I’ve just posted the above-titled paper to SSRN. Here’s the abstract:
How should American courts understand China’s legal system? How do they understand it, and are they doing a good job? These questions have become important as economic and social ties between China and the United States have mushroomed since China’s days of Maoist isolation. The answers have implications not just for China-related cases, but for way U.S. courts treat authoritarian and illiberal legal systems more generally.
This Article presents the first attempt to answer these questions empirically through an intensive study of all cases in which parties either sought dismissal to China on forum non conveniens grounds or sought enforcement of a Chinese judgment. Both types of cases require courts to assess China’s legal system. Because it attempts both to collect all relevant cases and to read all the relevant underlying party filings and interlocutory as well as final judgments, this Article presents the most complete picture to date of what U.S. courts and litigation parties are actually doing—certainly in China-related cases, and likely to some degree in other transnational cases.
The Article finds that by and large courts do not get good information and often reach questionable conclusions. It finds that the adversarial system is not functioning well, with the strength of party arguments bearing no correlation to outcomes. Moreover, the bad results tend to get baked into the system through their citation in subsequent cases. This has serious implications for the delivery of justice. The Article concludes by offering some paths to a solution.
A shorter version of this Article is forthcoming in the University of Pennsylvania Journal of International Law.