics for the first time, hoping to reform politics in his town and prevent the construction of a nuclear power plant. LeBlanc’s talk focused on the role of silent empathic political agreement between men, aun no kokyu or the art of the gut. Her discussion was colored by the insights and experiences of Takada-san and Baba-san, as well as her own observations: especially of a strategic meeting of town patriarchs at the home of Baba-san, where she silently served tea.

LeBlanc’s presentation was structured by four major questions. First, how does male dominance shape Japanese politics? Le Blanc found that men in Japanese politics—particularly the "middle managers of power" that were her focus—spoke of their manhood primarily as a constraint. It required that they act as breadwinners, show familial loyalty and conform to certain standards they felt were expected of them as ethical men. Yet Le Blanc also identified masculinity as a resource that provides opportunities for one man to manipulate others using the art of the gut. The art of the gut describes the culture of silent rather than explicit arrangements made between men—the entreaty to a powerful man by breadwinners whose livelihoods are at stake, or the quiet disapproval of a respected patriarch. In Japanese politics, such an agreement is the perfect contract, made by understanding and without the clatter of words. It is also, LeBlanc writes in her book, "the insider’s strategy"—it confirms assumptions and supports existing structures. Women are excluded from conveying or receiving the political messages that form silently between the guts of men.

Secondly, how are identity and agency, structure and power linked? In exploring this question, LeBlanc focused on the meeting she observed at the home of Baba-san. This meeting followed the difficult decision amongst members of Baba-san’s alliance, the Referendum Association, to appoint a young, attractive single mother as candidate. Traditionally, the voting system in local Japanese politics has led to careful arrangements in which candidates of the same affiliation split geographical areas and organizations within which to campaign, in the hope that the popularity of one candidate will not directly lower the votes of another. When such a scheme was suggested at the meeting, Baba-san silenced discussion without full explanation; he declared that backroom arrangements of this kind were an insult to voters did not create “the sort of election our group conducts”. The meeting ended soon afterwards.

LeBlanc explained that such silent understandings support existing systems; because the need to make an arrangement explicit challenges the power structure it helps to hold in place. The quiet suppression of traditional electoral strategy engaged in by Baba-san helped to answer LeBlanc’s third question: is there a relationship between gendered identity and ethical agency? LeBlanc was particularly fascinated by the use of masculine political connections to assist an outsider, concluding: "the unsettling truth is that pursuing masculine gender privilege and using power ethically is, at least sometimes, the same thing." LeBlanc addressed briefly her final question: can social science capture these connected phenomena in operation? Her answer to this question was a hesitant "yes," but she commented on dangers of such analysis: such as that the subjects of her research made independent decisions as men and as ethical agents only in the narrow spaces left by the structures that constrain them.

Emma Truswell is an international exchange student at Cornell Law School from the University of Sydney in Australia. She has a strong interest in Asian culture, and the relationship between law and public policy.

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The Tokyo Women's Tribunal and the Turn to FictionKaren Knop, Faculty of Law, University of Toronto


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As rapporteur for the International Law Association's Committee on Feminism and International Law, Professor Knop was responsible for the ILA's report on gender and nationality (2000). She sits on the Board of Directors of the Canadian Council on International Law and has served on the Executive Council of the American Society of International Law. She writes on public international law, with a focus on issues of interpretation, identity and participation.

Talk Overview
by Buhm-Suk Baek

Professor Karen Knop’s presentation deals about the Tokyo Women’s International War Crimes Tribunal on Japan’s Military Sexual Slavery in 2000 to examine “some path not taken in international law’s development with a view to understanding its contemporary resonance.” In other words, she tries to show what the outcome of Tokyo Women’s Tribunal itself would have had.

The International Military Tribunal for the Far East (IMTFE) in 1945 could be a landmark for gender studies because there were actual prosecution and convictions explicitly based on rape, especially describing the consequences of Nanking massacre. IMTFE, however, did not address the comfort women system which can be considered institutionalized mass rape of civilian women. Thus, the Tokyo Women’s Tribunal was established by human rights NGOs and activists from ten Asian countries with a goal to remedy the failures of the original Tokyo tribunal.

The Tokyo Women’s Tribunal is a trial of events not as compensating for the IMTFE, but as the IMTFE. It means the Tribunal applied the international law of 1937 to 1945 as it existed during the time of the crime when the comfort women system operated. The Tribunal is a kind of new twist on people’s tribunal that enabled it to convict as the IMTFE after World War II. There was a debate over the legitimacy of this tribunal whether it is people’s tribunal or mock tribunal. The Tokyo Women’s Tribunal, however, distinguishes it from other people’s tribunals because, as Professor Knop pointed out, there is the mixed context of the fact and fictionality in the Tribunal. In addition, the fiction can help establish the Tribunal’s legitimacy by “providing a consistent legal approach to disposing of legal objections such as statutes of limitations.”

Then she draws a parallel between the Tokyo Women’s Tribunal and the “turn to the past” in literature. The Tribunal, she argues, parallels two particular forms of literary engagement with the past. One is “fact-ion” and the other is the “pre-quel” as opposed to sequel. Application of these two mechanisms enables us to get a better sense of how the Tribunal created facts in the past. The Tribunal tells a factual story of the original tribunal and at the same time, adds a prequel to the history of sexual violence in wartime and the story of prosecution of gender related crimes in international law. In this sense, this precedes the international tribunals in Rwanda and Yugoslavia in the 1990s. Therefore, Professor Knop suggests that the Tribunal’s ‘as if’ device is a distinctive form of critique.

And this mixed context of the fact and fiction in the Tribunal: same witnesses, same victims, different judges and prosecutors fills the gaps in history to blend in what happened on issues of gender-justice since 1990s with preceding history in World War II. In other words, “by peopling and writing the 'pre-quel' to these late-twentieth century feminist initiatives in international law,” the Tribunal made these initiatives as a continuation of the factional Tribunal, rather than a change from the original Tokyo trial. They were, as professor Knop emphasized, gradual next steps to include the issue of women’s rights and gender justice in international law.

Regarding the limitation of this kind of critique, she pointed out three things. The Tribunal stuck to the legal sensibility of the time. By categorizing rape as a violation of family honour, the judges did not change the sexual stereotypes embedded in international law. The Tribunal also had to contend with the impact of colonialism on the international law of the World War II period. And, in creating this past, the Tribunal did not clearly distinguish between doing what the IMTFE could and should have done, and what it would have done, if the issue of the comfort women had been fully addressed at the original Tokyo tribunal.

The final part of the judgment in the Tribunal can be “had women been there, it would have been different.” This might be an introduction of another kind of fiction and the idea that women were not there creates another feminist past and present conundrums.

Buhm-Suk Baek is a J.S.D. candidate at Cornell Law School.  He is currently writing his dissertation, Prospects for a Regional Human Rights Mechanism in Asia, under the supervision of Professor Muna Ndulo.

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Movements to 'Reform' the Death Penalty in China and Thailand: What will the Future Bring?John Blume, Cornell University Law School

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Professor Blume joined Cornell Law School in 1993, and, in conjunction with Cornell Professors Johnson and Garvey, formed the Cornell Death Penalty Project to foster empirical scholarship on the death penalty, offer students an opportunity to work on death penalty cases, and provide information and assistance for death penalty lawyers. He has served since 1996 on the Habeas Assistance and Training Project Counsel, which consults the Defender Services Committee of the United States Courts. He teaches Criminal Procedure, Evidence, the Death Penalty in America and supervises several capital clinics.

Talk Overview
by Herve Comeau

Professor Blume, director of the Cornell death penalty project, began his lecture with an overview of why exactly it is important to study the death penalty in Asia. Most important among these was the overwhelming number of state executions in Asia, which account for over ninety percent of executions worldwide, and the wide popular support for the death penalty in Asia.

Professor Blume advanced two theories as to why popular support for the death penalty is stronger in Asia then it is in the West. The first was the "Asian Values" theory, which is the theory that popular support is greater in Asia because there is a different conception of what comprises individual rights, "including the right to life." Additionally, more value is placed on the greater social good. The second is the deterrence theory, which is a belief in the deterrent effect of capital punishment; as espoused by the common adage in Asia, "You have to kill the chicken to scare the monkey." Professor Blume did offer counter-evidence to what are considered "Asian" attitudes towards the death penalty. Most convincing being that six Asian countries, among them Cambodia and the Philippines, have either abolished the death penalty or have become de facto abolitionist states.

Professor Blume Started his analysis with Thailand, which has over fifty offenses for which the death penalty can be sought; which include crimes against the king, and drug offenses. However Thailand's commitment to the death penalty is tenable seeing that although there are seven hundred and fifty people on death row, and hundreds are sentenced yearly, there have been no executions since 2003. This is because the majority of capital crimes are commuted by the King. The King does this through either "collective pardons," which are done on some significant event (i.e. the King's birthday) or "individual pardons," which are done on a case to case basis. Of the executions that do take place eighty percent are for murder. However there are a large number of extrajudicial killings, which generally involve the police killing drug traffickers.

Professor Blume indicated that there were signs that Thailand might be moving towards final abolition. In their old constitution the Thai had a constitutional caveat to the right to "enjoy the right and liberty in his or her life and person" which stated: "punishment by death penalty provided by law shall not be deemed a punishment by cruel and unusual means." The new constitution which was ratified in 2007 held no such caveat. This was purposefully done to provide an easier road towards abolition, if the state so chose. Interestingly, though ninety five percent of the population is Buddhist, a religion which espouses non-violence and the sanctity of life, Professor Blume noted that the Buddhist establishment has not publicly released their stance on the death penalty. Blume advanced two possible causes of this. First, that the Supreme Patriarch, the highest ranking monk in the country, is appointed by the King, and second, that monks are forbidden from making statements of a political nature.

In the second half of his talk Blume focused in on China, the world's leading executor of human beings. Blume opened with a disclaimer stating that as a result of lack of access to data (most of it being considered a state secret in China) nothing could be said for sure. Additionally, most judicial opinions are not published, and the proceedings at the trial and appellate level are not open to the public. Blume believed China to be exceptional, in that they executed an estimated six to fifteen thousand people a year. Two of the leading explanations behind this exceptionnalism are, one, that "the high number of executions is attributable to the fact that China historically has been a very retributive society that has executed large numbers of individuals, and two, that the "high number of executions is attributable to the Communist takeover." Blume is a proponent of the second line of reasoning.

The Communist Party in China has taken the position that they execute only "unmistakably wicked subhuman's who commit unpardonable, horrific crimes." The government, through the heavily controlled media, highly publicizes the executions of brutal or horrific crimes (e.g., serial killers, dismemberment, cannibalism, and graft or greed). Blume also called attention to a trend moving away from persecuting counter revolutionaries to persecuting white collar criminals, because of China's expanding market. The Chinese have also conducted "strike hard campaigns" in which hundreds of thousands of criminals are sentenced to death within a span of 3 months and executed as early as seven days later. Because of the extreme dearth of basic civil rights during death penalty trials, i.e. the right to a jury trial and the right to confront your accuser, relatively small reform can go a long way. Blume noted that these reforms, though they've been the principal result of wrongful conviction cases being highly publicized, it's possible that the government was behind the heavy publication, and was seeking to manipulate public opinion. The new policy has become,"Kill fewer and kill carefully." Some key reform efforts that Blume observed were that the lowest tier of Chinese courts can no longer hear capital cases, that Capital Appeals (at least some) are now open to the public, and that the Supreme People's Court (SPC) must review and confirm every death sentence. The ultimate effect of these reforms has been that "the number of death sentences has dropped dramatically (to around 5,000 a year)."

Herve Comeau is a second-year J.D. student at Cornell Law School.

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Mitsuru Claire Chino

Mitsuru Claire Chino

Diversity in the Japanese Workplace: Law and PracticeMitsuru Claire Chino, J.D. '91, Corporate Counsel at Itochu Corporation, Japan




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Claire Chino is a Cornell Law graduate and was a partner of an international law firm before she joined Itochu Corporation as its corporate counsel. As corporate counsel, she is primarily involved in overseeing the legal aspects of the company’s global investments in the energy, natural resources and chemicals industry sectors. In addition, she is committed to women’s causes within the company, and helped the company start a diversity program in 2004.

Talk Overview
by Janette Lee

On Tuesday, October 27, Claire Chino gave a lecture at Cornell Law School entitled “Diversity in Japan’s Workplace.” Ms. Chino, who is a graduate of Cornell Law School, worked as a partner at an equity firm in Japan and is currently corporate counsel for Itochu Corporation.

First, Ms. Chino laid out the basic legal framework for diversity in the workplace. Japan’s Constitution of 1947 formally laid the foundation. Japan made an international commitment to equality for women when it signed the United Nations Convention on the Elimination of All Forms of Discrimination Against Women in 1979. The Equal Employment Opportunity Law was passed in 1985 in order to formalize the Convention into Japanese law. On the domestic front, Japan passed a Basic Law on Gender-Equal Society in 1999, where Japan envisioned itself in the twenty-first century as a country which emphasized not just men’s and women’s rights, but also their responsibilities. Instead of merely enumerating that which men and women were entitled to, it empowered by spreading and sharing responsibilities, regardless of gender, for making a better Japanese society.

Despite these sweeping legal provisions, reality posed quite a different picture. According to the World Economic Forum Gender Employment Index, Japan ranked 75th place out of 130 countries in 2009 for gender equality in the workplace. This is a vast improvement from the previous year, however, when it ranked 98th place. Ms. Chino pointed out that the rankings presented a skewed picture of reality, which was in fact worse than what the result indicated. In determining the rankings, four factors were considered: health, educational attainment, political empowerment, and economic participation. Japan excelled in the first two categories: it had the lowest infant mortality rate in the world, the highest life expectancy rate, and the highest literacy rate. However, Japan had a dismal showing in the Political Empowerment category, where it ranked below 100. The Economic Participation category, which gauged the number of women who had attained leadership positions in corporations, also ranked Japan very low.

Ms. Chino further elaborated these points with statistics. Only 11.3% of the members of the House of Representatives are women. This number is actually a boost from previous statistics and reflects the recent government shuffling where the ruling party, which had ruled since the end of the second World War, was overthrown by the more liberal minority party. 15% of the judges, ranging from the lowest to the highest courts, are women—the Supreme Court only has one female in its ranks. 14% of lawyers and 9.7% of company managers in Japan are women.

Japan also faces social problems which reflect, contribute to, and are a result of gender inequality. At the forefront is its extremely low birthrate, which is 1.37 overall and under 1.00 in metropolitan Tokyo. The median marriage age for women is 29, and fully one-third of women between the ages of 30 and 34 are still single. However, the number of children born out of wedlock is extremely low (only 2%), in contrast with the United States, where 36.8% of children are born outside of marriage. Ms. Chino noted that in Japan, this is largely because having children out of wedlock is culturally forbidden. On the flip side, women have high life expectancy—78 years, as opposed to 72 for men. Today, the demographic discrepancy is not too great, since 14% of the population is under 14 years of age and 19% of the population is over the age of 65. However, by 2055, only 8% of the population will be under 14, and 41% of the population will be over 65. This creates the problem of the “Chinese Vase” in which the upper part (the high life expectancy) is disproportionately swollen compared to the fragile bottom (the low birthrate). Such a vase cannot stand.

Janette Lee is a third-year J.D. student at Cornell Law School.

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Timothy Webster

Timothy Webster

Ambivalence and Activism: A Short History of Employment Discrimination in ChinaTimothy Webster, J.D., LL.M. '06, Senior Fellow, the China Law Center, and Lecturer in Law, Yale Law School



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Talk Overview
by Isaac Lindbloom

Mr. Webster presented a lecture addressing the recent developments in antidiscrimination laws in China. In his lecture, he addressed the three largest groups of people who face discrimination in China: hepatitis B virus carriers, migrant workers, and women. In particular, he focused on discrimination that occurs in the workplace. He also focused primarily on hepatitis B carriers, as they are the group who has made the most headway in the area of employment equality in China.

Mr. Webster started out with the Tale of Two Trials. Mr. Webster spoke of how these two trials, which both took place in 2003, sparked the recent developments in the employment antidiscrimination laws in China. The first case was the case of Zhou Yichou. Zhou Yichou applied for a government position in Jiaxing, Zhejiang. The district had nine positions to fill, and in order to obtain any government position in China, applicants must pass a rigorous civil service exam. Zhou Yichou scored the eighth highest score, out of one hundred and thirty applicants, on the written and oral exams. Thus, he was offered a position, conditioned on him passing a physical exam. Unfortunately, the physical exam revealed that he was a hepatitis B carrier. The applicable laws at the time clearly forbade any hepatitis B carriers from holding government positions, so his offer was rescinded. As a result, Zhou Yichou contemplated committing suicide. However, he felt a better alternative was to first buy some candy and a paring knife, and stab the government official who delivered his rescission to death (presumably eating candy on his way to the official’s office). This, of course, was equivalent to “suicide by cop” because killing a government official in open daylight with many witnesses sealed his fate immediately. Zhou Yichou was executed in early 2004.

The second case was that of Zhang Xianzhu. Zhang Xianzhu also took a civil service exam for a government position, but for a position in Wuhu, Anhui. He scored the highest score out of thirty applicants. He too received a conditional offer for employment, and he too subsequently had his offer rescinded due to discovering that he was a hepatitis B virus carrier. Fortunately, rather than committing suicide, or taking any other violent action, he decided to instead start a website aimed at improving public awareness of the government-mandated discrimination against hepatitis B virus carriers. Through this website, Zhang met Zhou Wei, a leading antidiscrimination lawyer and scholar in China. Zhou Wei convinced Zhang to sue the government over their overt discrimination, which he did. In his case against the government, Zhang did win, but only a moral victory. The court decided for the government on all issues except one. The court found the government’s finding Zhang “unfit” was erroneous because he was merely a hepatitis B virus carrier, and not actively infected with the virus. But, this victory was a hollow one for Zhang because there was no remedy available to him, as the court also found that the recruitment period had ended, and the number two applicant had already been awarded the position. What this case did do, though, was spark public interest which eventually lead to better antidiscrimination laws in 2007.

At this point in his lecture, Mr. Webster revealed some very interesting data from surveys given to employers in China. Of the employers who filled out the survey, sixty-three percent said that, given the opportunity, they would discriminate against HIV and AIDS carriers. Fifty-six percent said they would discriminate against hepatitis B virus carriers, and fifty-three percent admitted they would discriminate against STD carriers. Interestingly, only six percent said they would discriminate against women (which, if true, is probably better than American employers!). Surveys also revealed that nearly a third of surveyed individuals who were actual hepatitis B virus carriers claimed that they had been fired at some point because of their status as hepatitis B virus carriers. Moreover, they reported that seventy percent of their bosses openly told them that they were being fired because of their hepatitis b virus carrier status.

Next, Mr. Webster provided some illuminating background on laws leading up the 2007 new antidiscrimination law. For instance, in 1987, a state council issued its Administrative Regulation on Hygiene in Public Places which declared that infectious disease carriers had to receive a “health certification form” in order to work in positions with “direct contact” with customers, such as in a hotel, park, inn, restaurant, café, museum, library, and a theatre. Mr. Webster argued that this was essentially the state council’s way of telling those carrying or infected with infectious diseases, including hepatitis B virus, “we don’t want you in public places.” Mr. Webster explained also that many of these diseases, including hepatitis B virus, can only be spread through blood or semen, or through infected fecal matter. This makes it highly unlikely for those infected to spread it to others unintentionally in such places as a restaurant or library.

Fortunately, Mr. Webster pointed out, with the two cases of Zhou and Zhang, and Zhang’s website, public interest was sparked and eventually grew so loud that the Chinese government responded with the Employment Promotion Law in 2007. What was even more remarkable about this was that the government put the proposed law out for public comment. The public, indeed, did respond with thousands of letters and about 11,000 online comments. Finally, the Ministry of Labor promulgated an opinion that prevents discrimination against those who are carriers of certain infectious diseases, including hepatitis B virus. It did not, however, prohibit discrimination against those who are actively infected with the infectious diseases. The Ministry of Labor also issued regulations that provides for punishment of up to 1,000 (approximately $150 USD) for employers who discriminate against hepatitis B carriers.

Isaac Lindbloom is a third-year J.D. student at Cornell Law School. Click to collapse text




 


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Clarke Lecture: Jobs and Hope: Gone Forever? Cases from JapanYuji Genda, Professor, Institute of Social Science, University of Tokyo

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Professor Genda is a labor economist and a noted public commentator on the problems facing Japanese youth. A recipient of the prestigious Suntory Prize for Social Sciences and Humanities, he is the author of numerous books and articles on youth, work, and the Japanese labor markets.

Talk Overview
by Janette Lee

On Wednesday, November 4, Yuji Genda, Professor at the Institute of Social Science and Director of the Hope Studies Program at the University of Tokyo, gave the 2009 Clarke Lecture at Cornell Law School. His speech was entitled, “Jobs and Hope: Gone Forever? Cases from Japan.” Professor Genda, a noted labor economist and academic scholar, explored the relationship between hope and work in the face of Japanese financial crisis and social change.

Professor Genda identified 1998 as a turning point when Japan underwent a transformation that fundamentally changed its identity as a nation: financial institutions that were previously viewed as unshakable went bankrupt; small and medium sized companies disintegrated; unemployment soared; and the Japanese youth, the most vulnerable group during times of recession, was hit the hardest. In the scramble to protect employment of the middle aged and elderly, companies slowed down or halted altogether the recruitment of new graduates.

Yet, Professor Genda argues that the problems predated the 1990s; instead, they stemmed from the 1980s. In 1985, there was a rapid increase in the foreign exchange rate, which caused serious distress to the Japanese industry. The year also marked the passage of the Equal Employment Opportunity Act between men and women. The population also aged very quickly in the 1980s: by 1994, Japan had become an “aged society” where over 40% of the population was over the age of 65. Professor Genda identified two major symbolic changes that took place in the 1980s.

First was the shift in self-employment. A unique characteristic of the Japanese economy that distinguishes it from the other developed countries is that a large percentage of the workers—75%—are in small- to medium-sized firms. This phenomenon began right after the Second World War, when many entrepreneurs in Japan engaged in setting up their own businesses. Sony, Honda, and Panasonic, Japan’s largest companies, all began as small factories. To this day, small high-tech firms in Japan are indispensable to large firms worldwide. However, since the 1980s, the percentage of workers outside the non-agricultural and forestry services who were self-employed declined tremendously. This marked decline was especially concentrated among younger self-employees. The proportion of those who were self-employed only rose for those who were over the age of 60. In general, since the 1980s, younger workers are less likely to be their own boss.

The second significant change was in the family. The family unit was the symbol of the post-war generation; however, since the 1980s, there has been a drastically increasing number of single-person households. This can be attributed to the increasing number of the elderly who lost their spouses and young, unmarried persons who live on their own. Fully one-fourth of the population live in single-households. These statistics, however, only provide a superficial understanding of the changes in the Japanese family. Two case studies from the 1980s reveal more deep-seated problems: in 1980, a 20-year old, who was from a distinguished and “normal” family and who had failed his college entrance exams twice, bludgeoned his father and mother to death while they were sleeping. In 1983, scandal erupted when several children from a training home for troubled youths died. They had been subjected to physical violence as a means of rehabilitation. Although there was media condemnation of the incident, there were also quite a few teachers, television commentators, and parents who supported such Spartan means of raising children. It was no longer possible, they argued, to properly raise children solely through education and affection. Professor Genda said that both these incidents reveal that something is seriously wrong in the Japanese family since the 1980s.

In piecing the two major social symbols together—self-employment as a symbol of independence and family as a symbol of security—Professor Genda said that the deterioration of both has led to a diminished sense of independence and security. When one looks at the typical ideal of success in Japan, one thinks of passing the college entrance exams, securing a job in a major Japanese multinational firm, and working continuously until retirement. However, there was a parallel success story in Japan—that of poor rural persons graduating from junior high school, moving into larger cities to get jobs, getting married, and eventually starting their own businesses. This was the Japanese dream for ordinary families. This mostly disappears in the 1980s, largely as a result of declining self-employment. The reason for declining self-employment is difficult to pinpoint. One possible explanation is related to money: with increasingly difficult working conditions (such as mental health problems and longer hours), most people prefer the safety net that large firms provide. However, money is not the only explanation. Here, Professor Genda identifies another major factor: the family. Young, prospective entrepreneurs from the rural areas always had the security of knowing that if they did not succeed in setting up their own businesses in the city, they could always return to their family in the countryside. With the decline in agriculture, however, the rural family is no longer a source of security.

Professor Genda explained that sometimes, the motivation for independence comes from the reality of poverty. Poor youths, who cannot afford to go to college, have nothing to lose from starting their own businesses. However, poverty has not always been the driving force behind independence. There is the ever-increasing phenomenon of the leet—a “do nothing” youth who prefers leisure over work. Before the economic crisis, the leet tended to come from rich families—they were lazy because they could afford to be. Since the 1990s, however, the poor youth have vastly outnumbered the rich youth; these are young people from poor families who, in the face of declining economic prospects, are more likely to be discouraged from working. This will have negative consequences, as more will depend on government aid when their parents can no longer afford to support them. For many non-regular workers who have been dispatched, there is no family to go back home to.

Under such bleak circumstances, however, has been the rebirth of hope as a means of reinvigorating independence and security. In uncertain times such as these, people, fearing the unknown, grasp for something strong to hold onto. One-third of Japanese adults aged 20 to 59 say that they have no hope, or that they believe that hope is unattainable. Professor Genda’s main thesis is that we need to transform uncertainty into risk, and this can be done by increasing hope among the people. It is impossible to transform uncertainty into certainty, but people can stretch their imaginations and learn to articulate their uncertainties; this will empower them to face the future. As a means of studying the connection between hope and society, the University of Tokyo organized a Hope Program. The first task was to define “hope.” Professor Genda defined hope as a wish for something to come true by action. Instead of focusing on the broad and vague notion of “hope,” Professor Genda believes it is more helpful to focus specifically on the four elements of hope (wish, something, to come true, and action); this will help people articulate for themselves their own story and how to meet their hopes for the future. The key to helping people find hope is communication. Professor Genda said that one unique tendency of hopeful people who take action is that they are more likely to have experienced serious setbacks, and they are more likely to discuss their needs. This is significant: talking about setbacks in the past can also open up talk about hope for the future. Professor Genda emphasized the need to talk frankly about setbacks, with the appropriate humor, to help people take a brighter look at the future. Playfulness, then, is essential to finding attainable hope by taking chances.

Professor Genda finds one big hope in Japan’s aging society: the elderly people, who have experienced setbacks and obstacles, have valuable experiences that they can recount humorously to young people. Young people, feeling at ease by the humorous narratives, will listen. Such handing down of experiences empowers young people to take courage in the face of uncertainty and empowers them to take risks. Thus, the youth can find hope, not despair, in an aging society. Professor Genda refuses to take a pessimistic view of the fundamental changes in society that have been occurring since the 1980s. Rather, he expects a brand new culture in Japan to emerge after it overcomes the current difficulties. Based on an aging society, this will be the driving for a new economy in Japan. Japan should take advantage of this and use the aging population to encourage the youth to have hope in the future.

Janette Lee is a third-year J.D. student at Cornell Law School.

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Street as Courtroom: State Accommodation of Labor Protests in South ChinaXin He, Associate Professor, City University of Hong Kong School of Law

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Talk Overview
by Yubo Lu

In Professor He’s speech, he summarized his recent research in state accommodation of labor protest in south China and the role and function of Chinese courts and other administrative agencies in resolving these disputes.

Professor He first explained that conventional images of popular protests in China tend to present the role of the state as being overly aggressive and with very little tolerance. A classic example of such would be the Tiananmen Square incident on June 4, 1989. However, things have changed quite a lot since then. Today, popular protests in China tend to involve more peaceful demonstrations, and the state’s reactions tend to be milder and far less aggressive. In addition, while conventional research methods tend to focus largely on the protesters and seek to understand popular protests from the protesters’ perspective, Professor He focuses his research on the functioning logic and operational pattern of the state instead. His data come primarily from government documents and interviews with judges and state officials.

The number of labor disputes in China has skyrocketed since the mid-1990s, especially after the passage of the new Labor Contract Law in 2008. This is particularly the case in south China, as it is the “world factory.” The situation is further aggravated and escalated by the recent financial and economic crises and the passage of the new Labor Contract Law, which gives workers many additional rights that did not exist in the previous labor laws in China. The issues that these labor disputes involve include pack pay, compensation for overtime, miscalculation of payment, and collapsing enterprises. For example, the Labor Contract Law triggered thousands of shoe manufacturers in south China to run out of business and become unable to pay their workers.

Professor He then discussed what he called “street as courtroom.” Often times, instead of (or sometimes in addition to) going through the formal procedures to commence litigation in court, workers take their grievances directly to the street. As a result, many state agencies including the courts would literally approach the protesting workers in the street to talk to them and try to negotiate a deal with them. Despite the illegality of such collective action, the protesters may end up with favorable results. Sometimes when necessary, courts will even extend the relevant statutes of limitations and circumvent certain formal procedures in order to facilitate the workers’ case filings. Evidence is usually assumed in a typical labor dispute case, which means that the employers will bear the burden of proof. In addition to (or perhaps even instead of) acting as neutral mediators, judges will actively look out for the workers by conducting investigations and collecting information and evidence for the plaintiffs. In cases where the employer does not have any assets or cannot be found, the state will even allocate specific funds to compensate the workers to certain degrees. Not surprisingly, the results of these labor dispute cases tend to favor the plaintiffs.

Yubo Lu is a third-year J.D. student at Cornell Law School.

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Critical and Theoretical Approaches to the Chinese Legal Reforms from Tiananmen to the Harmonious SocietyLeila Choukroune, Assistant Professor HEC School of Management; Department of Law and Taxation at l'École des hautes

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Professor Choukroune’s research interests include public governance and the internationalization of law, the legal aspects of international trade, the legal aspect of doing business in China and India, the internationalization of Chinese and Asian Laws, and business and human rights. An article "Harmonious Norms for Global Marketing: The Chinese Way,” will be forthcoming in the Journal of Business Ethics.

Talk Overview
by Herve Comeau

Professor Leila Choukroune has a PhD from Paris I Sorbonne and is a qualified lawyer to the Paris bar; she is also assistant Professor of international and comparative law at HEC Paris School of Management, arguably the best business program in Europe. Professor Choukroune gave a brief seminar on a critical and theoretical approach to the Chinese legal reform. She began her lecture with a quote by Liu Xiaobo, the Chinese critical intellectual and Human Rights activist who was arrested in 2008 and whose whereabouts the Chinese government has not divulged. In his article titled Tiananmen Paranoia Liu stated that, “Ever since the Tiananmen massacre, successive Chinese leaders have lived in a permanent state of paranoia and continue to treat even peaceful political groups as serious threats to their rule. This paranoia is worst at times such as this, in the immediate lead up to the anniversary of the massacre, when relatives of the victims are forbidden openly to pay tribute to the dead, dissidents are put under house arrest, and the Chinese media and Web sites are warned against making any mention of June 4.”

Professor Choukroune moved on to discuss the role of Economic modernity, social stability, and the normative tension in China. She characterized China in the 1990’s as seeking socialist rules of law, and trying to become a socially harmonious society. However, that society was and is principally a Marxist society and not a Confucian society as the Chinese government frequently relate themselves to. Professor Choukroune juxtaposed the image of the Chinese Olympic Games where the Chinese opened it by quoting Confucius and showcasing an extravaganza featuring 3,000 men dressed up as Confucian disciples, with the Eight Honors and Eight Disgraces written by President Hu Jintao; “Love the country; do it no harm. Serve the people; never betray them. Follow science; discard superstition. Be diligent; not indolent. Be united; help each other; make no gains at others' expense. Be honest and trustworthy; do not sacrifice ethics for profit. Be disciplined and law-abiding; not chaotic and lawless. Live plainly, work hard; do not wallow in luxuries and pleasures.”

So whereas the concept of socialist rules of law was the focal point of Chinese political discourse in the 1990’s, it is the Marxist principles of a socialist harmonious society that colors the dialogue of Chinese legal reforms today. Professor Choukroune characterized the Chinese use of disciplinary law as similar to Foucault’s idea of “institution disciplinaire,” but rather than be simply limited to prisons and small communities; it is applied to society as a whole. This is an attempt to create a society as defined by French philosopher Claude Lefort, where the government wishes to create a “fantasy of a society presumed to have overcome internal divisions. Everything is given over to the compulsion of producing unity, or rather the appearance of it. This compulsion is the real categorical imperative of totalitarian systems. (…) Now, totalitarian society has been, and continues to be, affected by democratic individualism. It is only intelligible against a background of democratic modernity.” Professor Choukroune utilizes the concept of the Peuple Un, or The One People, in order to explain China’s motivation in using disciplinary law as a weapon, and its refusal to adopt international legal standards.

However, China only maintains the semblance of an egalitarian society and not its actual principles. This fiction of harmony and justice has created disillusionment among the Chinese working class with judiciary. As a result the people have called for a return to mediation, and have sought to incorporate themselves into the legal system. Professor Choukroune gave several examples of Barefoot Lawyers, a Chinese phenomenon of self trained jurists, who have been arrested after having sought to implement Chinese legal protection of Human Rights. However, partly due to the increase to over six hundred law schools in China today, where there were zero twenty years ago, has brought glimmers of hope to Chinese workers who are being empowered with legal tools.

Herve Comeau is a second-year J.D. student at Cornell Law School.

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Thinking with Culture in Law and Development: Examples from NepalAmy Cohen, Michael E. Moritz College of Law, Ohio State University

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Professor Cohen teaches property, international dispute resolution, law and development, and mediation. Her research interests include dispute resolution theory and practice, particularly in international and transnational development contexts. Her recent scholarship explores how legal scholars and development practitioners are responding to the demands of globalization and neoliberalism through participatory problem-solving frameworks. She has worked on community development initiatives in Nepal, Thailand, and Ghana.

Talk Overview

by Kelly Terranova

In the 1980s and 1990s legal scholars began to propose that a change in culture was required in order to succeed in the development of the law in many areas, an approach that Professor Cohen calls neocultural intervention. The neocultural interventionists argue that in order to change the law, you must first change the people that the law governs. They believe that the reason the rule of law is failing in certain areas is because the people are not willing to turn to legal institutions for protection and conflict resolution. If they can succeed in instilling a new culture which values and respects the law, then they will be able to succeed in developing a new law that actually takes root.

Professor Cohen disagrees with this and points to examples from Nepal to show the limitations and even potential dangers that can result from trying to use culture as a tool for rule of law development. She specifically takes issue with two of the neocultural interventionists’ basic premises. First, that the existing cultures are indifferent to law and the people lack a legal consciousness, and second that by instilling new values, the interventionists will be able to predict and almost control how the people will behave.

Professor Cohen first emphasizes that the local populations may already have the beliefs and values regarding the law that the interventionists wish to instill and that their protests and demonstrations should not be mistaken as evidence that they lack belief in law but instead as evidence of their struggle to enforce it. To illustrate this point she turns to the Nepalese practice of chakka jams. Chakka jams are large traffic jams organized by the citizens in order to get the attention of authorities and force them to come to the scene and enforce the law. Chakka jams are often used after traffic accidents because especially in the rural areas, the police are unlikely to otherwise respond. The people organize in the streets and cause tremendous backups in traffic in order to keep the driver from getting away and also to force the police to actually come and arrest him. While these chakka jams are clearly extralegal, they are used not because the people have no respect for the law, but rather because they are demanding its enforcement.

The chakka jams are also used as a means to bargain for victim compensation. For example when a school bus killed a child, the people blockaded the road until the school offered his brother free tuition. This type of compensation is guaranteed in Nepal’s Transportation Act so really even though the people are using illegal means, they are doing so to guarantee that the law is carried out as it is supposed to be. They are acting outside of the law in order to demand that other areas of the law be properly enforced.

Professor Cohen emphasizes that while the people are not using the formal legal processes such as court systems or legislative reform to bring their claims, this does not mean that they disregard the law. They are trying in their own way to put themselves before the law and demand legal remedies. If this is true then it doesn’t seem like a change in culture is what is required at all. The people already desire and respect the law, the problem is that the law seems to be failing them.

Kelly Terranova is a third-year J.D. student at Cornell Law School.
She holds a bachelor's degree in political science and is interested in cross-cultural comparative studies.

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Thinking with Culture in Law and Development: Examples from NepalAmy Cohen, Michael E. Moritz College of Law, Ohio State University

Click to read more

Professor Cohen teaches property, international dispute resolution, law and development, and mediation. Her research interests include dispute resolution theory and practice, particularly in international and transnational development contexts. Her recent scholarship explores how legal scholars and development practitioners are responding to the demands of globalization and neoliberalism through participatory problem-solving frameworks. She has worked on community development initiatives in Nepal, Thailand, and Ghana.

Talk Overview

by Kelly Terranova

In the 1980s and 1990s legal scholars began to propose that a change in culture was required in order to succeed in the development of the law in many areas, an approach that Professor Cohen calls neocultural intervention. The neocultural interventionists argue that in order to change the law, you must first change the people that the law governs. They believe that the reason the rule of law is failing in certain areas is because the people are not willing to turn to legal institutions for protection and conflict resolution. If they can succeed in instilling a new culture which values and respects the law, then they will be able to succeed in developing a new law that actually takes root.

Professor Cohen disagrees with this and points to examples from Nepal to show the limitations and even potential dangers that can result from trying to use culture as a tool for rule of law development. She specifically takes issue with two of the neocultural interventionists’ basic premises. First, that the existing cultures are indifferent to law and the people lack a legal consciousness, and second that by instilling new values, the interventionists will be able to predict and almost control how the people will behave.

Professor Cohen first emphasizes that the local populations may already have the beliefs and values regarding the law that the interventionists wish to instill and that their protests and demonstrations should not be mistaken as evidence that they lack belief in law but instead as evidence of their struggle to enforce it. To illustrate this point she turns to the Nepalese practice of chakka jams. Chakka jams are large traffic jams organized by the citizens in order to get the attention of authorities and force them to come to the scene and enforce the law. Chakka jams are often used after traffic accidents because especially in the rural areas, the police are unlikely to otherwise respond. The people organize in the streets and cause tremendous backups in traffic in order to keep the driver from getting away and also to force the police to actually come and arrest him. While these chakka jams are clearly extralegal, they are used not because the people have no respect for the law, but rather because they are demanding its enforcement.

The chakka jams are also used as a means to bargain for victim compensation. For example when a school bus killed a child, the people blockaded the road until the school offered his brother free tuition. This type of compensation is guaranteed in Nepal’s Transportation Act so really even though the people are using illegal means, they are doing so to guarantee that the law is carried out as it is supposed to be. They are acting outside of the law in order to demand that other areas of the law be properly enforced.

Professor Cohen emphasizes that while the people are not using the formal legal processes such as court systems or legislative reform to bring their claims, this does not mean that they disregard the law. They are trying in their own way to put themselves before the law and demand legal remedies. If this is true then it doesn’t seem like a change in culture is what is required at all. The people already desire and respect the law, the problem is that the law seems to be failing them.

Kelly Terranova is a third-year J.D. student at Cornell Law School.
She holds a bachelor's degree in political science and is interested in cross-cultural comparative studies.

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