JANUARY - APRIL 2004

 

PARTICIPATING UNIVERSITIES

 

University of South Carolina Law School (USC)

University of Washington Law School Asian Law Center (UW)

University of Wisconsin Law School (UWisc)

Southwestern University Law School (Southwestern)

University of Melbourne Law Faculty Asian Law Centre (UniMelb)

 

TEACHING FACULTY

 

Prof. Mark Cammack (Southwestern, Islamic Law)

Prof. Donald C. Clarke (UW, China)

Prof. David Linnan (USC, Indonesia)

Dr. Penelope Nicholson (UniMelb, Vietnam)

Prof. John Ohnesorge (UWisc, Korea)

Prof. Veronica Taylor (UW, Japan/Korea)

Prof. Jane Winn (UW)

 

COVERAGE

 

This course looks at the overlap between public and economic law in developing Asia touching on the following countries:   Japan, China, Korea, Vietnam and Indonesia.  In doing that we examine differing views of the role of the State, differing economic views (Washington Consensus versus non-neoclassical views, etc.), hidden assumptions underlying the issue whether civil society approaches a la Eastern Europe work well in Asia (including cultural arguments, "soft" authoritarianism and now Islamic complications), old & new (economic) development models, structural conditionality and (legal) development models including international financial institution or donor roles, plus traditional comparative law issues.

 

MEETING TIMES & PLACES

 

The course is scheduled to meet simultaneously in three different time zones across North America on Monday afternoons.  Generally speaking, the class starts on the East Coast (USC) at 16:30, in Central Time (UWisc) at 15:30, and in Pacific Time (UW & Southwestern) at 13:30 on specified Mondays.    However, the course starts and ends at slightly different times due to differing term commencement dates at different schools.  The very first class will meet separately at UW on January 5, then because of USC schedule peculiarities its first class will meet on Thursday, January 8.  UW and USC will meet together via videoconferencing for the first time on January 12, then everyone has a holiday on January 19, with the first common class in which UW, USC and UWisc meet via videoconferencing taking place on January 26.  UW's quarter system classes will end before USC and UWiscs' semester system classes.  The course will meet at videoconferencing facilities at the different universities, and separately if required by local instructors.  If students miss a class for any reason (including because their university is not in session) they should review it afterwards in streaming video on the course website.  Similarly, we are posting contributions from speakers other than the instructors for students to review outside of class.  These will typically be speakers such as judges or law professors from the Asian country discussing their own law.  Our basic philosophy is to share instruction, but have each individual participating university run its own course.

 

TEXTS AND CONTACTS

 

There is no commercial text, and each instructor has prepared his or her own readings.  They will be made available on the course materials link and/or distributed via the course listserv or local as photocopied material.  Generally, we shall post shared instructional materials including problems and class powerpoints on the course website (http://www.lfip.org/laws827/index.htm).    We shall also be making a digital recording of teaching faculty presentations to put on the website in streaming form.  We hope to get them up within 7-14 days following the class meeting.

 

We have a course LISTSERV (laws827@listserv.sc.edu) to keep in touch generally, and for students at the different universities to carry on their own discussions directly.  You must join the listserv to fully participate in this class, since the teaching faculty will use it like a bulletin board for announcements about reading assignments, etc. while students and faculty should use it to ask questions and carry on discussions outside our videoconferenced classes.  For those of you unfamiliar with the LISTSERV concept, a LISTSERV is simply a system in which e-mail communications are sent to a single address and then distributed to all LISTSERV subscribers.  Please consult the LISTSERV information page at http://www.sc.edu/ars/listserv.html for general directions, and click on the course webpage class administration link for directions about how to subscribe.  We will ask teaching faculty to distribute via the LISTSERV hopefully before class, or at least  post after class under the  past classes link, their classroom powerpoint presentations as notes.  This course is part of a broader experiment to institutionalize shared and distance education courses between foreign and US universities, so comments on the experiment are welcome as things develop.

 

COURSE CONCEPT

 

This course is an attempt to introduce students to Asian and comparative law at a sophisticated level in pursuing the overlap in different Asian countries' law between ideas about the state, economy and law.  It is also an experiment in law schools sharing courses consortium-style using newer instructional technology (videoconferencing and websites).  We hope students will appreciate the richer texture of an advanced course taught by experts at the country level, while we are eager to expose students to a variety of instructors and, hopefully, their student colleagues at other universities.  Videoconferenced courses have been running overseas between US and Indonesian law schools for four years via the Law & Finance Institutional Partnership (http://www.lfip.org), but this is our first domestic consortium venture.

 

We leave the final instructional choices in the hands of individual teachers, but subject to all the usual caveats offer the following as a general roadmap so that students understand where we are heading in the course.  It will be organized as follows:

 

INTRODUCTORY SESSIONS

 

Session 1 - Veronica Taylor, UW

 

Coverage of issues about what are the differing approaches to comparative law (old and new), the traditional take on what it means to be a civil law versus common law country, current views of legal development generally, what exactly does it mean to talk about the rule of law, and then segue into issues about what may be special about Asian legal development.

 

Session 2 - David Linnan, USC

 

This session should cover traditional Western views of the State and their expression in legal doctrine, meaning in practical terms an introduction to Continental public law doctrine (basically, traditional views of the Rechtstaat and their expression in Continental administrative law first, and only much later in constitutions) plus probably British rule of law ideas (which are not the same as US constitutional ideas, but both of which lack the special tribunals administrative law emphasis of Continental law).  We shall use German law as the background for the Continental material, since countries like Korea employed it as a formal model.  The point is to give background in terms of how assumptions may differ at the source end of legal borrowings.

 

COUNTRY SESSIONS

 

Session 3  -   Korea/John Ohnesorge, UWisc

 

This session should basically be the introduction to Korean law/Korean legal system in a traditional, straightforward manner to provide students with a general country road map plus enough legal sociology so that students understand that the legal professions are structured differently, litigation to settle all disputes (what US students believe) is not the model everywhere, etc.  This covers a bit of imported law history with German law as a model for modernization as segue from the previous session.

 

Sessions 4 & 5  -  Korea/John Ohnesorge, UWisc

 

We look at Korea and Korean law as model of the administered state for economic development purposes.  We think this involves looking at administrative law/public law in the context of industrial policy and the export-oriented development model, but do not want to get too deep into comparative economics at this stage.

 

Session 6  -  Korea & Japan/Veronica Taylor, UW

 

This session is essentially planned as a transition, with Prof. Taylor doing some public law at the constitutional level in Korea and Japan.  Prof. Taylor will look at the Korean constitutional court as one way legal change may operate.  The other item to be covered is the odd mixed Japanese constitution, in part to demonstrate that after things like US occupation, despite Japan originally having patterned its development on German law, it is fully mixed in a public law sense.

 

Session 7  -  Indonesia/David Linnan, USC

 

This session should basically be the introduction to Indonesian law/Indonesian legal system in a traditional, straightforward manner to provide students with a general country road map plus enough legal sociology so that students understand that the legal professions are structured differently, legal pluralism is rampant in Indonesia, the ideology that law should incorporate particularly Indonesian aspects, Indonesia is now a mixed civil & common law system, etc.  We note the apparent constitutional anchor of non-neoclassical economics foreshadowing review of economics in the form of Washington Consensus, etc. to understand recent Indonesian economic law.

 

Session 8  -  Indonesia/David Linnan, USC

 

We look at Indonesia as a case study, since here is where we would like to look at legal development plus IFI legal development implementing the Washington Consensus (conditionality). The reason for presenting the source of the legal advice is that it should segue into a discussion of areas like legal issues surrounding privatization, capital and banking markets, and legal development generally.

 

Session 9  -   Vietnam/Pip Nicholson, UniMelb

 

We would like to use Vietnam as a model of the peculiar problem of traditional Socialist states in Asia (Vietnam, China & North Korea) and how they adapt to legal development.  This is presumably a case of potentially antagonistic political and legal systems, to the extent party control is seemingly inconsistent with Western ideas about the rule of law, but they have embraced economic ideals not unlike the rest of Asia since 1990.  Vietnam has had at least two prior formative legal influences, namely as a traditional civil law jurisdiction as French colony, then as a Socialist jurisdiction borrowing heavily from the former Soviet Union, and now however the Vietnamese are trying to change their law for economic development purposes (raising the problem of what is the role of the State if they start to tend towards market-oriented development, alongside the role of the Party as leadership of the State).  The other influence claimed to exist by at least some Vietnamese scholars is Confucianism, but that may simply be a claim about special law indigenous to Vietnam.  We go with only one live session on Vietnam, since we have on the course website streaming two presentations of papers filmed at the June 12-13, 2003 conference at the University of Melbourne entitled Law and Governance:  Socialist Transforming Vietnam.

 

Sessions 10 & 11  -   Indonesia & Islamic Law/Mark Cammack, Southwestern

 

We would like to segue into a specific treatment of Islamic law in the Southeast Asian context through Prof. Cammack continuing with Indonesia.  We shall look at Indonesia to distinguish between the theoretical official Islamic state and a secular state that tries to accommodate Islamic law.  On the Islamic side, Session 10 will be his equivalent of an introductory country session introducing the concept of Islamic law, including non-western Islamic ideas of the State as a foil to Western ideas presented in Session 2.  Thereafter, Prof. Cammack wants to look at family law as an example of how the state engages in social engineering in pursuit of Islamic law.

 

Session 12 & 13  -  China/SOEs/Don Clarke, UW

 

The first session for China will be an introduction to the Chinese legal system.  For the second session, we think China allows a quick contrast with Vietnam on the Socialist side, but also with Indonesian views of SOEs to the extent it is more possible to talk about corporate governance, etc. (since Vietnam still does not really have functioning capital markets).  Since SOEs traditionally are the State on the economic side, beyond employment, etc. their treatment raises a variety of key questions in any supposed transition to a market-oriented economy.

 

REVIEW & WRAP-UP SESSION

 

Session 14  -  Wrap-Up/Instructor Roundtable

 

We shall be doing comparisons as we go along in country treatments, but the wrap-up session reprises the questions raised in Sessions 1 & 2, plus additional questions that might have come up in conjunction with Islamic and changing Socialist ideas of the State.  We shall replay the themes and repeat the question what the individual country studies tell us about economics, legal borrowing and change, the rule of law, governance plus differing views of the State.

 

ACCESSMENT

 

Grading will be organized locally at each participating university.  For USC students this is a graduation writing requirement seminar, so that you must work out your papers individually with Prof. Linnan.  Beyond that, we will encourage student interchange at the different universities through organized follow-up discussions via the listserv and other means to be determined by individual instructors.

 

 

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