CMEL Newsletter (Jan - Feb 2024)

The Centre for Medical Ethics and Law (CMEL) has recently distributed its Jan - Feb 2024 Newsletter. It can be accessed here.

Zhao Yun and Yu Jiaying on Legal Status of Lunar Stations (Journal of Beijing University of Aeronautics and Astronautics Social Sciences Edition)

"Legal Status of Lunar Stations"
Zhao Yun and Yu Jiaying
Journal of Beijing University of Aeronautics and Astronautics Social Sciences Edition Vol.37 No.2 March 2024
Published online: February 2024

Abstract: Currently, lunar activities are entering a new phase - the planning and construction of lunar stations. However, the international law on lunar stationing activities needs to be further developed, while the legal status of lunar stations is the primary issue to be considered. Reflection on the legal status of lunar stations arises from the peculiarity of lunar station activities: they are carried out on celestial bodies, with the long-term objective of the sustainable development of human society, and they involve the use of a fixed area on the surface of a celestial body and create a de facto scope of activities. Lunar station activities in conformity with the Outer Space Treaty are categorized as free exploration and use of the Moon for the benefit and in the interests of all countries, without exclusive and permanent use of the lunar surface, and are open to other States on the basis of reciprocity. It is suggested that future ILRS activities can be conducted in either a “non-exclusive” or “temporary” manner to fulfill international legal obligations, and that the importance of “basis of reciprocity” and the scope of “visit” should be clarified. The following aspects of lunar stations need to be considered as specific factors in determining the legal status of the station: 1) the purpose and the size of the scope of a lunar station; 2) the mobility of a lunar station; 3) the duration of a lunar station; 4) the notification, update and sharing of lunar station information.

Peter Chau on Commentary on “Responsibility for Health and the Value of Choice” (Palgrave Macmillan Book Chapter)

"Commentary on “Responsibility for Health and the Value of Choice”"
Peter Chau
in Hon-Lam Li (ed), Lanson Lectures in Bioethics (2016-2022): Assisted Suicide, Responsibility, and Pandemic Ethics, (Palgrave Macmillan Cham, February 2024), pp. 109–120
Published online: February 2024

Abstract: This chapter is a commentary on T. M. Scanlon’s Lanson Lecture in Bioethics. It discusses whether the existence of disagreement affects the justifiability of “libertarian paternalism” and whether Scanlon’s “Value of Choice” account fits better with our considered judgments on allocation of health resources than luck egalitarianism.

Shane Chalmers and Desmond Manderson on Vortext (Law & Literature)

"Vortext"
Shane Chalmers and Desmond Manderson
Law & Literature
Published online: February 2024

Abstract: This article introduces the special issue of Law & Literature on “Colonial Legal Imaginaries | Southern Literary Futures”. The aim is to advance two imperative tasks. The first, analytic, task is to pay attention to the diversity of colonial imaginaries across the very different terrains, literatures, and epistemologies of the so-called South. Rather than continue to impose a Eurocentric canon on the domain of law and literature, the argument here is that we need to better immerse ourselves in the diversity of colonial imaginaries from places whose experiences were as different as Indigenous Australia, India under the Raj, African game reserves, or the post-conquest Americas. The second, ethical and aesthetic, task is to accept literature’s invitation not simply to document colonial, or for that matter post-colonial, ideologies, but to reimagine them. The realms of literature and art represent a crucial opportunity to talk back to power through the very modalities of fantasy and imagination, myth and story, that have been so indispensable to its maintenance. Each author in this collection wholeheartedly contributes to these two tasks, combining an analytical expansion of the past with a creative ethical engagement with the present and the future.

Taorui Guan on Cooperative Federalism and Patent Legislation: A Study Comparing China and the United States (CJIL)

"Cooperative Federalism and Patent Legislation: A Study Comparing China and the United States"
Taorui Guan
Chicago Journal of International Law (vol. 24, no. 2 (2024), pp. 259-304)
Published online: February 2024

Abstract: How should patent legislative power be allocated between central and local governments in order to construct a patent system conducive to promoting innovation? A comparative analysis of the models of the U.S. and China sheds light on this question. The early American states established their patent systems before the formation of the federal system, but the U.S. Constitution arrogated patent legislative power to the federal government, ending the era of decentralized patent systems. This centralized structure ensures uniformity in rules but might hinder the system’s adaptability and ability to experiment. In contrast, as China’s patent system evolved, its patent legislative power spread from the central to the local governments. This shift led to the coexistence of dual-level patent legislative structure. Currently, twenty-nine out of thirty-one province-level authorities (93.5%) and twenty-one out of 323 city-level authorities with local legislative power (6.5%) have established local patent laws. China’s patent system is not entirely decentralized but rather, semi-decentralized, as the locales not only implement their local patent laws but also must enforce the central government’s national patent laws. China’s semi-decentralized patent legislation model embodies significant features of cooperative federalism, where the central and local governments share the national power to handle affairs and collaborate to address issues. Yet, the central government maintains a dominant position in this cooperative relationship, as a consequence of China’s unitary state structure. Compared to the current centralized patent legislation model in the U.S., China’s semi-decentralized patent legislation model has the advantage of making statutory law more adaptable to local specificities and promoting local competition and institutional innovation. However, it also faces challenges, such as increased costs due to inconsistency; efficiency decline stemming from rent-seeking behaviors; and the risk that local protectionism will create anti-competitive effects.

New Book edited by Po Jen Yap and Mathias Siems: The Cambridge Handbook of Comparative Law (Cambridge University Press)

The Cambridge Handbook of Comparative Law
Edited by Mathias Siems, Po Jen Yap
Cambridge University Press
Published in February 2024
780 pp.

Book Description: Comparative law is a common subject-matter of research and teaching in many universities around the world, and the twenty-first century has aptly been termed 'the era of comparative law'. This Cambridge Handbook of Comparative Law presents a truly global perspective of comparative law today. The contributors are drawn from all parts of the world to provide different perspectives on how we understand the 'law' and how it operates in practice. In substance, the Handbook contains 36 chapters covering a broad range of topics, divided under the following headings: 'Methods of Comparative Law' (Part I), 'Legal Families and Geographical Comparisons' (Part II), 'Central Themes in Comparative Law' (Part III); and 'Comparative Law beyond the State' (Part IV).

Abstract of book review by Fernanda Pirie on 16 November 2024:

The Cambridge Handbook of Comparative Law, edited by Matthias Siems and Po Jen Yap, continues recent calls to expand the field of comparative law. By including authors drawn from all parts of the world, it presents ‘new perspectives’ on the field. This wide geographic remit proves successful as a way of moving beyond traditional ‘families’ and doctrinal topics. The contributors raise new themes for comparison, many related to public law and processes of change. But this, in turn, raises questions about the purposes of expanding the field. The volume largely concerns the laws and legal issues of modern states, and the authors do not venture far into history. Nor do they consider the alternatives offered by religious and traditional legal systems or forms of non-state ordering. I suggest that these subjects could productively expand the field even further, raising more theoretical questions about what law is and does.

(Please click here to view the full text of book review.)

New Book Edited by Kelley Loper et al: Gender, Sexuality and Constitutionalism in Asia

Gender, Sexuality and Constitutionalism in Asia
Edited by Wen-Chen Chang, Kelley Loper, Mara Malagodi, Ruth Rubio-Marín
Bloomsbury Publishing
Published in January 2024
384 pp.

Description: This book analyses the equal citizenship claims of women and sexual and gender diverse people across several Asian jurisdictions. The volume examines the rich diversity of constitutional responses to sex, gender and sexuality in the region from a comparative perspective. Leading comparative constitutional law scholars identify 'opportunity structures' to explain the uneven advancement of gender equality through constitutional litigation and consider a combination of variables which shape the diverging trajectories of the jurisdictions in this study. 

     The authors also embed the relevant constitutional and legal developments in their historical, political and social contexts. This deep contextual understanding of the relationship between sex, gender, sexuality and constitutionalism greatly enriches the analysis. The case studies reflect a variety of constitutional structures, institutional designs and contextual dynamics which may advance or impede developments with respect to sex, gender and sexuality. As a whole, the chapters further an understanding of the constitutional domain as a fruitful site for advancing gender equality and the rights of sexual and gender diverse people. 

     The jurisdictions covered represent all Asian sub-regions including: East Asia (Japan, Taiwan, Hong Kong and South Korea), South East Asia (Malaysia, Singapore, Philippines and Indonesia), and South Asia (India, Nepal, Pakistan and Sri Lanka). The introductory framework chapter situates these insights from the region within the broader global context of the evolution of gender constitutionalism.

Ziyue Zhou and Kwan Yuen Iu on Catalyst for Common Law Evolution: Experiment with ChatGPT and a Hypothetical Common Law Jurisdiction (Asian Journal of Law and Economics)

"Catalyst for Common Law Evolution: Experiment with ChatGPT and a Hypothetical Common Law Jurisdiction"
Kwan Yuen Iu and Ziyue Zhou (PhD candidate)
Asian Journal of Law and Economics
Published Online: 5 January 2024

Abstract: This paper aims to carry out empirical analysis of the viability of large language models (LLMs), specifically ChatGPT, in simulating the common law system and facilitating its evolutionary processes. Drawing on the Theory of Rules Evolution, it is understood that common law generates efficient rules by natural selection through constant litigation. Nonetheless, this evolutionary mechanism faces several hindrances. The process of change is typically slow and incremental. Courts often have to wait for a case that’s deemed ‘appropriate’ before they can change the law, leading to extended delays. Additionally, courts frequently struggle to make efficient decisions due to limited information. Other factors that decelerate the creation of efficient rules include judicial bias, unequal distribution of resources among litigating parties, and the diminishing presence of a competitive legal order. This study first assesses ChatGPT’s capability to embrace the essence of the common law system, namely the doctrine of stare decisis. We then assess its potential to overcome the hindrances in common law development and promote efficient rules. Through a series of meticulously designed hypothetical cases set in a virtual jurisdiction called the “Matrix Kingdom,” we observed that ChatGPT mimic the functions of a common law court by citing, following, and distinguishing its own precedents, but it accomplishes this with significantly fewer resources and in less time. This implies that humans can introduce hypothetical legal situations, enabling LLMs to replicate the natural selection process observed in the common law system but with a significantly accelerated pace. Given that LLMs are trained with diverse information sources, not just the factual contexts of cases, they could potentially lower the informational constraints in decision-making. As such, LLMs might significantly contribute to the evolutionary processes of common law development. However, it is important to remain cautious of certain limitations, such as the potential for AI Hallucination and inherent biases in LLMs, which require careful consideration and management.

HKU LAW Junior Academic Fellows: Call for Applications

HKU LAW Junior Academic Fellows: Call for Applications

HKU Faculty of Law has established a pre-doctoral fellowship, which will be awarded to law graduates in and from Hong Kong who have recently obtained a master degree in law from a leading international law school. Recipients of the fellowship will serve as a junior academic fellow in the Faculty of Law for up to one year with a competitive salary, during which they will be required to perform limited teaching duties. The fellows are expected to devote their time primarily to securing a place in a doctorate degree programme at a top global law school. Depending on whether they secure a scholarship elsewhere for their doctoral study, fellows may be awarded a scholarship under this fellowship programme that contributes towards the cost of their doctoral study. This is a highly competitive new initiative of the Faculty of Law designed to identify academic talent with strong potential for success in doctoral studies. No more than two successful candidates will be selected each year.

Interested candidates may send their CV and a personal statement to lawfac@hku.hk. Applications will be considered on a rolling basis.

Taorui Guan on Intellectual Property Legislation Holism in China (University of Pennsylvania Asian Law Review)

"Intellectual Property Legislation Holism in China"
Taorui Guan
University of Pennsylvania Asian Law Review, (vol. 18, (2023), pp. 81-140)

Published online: December 2023

Introduction: Over the past forty years, Western policy makers, commentators, and scholars have followed the development of China’s intellectual property system with interest. Many Western countries have exported intellectual products to China, and the protection that China’s intellectual property system provides affects these countries’ gains.  Some of them, particularly the United States, complain that China does not provide sufficient protection of intellectual property rights. When scholars study China’s intellectual property system, they tend to focus on whether the Chinese government has granted intellectual property rights to some particular kinds of intellectual products and whether it has effectively enforced these rights. Over the years, there have been studies claiming that the level of protection of intellectual property rights in China is inadequate, but more recent research has suggested that the opposite might be the case....read full article here.

James WC Lee on Anti-Corruption in a Party-State: Constitutional Implications of China's Supervisory Reform (Asian Journal of Comparative Law)

"Anti-Corruption in a Party-State: Constitutional Implications of China's Supervisory Reform"
James WC Lee (HKU Undergraduate Research Fellowship Programme)
Asian Journal of Comparative Law Volume 18 , Issue 3 , pp. 389 - 406
Published in December 2023

Abstract: The 2018 amendments to the People's Republic of China (PRC) Constitution saw the establishment of a system of supervisory commissions, which is a landmark development not only for anti-corruption, but also constitutional law in China. After providing an overview of the background and legal framework of the reform, this article discusses its constitutional implications from three perspectives. First, the reform alters the long-established state structure and creates interesting dynamics of institutional interactions among various branches of state structure. Second, it marks a reversal from the principle of ‘party-state separation’ and raises difficult issues of interface and transition between the party disciplinary system and the formal legal system. Finally, it legalises the previously extralegal practice of shuanggui (‘double specifications’) and affects the individual rights of those subject to investigation. The article concludes with some brief reflections on what this development indicates for the future of the rule of law in China, and highlights the potential for further research.

Taorui Guan on Investors’ Perspective on Intellectual Property Financing (Seton Hall Law Review)

"Investors’ Perspective on Intellectual Property Financing"
Taorui Guan
Seton Hall Law Review (vol. 54 (2023), pp. 439-503)
Published online: November 2023

Abstract: The intellectual property system is generally considered to be a legal system that promotes innovation. But the ways through which it achieves this goal are still not entirely clear. Conventional intellectual property theories tend to describe the system’s role in promoting innovation as providing creators with incentives to create and commercialize intellectual products, as well as disseminating knowledge to potential users. What is lacking in the literature is theoretical research that explains the role of the intellectual property system in encouraging investors to finance innovations. To fill this gap, this Article approaches the intellectual property system from the perspective of investors and examines its role in facilitating investors to finance innovative firms. This Article demonstrates that while investing in these firms, investors face the challenges of high risk of loss, information asymmetry, and inadequate channels. The intellectual property system helps investors handle these challenges by (1) securing their returns, (2) providing signals that assist in their decision-making, and (3) coordinating various parties to form relationships that facilitate investments. While the intellectual property system promotes innovation by facilitating financing, two inherent features of the system constrain its function: the uncertainty in intellectual property rights and the non-inclusiveness of disclosure. To reduce the constraints on the financing function of the intellectual property system, this Article informs policymakers by presenting several reform options. Regarding the theoretical aspect, it proposes that scholars, policymakers, and lawyers examine the intellectual property system from the perspectives of investors or other parties who are not directly involved in the creation and use of intellectual products. These perspectives not only allow scholars, policymakers, and lawyers to reflect on, and even critique, conventional intellectual property theories but also assist them in developing a more comprehensive understanding of the intellectual property system.

Simon Young on Hong Kong's Comparative Law (New Book Chapter)

"Hong Kong"
Simon Young
in Elgar Encyclopedia of Comparative Law 
Edward Elgar Publishing, pp.193–199
Published online: December 2023

I. Introduction

Hong Kong became a special administrative region of the People’s Republic of → China on 1 July 1997. Before then, it was a British colony for more than 150 years. The law of England had full force in the colony of Hong Kong except where it was inapplicable due to the local circumstances of Hong Kong or its inhabitants (Wesley-Smith [1994b] 90). In 1966, the position narrowed, in that the → common law and the rules of → equity of England were in force in Hong Kong provided they were suited to local circumstances and only Acts of Parliament specified in a schedule were applicable to Hong Kong (Wesley-Smith [1994b] 91). Thus, a modified form of English law suited to local circumstances applied in Hong Kong. Hong Kong’s Governor, by and with the advice and consent of the Legislative Council, made laws for the peace, order and good government of the colony (Wesley-Smith [1994a] 187). But colonial laws repugnant to an Act of Parliament applying to Hong Kong would be absolutely void and inoperative (A Solicitor v The Law Society of Hong Kong [2003]; Wesley-Smith [1994a] 195). The Judicial Committee of the Privy Council was Hong Kong’s final appellate court and its decisions in appeals from Hong Kong were binding on all Hong Kong courts according to the doctrine of precedent (A Solicitor v The Law Society of Hong Kong [2008]). However, judicial decisions of the House of Lords (→ United Kingdom Supreme Court) and the Privy Council in non-Hong Kong appeals were technically not binding though in practice highly persuasive. English legal traditions took root in the colonial era and endured after 1997. For example, barristers still wear gowns and wigs in proceedings in the higher courts (Ip [2019] 313).

In a bilateral agreement signed on 19 December 1984, generally known as the Sino-British Joint Declaration...

Albert Chen on China's Comparative Law (New Book Chapter)

"China"
Albert Chen
in Elgar Encyclopedia of Comparative Law 
Edward Elgar Publishing, pp.229–235
Published online: December 2023

I. Introductions

Chinese civilization reached a high level of development at the same time as that of ancient Greece and Rome. A legal tradition evolved in China that shaped the traditional legal systems in → Korea, → Japan and → Vietnam. A sophisticated philosophy of law known as Legalism emerged in the fourth century BCE which viewed law and criminal punishment as the primary means of social control and of State-building. An opposing school of thought at the time was Confucianism, which advocated instead governance by rulers practising moral virtues and by moral education of subjects. During the Warring States period (475-221 BCE), the Qin State adopted and practised Legalism, and eventually succeeded to unify China by conquering the other States. However, the Qin dynasty was short-lived; it was followed by the Han Dynasty (202 BCE-220 CE) which adopted Confucianism as the official ideology. The Chinese legal system in subsequent dynasties embodied a synthesis of Legalism and Confucianism. As stated in the comprehensive law code of the Tang Dynasty (618-907 CE), ‘virtue and morals are the foundation of government and education, while laws and punishments are the operative agencies of government and education. The former and the latter are necessary complements to each other’. At the time of the Song Dynasty (960-1276 CE), China operated one of the most advanced legal systems in the world. The last major code of the traditional Chinese legal system was that of the Qing Dynasty (1644- 1911 CE). Traditional Chinese codes contained elaborate provisions on → criminal law and the law of public administration. The principal source of civil and commercial law was customary law. Traditional China promoted mediation as a major means of dispute settlement; civil litigation (→ Civil Procedure) in the courts was considered a matter of last resort. There was no respectable profession of lawyers like that in ancient Rome. Lawmaking was the prerogative of the emperor; there were no Parliamentary institutions like those in mediaeval Europe. The challenge of the West since China’s defeat in the Opium War in 1842 prompted the Chinese elite to seek modernization for China. Efforts at legal modernization were made in the first decade of the twentieth century. Codes of law based on Western models were drafted, including codes of criminal law, civil law, commercial law, criminal procedure and civil procedure, and a new organic law of courts. Steps were taken towards constitutional reform for the purpose of establishing a constitutional monarchy like that in Meiji Japan. An ‘Imperial Constitutional Outline’ was promulgated in 1908, and thereafter provincial assemblies and a national assembly were elected. However, the Qing Empire was soon overthrown by the 1911 Revolution...

Ryan Whalen on Quantitative Methods in Comparative Law (New Book Chapter)

"Quantitative Methods in Comparative Law"
Ryan Whalen
in Elgar Encyclopedia of Comparative Law 
Edward Elgar Publishing, pp.277–283
Published online: December 2023

I. Overview and background

Quantitative comparative law includes any research that entails the collection and analysis of quantitative data with the aim of comparing legal systems or jurisdictions. As such it is a large, and growing, body of work that intersects not only with traditional comparative law research, but also that in many cognate disciplines such as economics or sociology. Although quantitative methods represent a relatively fast-growing area of comparative law, the adoption of quantitative methods to answer questions of comparative law has been somewhat slower than in other related areas of study (Adams and others [2017]; Spamann [2009]). 

     In some ways, the late arrival of quantitative methods to comparative law is surprising. After all, the interdisciplinary nature of comparative law exposes its scholars to areas of inquiry that other disciplines have long approached with quantitative methods. Comparative legal scholars overlap in many ways with criminologists, sociologists, economists, political scientists and others who often turn to quantitative methods as one set of tools within their disciplinary toolbox. Furthermore, quantifying things is one of the clearest ways to generate comparisons. Indeed, as children learn about the fundamentals of comparison they often do so in a quantitative fashion (e.g. One Fish, Two Fish, Red Fish, Blue Fish by Dr Seuss [1960]). This might lead one to think that comparativists should be especially prone to quantitative approaches to their research. However, for a variety of reasons – including the nature of graduate legal education and the fact that law is largely a professional discipline with texts at its foundations – adoption of quantitative methods in comparative law has been slower than in other related areas of study. Although it may have been somewhat slower to adopt quantitative methods than related fields of research, comparative legal scholarship has grown steadily more receptive of these approaches...

Shane Chalmers on Colonialism and Law (New Book Chapter)

"Colonialism and Law"
Shane Chalmers
in Elgar Encyclopedia of Comparative Law 
Edward Elgar Publishing, pp.282–291
Published online: December 2023

I. Origins

The emergence of ‘colonialism and law’ as a discrete field of study is typically dated to the 1980s (Merry [1991]; Comaroff [2001]; Merry [2003]; Mawani [2015]). Studies of law in colonial contexts were increasingly common from the early twentieth century, with anthropologists from Europe and the United States turning their attention to the adjudicative systems, laws and jurisprudences of societies in colonies from Africa to the Pacific and the Americas (Malinowski [1926]; Schapera [1938]; Evans-Pritchard [1937] and [1940]; Llewellyn and Hoebel [1941]; Gluckman [1955] and [1965]; Bohannan [1957]). One of the great debates of that time, between British-South African anthropologist Max Gluckman and US American anthropologist Paul Bohannan, over the (in)commensurability of concepts across legal traditions, still reverberates through the comparative, anthropological corners of the field (Goodale [2017] 15-16). Unlike the scholars of the 1980s, these early legal anthropologists were less interested in the colonial contexts that framed their studies than in ‘discovering what had been the shape of pre-colonial society’, the ‘true’ nature of non-European peoples (Moore [2001] 97). The field-defining change came with the publication of work by Francis Snyder (1981), Martin Chanock (1985) and Sally Falk Moore (1986). By approaching the laws of colonized societies as a matter of (colonial) history, their research began to show how these laws were affected by, even the creations of, colonization (Merry [2003] 572, 575-6). As Chanock [1985] 4 wrote in the introduction to his ground-breaking Law, Custom, and Social Order: The Colonial Experience in Malawi and Zambia, ‘the customary law, far from being a survival, was created’ by the ‘changes and conflicts’. Along with other seminal legal anthropologies of the period, by MB Hooker (1975), Peter Fitzpatrick (1980), John Comaroff and Simon Roberts (1981), Clifford Geertz (1983), Robert Gordon and Mervyn Meggitt (1985) and Joan Vincent (1989), this new body of scholarship opened a wide-ranging field of enquiry into the relationship between colonialism and law, which prepared the ground for much of the work of the following three decades...

Jedidiah J Kroncke on Law and Development (New Book Chapter)

"Law and Development"
Jedidiah J Kroncke
in Elgar Encyclopedia of Comparative Law 
Edward Elgar Publishing, pp.391–399
Published online: December 2023

I. Introduction

Studies that self-identify as within the field of ‘law and development’ posit that legal institutions and practices can be reformed to promote social development, traditionally through efforts funded by ‘developed’ countries in ‘developing’ countries. Yet, beyond this seemingly broad concern, perhaps the one defining feature of the term ‘law and development’ is the perpetually unresolved nature of any more decisive self-definition (Prado [2010]). Some of this definitional struggle admittedly echoes the traditional problematic of defining law (Nader [1965]). Is law restricted to the work of explicitly self-identified legal matter such as legislation, case decisions, treaties and the similarly explicitly self-identified actors who produce them such as lawyers, legislations and judges? Or is law a much broader array of social institutions, norms and practices that exist in and outside such formal categories? Of more recent vintage, parallel debates exist over the meaning of ‘development’, in particular, how ‘development’ is measured to gauge ‘progress’ and by whom (Gudynas [2016]). The once dominant association of development with aggregate national economic growth has given way to quite diverse and divergent views on the positive indicia of human life (Stanton [2007]). As such, the myriad actors who produce work under the rubric of ‘law and development’ invariably are prompted to triangulate a definition that makes some assumption about, or overt claim to focus on, the intersection of particular understandings of both ‘law’ and ‘development’ (Trebilcock and Prado [2021]). A simple review of the types of reforms pursued as part of ‘law and development’ work reveals its wide-ranging ambit. Some reforms emphasize technical aspects...