Judging China: How US Courts Look at the Chinese Legal System

Donald Clarke, LAPA Fellow; George Washington University School of Law

Fri, 02/26/2021 - 10:30am
via Zoom - RSVP requested
Event Category: 
By Invitation Only

LAPA’s seminar format assumes that seminar participants have familiarized themselves with the paper in advance. The commentator opens the session by summarizing the main themes in the paper and presenting some topics for discussion. The author then has the right of first response before we open to the floor for questions. 

Synopsis: "This paper looks at how U.S. courts assess the quality of the Chinese legal system, focusing on two specific contexts: cases in which plaintiffs seek enforcement of Chinese judgments, and cases in which defendants seek dismissal to China on forum non conveniens grounds. In each case, the court must be satisfied that the Chinese legal system offers fundamentally fair procedures. Historically, courts have developed a set of doctrines and practices for assessing foreign legal systems, but typically those have been the legal systems of liberal democratic countries. How are courts making that assessment in the case of China? What information are they using? Are they getting it right? This paper tries to answer these questions by examining a hand-collected dataset of all such cases in the post-Mao era."

Donald Clarke
2020-2021 LAPA Fellow
George Washington University School of Law

Donald Clarke is a specialist in the law of the People’s Republic of China, focusing particularly on corporate governance, Chinese legal institutions, and the legal issues presented by China’s economic reforms. In addition to his academic work, he founded and maintains Chinalaw, the leading internet listserv on Chinese law, writes The China Collection blog, and is a co-editor of Asian Law Abstracts on the Social Science Research Network. He has also served as an expert witness on Chinese law matters in a number of legal cases, and has advised organizations such as the Asian Development Bank, the Agency for International Development, the Securities and Exchange Commission, the Public Company Accounting and Oversight Board, and the Department of Justice. He is a member of the Council on Foreign Relations. Prior to his current position, he was on the faculty of the School of Oriental & African Studies of the University of London and the University of Washington School of Law.  He has been a visiting professor at New York University Law School, UCLA School of Law, and Duke Law School. Professor Clarke holds an A.B. degree from Princeton University, an M.Sc. degree from the School of Oriental & African Studies of the University of London, and a J.D. degree from Harvard. While at LAPA, he will work on a book project examining the interaction between the Chinese and American legal systems, and the ways in which the U.S. legal system does and should treat the outputs of the Chinese legal system.


Martin Flaherty
Fordham Law School

Martin S. Flaherty is Leitner Family Professor of Law and Founding Co-Director of the Leitner Center for International Law and Justice at Fordham Law School.   He is also a Visiting Professor at the Princeton School of Public and International Affairs, where he was Fellow in the Program in Law and Public Affairs and a Visiting Professor at the New School in New York. Professor Flaherty has taught at China University of Political Science and Law and the National Judges College in Beijing, and co-founded the Rule of Law in Asia Program at the Leitner Center as well as the Committee to Support Chinese Lawyers, an independent NGO on which he serves as Vice Char: http://www.csclawyers.org. He has also taught at Sungkyunkwan University in Seoul, Queen’s University Belfast, Columbia Law School, Cardozo School of Law, St. John's University School of Law, the New School, and Barnard College. Flaherty's publications focus upon constitutional law and history, foreign affairs, and international human rights and appear in such journals as the Columbia Law Review, the Yale Law Journal, the Michigan Law Review, the University of Chicago Law ReviewConstitutional Commentary, the Harvard Journal of Law and Policy, the Harvard Human Rights Journal, and Ethics & International Affairs.   Selected publications include: “Executive Power Essentialism and Foreign Affairs” [with Curtis Bradley], Michigan Law Review; “The Most Dangerous Branch,” Yale Law Journal; and “History ‘Lite’ in Modern American Constitutionalism,” Columbia Law Review. He has appeared or been quoted in The New York TimesThe New YorkerThe Boston Globe, The Daily NewsNewsday, the PBS Newshour, CNN, MSNBC, NPR, and Fox. He is the author of the Restoring the Global Judiciary: Why the Supreme Court Should Rule in Foreign Affairs (Princeton University Press, 2019).