Our News & Stories

• Jesse Krohn, L'11
• Stephanie Brockman, L'11

June 20-21, 2011
Beijing, PRC
Summit Statement

From June 20 – 21, 2011, nine American and ten Chinese Law School Deans convened a summit to discuss legal education, the role of law schools in society and in building the rule of law, and modes of collaboration among law schools to support academic and institutional goals.  The discussion was wide-ranging and both sides came away with a better understanding of each other’s goals and constraints with regard to important aspects of legal education in their respective countries.

The purpose of the summit was to begin a dialogue and in that spirit both sides herewith set forward the following statement: 

• We recognize and support the rule of law.
• We agree on the importance of promoting the integrity of the legal profession.
• Legal education is important to the functioning of society and is a vital means to design and implement the above principles.
• We recognize the important contribution of past Sino-US cooperation on legal education and reform and the value in supporting future cooperation. 

Deans on both sides agree to discuss mechanisms for future cooperation by establishing a joint committee to discuss and develop ways to move forward.

Summit between nine U.S and 10 China law deans produces statement supporting the need for expanded cooperation and ensuring the integrity of the legal process

Penn Law Dean Michael Fitts and State Councilor Liu Yandong

Following an unprecedented summit on June 20-21 in Beijing between deans from leading law schools in the U.S. and China, participants in the first Sino-U.S. Deans Summit issued a joint statement outlining shared principles, including recognition of and support for the rule of law, and the objective of establishing ongoing two-way collaboration between top U.S. and China law schools. 

The Summit focused on the present state and future needs of legal education in both countries, the role of law schools in society and in building the rule of law, and modes of collaboration among law schools to support academic and institutional goals. The deans agreed to form a working group with five deans from each side to develop new programs that will foster multilateral exchanges between law schools, and to explore new initiatives that focus on substantive areas of law such as public health, the environment, and leadership.

The U.S. deans were organized by Michael Fitts, dean of the University of Pennsylvania Law School. In addition to the Summit sessions the nine U.S. participants and their Chinese counterparts met for over an hour with State Councilor Liu Yandong, the senior China government official responsible for education and Secretary of State Hillary Clinton’s counterpart for the Sino-US People-to-People exchange. 

The Summit was convened by Fitts at the suggestion of then-U.S. ambassador to China Jon Huntsman, who saw it as an important forum for Chinese and American leaders in law and higher education to come together on the basis of shared values and interests.

The joint statement issued by the American and Chinese law deans noted that they:

• recognize and support the rule of law;
• agree on the importance of promoting the integrity of the legal profession in the U.S. and China;
• agree to discuss mechanisms for future cooperation by establishing a joint committee to discuss and develop ways to move forward.

“This was an incredibly valuable set of meetings,” said Fitts. “All of our country’s law schools have engaged in various efforts at globalization in one form or another with many countries, including China, but the size and speed of economic and legal change in China of late tests all of our experiences and thinking.   The Summit allowed us to focus on where the legal relationships with, and in, China are likely to evolve for all of our institutions over the near and far term.”

“The Summit was an important first step,” stated Wang Zhenmin, dean of Tsinghua Law School. “We look forward to building on this foundation to strengthen legal education and exchange between the United States and China as well as the rule of law and the legal profession.”

Chinese media reports highlighted the Summit’s contribution to strengthening ties between the United States and China and the importance of training legal personnel and fostering other legal cooperation projects.

During the summit the deans from China focused on ways in which legal education is able to confer both substantive knowledge of law and its implementation, as well as how it fosters analytical thinking that lawyers apply to a range of social and economic questions. They noted that China has moved to a new stage in its legal development, focused on implementation and realizing law’s meaning in society.  More than once, the Chinese side inquired about the high number of American public and private sector leaders who started out in law school.

The American deans explored the rationale for internationalization and expressed appreciation of the significance that robust global linkages have played in the rapid scale-up of law schools in China. A number of participants agreed that internationalization will be a game-changer for law schools, requiring American schools to understand law as a sociological and dynamic force as much across and beyond borders as well as within them.

Legal development in China has been robust over the past thirty years, but there remain serious concerns about insufficient protection of core civil and political rights, due process and judicial independence.  As they departed China, the US Summit participants welcomed the news that high-profile activist and artist, Ai Weiwei, was released from detention and that Hu Jia was able to return home to his wife several days later.

The U.S. law deans also met with U.S. embassy staff as well as Tung Chee Hwa, the former Chief Executive of the Hong Kong, and Gao Xiqing, the head of the China Investment Corporation (the PRC’s sovereign wealth fund).

List of China deans:

• Fu Zitang, President, Southwest University of Political Science and Law
• Ji Weidong, Shanghai Jiaotong University KoGuan Law School
• Han Dayuan, Renmin University of China Law School
• Liu Ningyuan, East China University of Political Science and Law
• Wang Zhenmin, Tsinghua Law School
• Xiao Yongping, Wuhan University Law School
• Xu Chongli, Xiamen University Law School
• Xue Gangling, Dean of Law School of Chinese University of Political Science and Law
• Yao Jianzong, Jilin University Law School
• Zhang Shouwen, Peking University Law School

List of U.S. deans:

• Evan Caminker, University of Michigan Law School
• Chris Edley, University of California, Berkeley, School of Law
• JoAnne Epps Temple University Law School
• Michael Fitts, University of Pennsylvania Law School
• Larry Kramer, Stanford University Law School
• Paul Mahoney, University of Virginia Law School
• Robert Post, Yale Law School
• Michael Schill, University of Chicago Law School
• William Treanor, Georgetown University Law Center

Tiffany Southerland L'11, former president of the Penn Law Black Law Students Association, speaks about the professional and practical benefits of participating in Penn Law student groups.

Stephen B. Burbank David Berger Professor for the Administration of Justice

In July, Stephen Burbank, the David Berger Professor for the Administration of Justice at Penn Law, will be a featured speaker at the Fourteenth World Congress of the International Association of Procedural Law in Heidelberg, Germany, where he will present a paper on private enforcement of statutory and administrative law, co-authored with Sean Farhang of the University of California, Berkeley, and Herbert Kritzer of the University of Minnesota.

Burbank, who serves as a general reporter for one of the main sessions in Heidelberg, spoke with the Law School’s Office of Communications about his research, differences in the use of private enforcement in the U.S. and other countries, and how procedure is used by Congress and the Supreme Court to exercise power.

Penn Law (PL):  What is the focus of your paper, and how did it come about?

Stephen Burbank (SB):  I was asked to serve as a general reporter by the IAPL conference organizers. I decided that the subject was so complex, and so clearly amenable to interdisciplinary and empirical perspectives, that I needed co-authors. Both of my co-authors are political scientists and empiricists.  It is interesting that the IAPL, which is dominated by scholars from countries that traditionally have avoided private enforcement, would devote a major session to that topic. The organizers made it clear to me that their real interest is finding out more about private enforcement in the United States.

It took a while for me to figure out what they meant by private enforcement – there is considerable fuzziness and disagreement among legal systems as to what private enforcement is. What the organizers were referring to is the so-called private attorney general rationale. In most countries from the civil law tradition, which includes most of Europe, the whole notion of private enforcement is an oxymoron because they conceive a much more formal, strict divide between what is public and what is private, and what is suitable for public regulatory activity and what is suitable for private litigation. 

In America, we don’t have that strict view of the public-private dichotomy. In the beginning of our paper, we devote considerable attention to this question of definition.  We conclude that it probably suffices to think about private enforcement of statutory and administrative law as a phenomenon that results when a legislature determines that there is an unremedied, systemic problem, and that incentives should be provided for privately- initiated litigation in place of or in addition to litigation brought by the executive branch or administrative proceedings. 

PL:  Why is this question of definition so important from a comparative perspective?

SB:  If a legislature does not define private enforcement regimes broadly, chances are that it will end up with what one commentator rather vividly described as “beautiful cars without engines.” That was a description of countries, including Italy, that have turned to something like our class action but without dealing with the problem of cost shifting. In most of the rest of the world, the loser in litigation has to pay some or all of the winner’s attorneys’ fees – the so-called “English Rule.”  That is a fairly robust deterrent of frivolous litigation, but it is also a fairly robust deterrent of litigation by those who are risk averse, who do not have the capacity to pay the other side’s attorneys’ fees if they lose. Class actions will not get off the ground unless the English Rule is relaxed (or even more radical changes in litigation finance are instituted).  

A legislature that is sincerely interested in addressing unremedied systemic problems in whole or part through private enforcement needs to consider all of the rules that could affect the willingness and ability of private parties actually to enforce the law, including the remedies that are available.

Note the emphasis on institutional choice. One of my co-authors, Sean Farhang, has done important work on private enforcement at the federal level. Searching for good indicators of congressional interest in private enforcement, he focused, very creatively, on two types of provisions. First are statutory provisions that asymmetrically authorize the award of fees to a prevailing plaintiff.  The normal rule in this country is that each side bears its own attorneys’ fees.  We use the “American Rule” as opposed to the “English Rule” that I previously mentioned and that is used almost everywhere else. The American Rule can be changed by statute, however, and Farhang thought that such provisions would be one very good indication of congressional interest in private enforcement. Second are statutory provisions authorizing multiple damages - like the Sherman Antitrust Act, which provides for treble damages - or statutory damages, which are damages that a prevailing plaintiff can receive without proof of actual damages.

PL:  And what methodology was used?

SB:  Farhang looked at all federal statutes from 1887 to 2004 that have either or both of those two types of provisions, creating a database of private enforcement regimes. He was interested in testing empirically the hypothesis that, just as Congress may seek to mitigate administrative subversion of statutory norms by writing more specific statutes, so Congress - or a legislature more generally - may want to use private enforcement, either solely or in combination with public enforcement, as a hedge against subversion of legislative preferences by an administrative agency controlled by an ideologically distant executive.

His analyses support that hypothesis, indicating that resort to these techniques of statutory fee shifting and/or multiple damages is very strongly associated with periods of divided government where one party controls Congress and the other controls the executive branch.  In addition, he did some really interesting qualitative social science focusing on the Civil Rights Act of 1964 (and associated legislation in 1976 and 1991) that also supports the hypothesis.

PL:  How else did you and your co-authors approach this topic?

SB:  Having defined the phenomenon of interest, we look to the general legal landscape that may affect both a legislative choice to use or not use private enforcement and the efficacy of a private enforcement regime. This includes the general rules on procedural steps like pleading. Pleading rules determine how specific a plaintiff has to be in order to remain in court and have access to discovery. It so happens that the U.S. Supreme Court has very recently - without admitting that it was doing it - judicially amended the rules on pleading in a way I believe will make it much harder for some plaintiffs to survive a motion to dismiss their complaints -- to get to the discovery phase where they have the opportunity to secure the information necessary to establish the defendant’s liability. That should be of general concern; from the perspective of private enforcement, the Court’s decisions make it harder for people to do what Congress wanted them to be able to do.

The rules in question went into effect in 1938. It is reasonable to assume that after a certain point -- say 1957, when the U.S. Supreme Court resoundingly approved of the system of so-called notice pleading -- every Congress that included private enforcement incentives in a statute was relying on these rules. 

Thus, it is a very broad subject because, properly viewed, it requires attention not just to the specific provisions in a statute that are indicators of the legislature’s interest in private enforcement, but to many other rules. As my comments indicate, these “other rules” include both those that are part of the general procedural landscape, like pleading, and those that are much harder to categorize, like cost shifting. Both types can determine whether private enforcement is effective. 

In the paper we provide these details about the American general landscape and some comparative information from England and Wales, Australia, and Canada. We also provide two case studies,  one dealing with federal anti-discrimination law, and the other with unfair and deceptive practices, which are largely governed by state law. Although we were not able to gain much comparative traction on private enforcement between the United States and, say, England and Wales, we do think that there are some very interesting possibilities with respect to the European Union. 

Stephen Burbank in the classroom

PL:  In what respect?

SB:  Most countries in Europe have parliamentary systems that in theory at least are immune to the institutional dynamics that are associated with private enforcement in the United States - at least at the federal level. Yet, while doing the research for this paper, it became clear that in some areas like consumer protection, antitrust, and securities much of the push for private enforcement in Europe comes about either directly or indirectly as a result of initiatives by the European Union. As a lawmaking body the EU may find private enforcement very attractive because of concerns about defection by member states. In other words, the EU may replicate the separation of powers dynamic. The EU has some direct lawmaking capacity, and it has the power to influence developments even in areas where member states retain lawmaking capacity. If a member state was not particularly anxious to protect consumers, it could subvert an EU directive to do so. 

But if you provide for private enforcement by individual consumers, you can get around that sort of defection. Thus, there is a dynamic of dispersed power given the structure of the EU, both horizontally and vertically, that may be something like what we see in our federal government. And so the EU may provide an institutional explanation for some of the interest that we’re seeing in private enforcement.

In addition, let’s face it, private enforcement is perceived to be less expensive. For France, for example, to abide by an EU directive to better protect consumers the old-fashioned way would portend the expenditure of a lot of resources on central administrative enforcement. So, it becomes very attractive, at least in the short term and on a narrow definition of costs, to use private enforcement, particularly in countries that rely on costs paid by private parties to fund their courts.

Historically in the U.S., one reason why Republicans have been willing to go along with private enforcement is that it avoids the problem of big government. One of the sociological truths about Americans is that we don’t like bureaucratic authority and we don’t like taxes. If you sincerely want effective administrative enforcement of federal law, you will need bigger administrative agencies funded, presumably, by tax dollars.

PL:  What are some of the other key findings from the paper?

SB:  Farhang’s previous work noted the puzzle, from an institutional perspective, of the judiciary’s role in private enforcement. Providing incentives for privately-initiated enforcement could be deemed another way of avoiding subversion – but only if Congress is confident about the politics of the judiciary. For example, in the early 1970s, a Democratic member of Congress was likely pleased to have judges appointed by Democratic presidents presiding over Title VII litigation, rather than having it enforced by the Equal Employment Opportunity Commission (EEOC), which was under the thumb of President Nixon.

But what if the complexion of the judiciary changes, as of course it has in this country since the 1970s, becoming more conservative? The thought might be, well, at least you have some protection because, after all, this is not judicial enforcement. In the paper we argue those who have described the phenomenon as judicial enforcement are making a mistake, because the incentives are given to private parties and their lawyers.  It imparts to the system an autopilot type of quality that provides some protection against subversion by the judiciary. 

That said, in 1991 a Democratic Congress finally became so upset with the way in which the federal judiciary was interpreting Title VII and related legislation that they enacted provisions that overruled numerous U.S. Supreme Court decisions. Previously, private litigation under Title VII had declined, and complaints to the EEOC had declined. How did Congress deal with it? By increasing the amount of money that a plaintiff could recover. Prior to 1991, you could not recover compensatory, let alone punitive, damages if you were the victim of a Title VII violation; you could only recover back pay, maybe even some front pay. Congress changed that, and guess what? Complaints and lawsuits increased. Thus, there are a variety of ways you can promote private enforcement. You can use fee shifting or raise the ante in order to provide incentives to private lawyers.

This underscores the potential of the judiciary to subvert congressional preferences through other means. That is what I think is occurring in the Court’s recent pleading decisions. It is a subtle but effective way of regulating access to courts by a judiciary that is ideologically distant from the enacting Congress. It should not come as a surprise if these decisions have a disproportionately adverse impact on civil rights litigation, and in particular, employment discrimination Litigation.

Q: What should people take away from this? 

A: This research again confirms my view that procedure is power. People who have been selling the notion that procedure is technical, that it’s “adjective law,” have been doing it largely for the purpose of ensuring that they retain power.  And for a long time they were very effective at that.

Now, Congress is in on the dirty little secret that procedure is power, which is why so often in the last 20 years we have seen major reforms accomplished not through changes in the substantive law, but through changes in procedure. When Congress could not agree, for example, on what the mental state (scienter) required for securities fraud should be - whether knowledge or recklessness - it did not make any difference. In the Private Securities Litigation Reform Act they tightened up the pleading requirements. The statute requires greater factual specificity, and it requires that the pleading raise a strong inference of whatever mental state is required. Procedure provided Congress with a way to deal with the problem of the ambiguity that resulted from inability to compromise on the substantive standard.

But the Supreme Court has known the power of procedure for a long time. The Court knew, and the Chief Justice in particular knew, that there was little chance that the Federal Rules on pleading could be amended through the process that is supposed to be used. The Enabling Act process requires, ultimately, an opportunity for Congress to review the policy choices being made, and if appropriate, to block them from becoming effective through legislation. The Court has avoided that by pretending to interpret the Rules. One of the costs of the Court’s lawlessness, I believe, is the effectiveness of private enforcement in this country.

Reposted with permission from the Oxford Law website.

Edward B. Rock L'83, Saul A. Fox Distinguished Professor of Business Law

“Judging Corporate Law” was the subject of a Law and Finance roundtable held at St Hilda’s College in June, hosted by Oxford University’s Faculty of Law and jointly organized with the University of Pennsylvania Law School.

The roundtable featured an extraordinary line-up of judges from the Delaware and English courts, including Mummery LJ (Court of Appeal), Steele CJ (Delaware Supreme Court), Lewison J (Chancery Division, High Court), Jacobs J (Delaware Supreme Court), Briggs J (Chancery Division, High Court), Chancellor Chandler (Delaware Court of Chancery), Vice Chancellor Laster (Delaware Court of Chancery), Sales J (Chancery Division, High Court), David Richards J (Chancery Division, High Court; Vice-Chancellor of the County Palatine), and Stephen Lamb (former Vice Chancellor of the Delaware Court of Chancery), together with Charles Crawshay (Deputy Director General, Takeover Panel).

The purpose of the roundtable was to consider and compare the treatment of core business/corporate law issues in the Delaware courts and the English courts. With this purpose in mind, the roundtable was divided into five sessions, two relating to aspects of directors’ duty of care, two relating to aspects of directors’ duty of loyalty, and one relating to takeover issues. For each session, two significant cases were chosen for discussion, one handed down by a Delaware court, the other by an English court. Two judges were responsible for each session: one drawn from the Delaware bench, the other from the English bench (and, for the takeovers session, from the UK Takeover Panel). The English judge in each session was asked to focus on the Delaware case, and the Delaware judge on the English case.

Each judicial discussant was asked to consider one question: if the case had been litigated in their home jurisdiction, how would it have been argued and decided? This approach focused the discussion, encouraging participants to identify the specific rules of law and procedure that would likely govern the treatment of similar facts in their home jurisdiction.

This, in turn, encouraged participants to consider not only formal differences between the two jurisdictions (such as, for example, the classification of directors’ duties, or the treatment of contractual arrangements to exclude liability for breach of duty) but also to consider the extent to which these differences were in practice likely to produce different results: that is, participants were invited to move beyond formal differences to identify functionally equivalent rules. 

This yielded a unique and extraordinarily insightful set of contributions. Other participants, including senior practitioners and academics from both the UK and US (among them, Charles Randell of Slaughter and May, Professor Ronald Gilson of Columbia Law School, Professor Edward Rock of Penn Law, Professor John Armour of the Oxford Law Faculty, and Professor David Kershaw of the LSE Department of Law), also made significant contributions to the debate. The overall result was a lively and productive exchange of ideas between the two jurisdictions.

A production of the Penn Program on Documentaries & the Law, We Didn't Come Here to Fight The Struggle for a Safe Education offers a complex and balanced account of the recent violence against Asian immigrant students at South Philadelphia High School and the ensuing civil rights case brought by the U.S. Department of Justice against the School District. It explores the failures of the school's authorities in dealing with the diverse student body, the support the immigrant students received from some of their black classmates, the background social and economic circumstances that generated the conflict, and the efforts that have been made to improve the climate at Southern, particularly by the new principal Otis Hackney.

This documentary was filmed and directed by members of the Visual Legal Advocacy Seminar, taught by Professor Regina Austin L’73. A central component of the Penn Program on Documentaries and the Law, Austin’s seminar integrates law-genre documentaries into the legal academy by enabling students to produce documentary films on issues of social justice.

Film Credits
"We Didn't Come Here to Fight”: The Struggle for a Safe Education (Running time 0:25)
Produced, Written, Directed, and Shot by Rebekah Lee L'11, Jane Zenzi Li L'11, Jade Palomino L'11, and Angela Redai L'11
Executive Editor: Irit Reinheimer
Narrated by Pierre Gooding L'11
Additional Narration (December 3rd Violence Montage) by Ryan Crosner L'11, Rebekah Lee L'11, Jane Zenzi Li L'11, Joel Lin L'11, and John Woo L'11
Still Photography by Harvey Finkle

In a video Q&A Serena Mayeri, Professor of Law at the University of Pennsylvania Law School, discusses her new book Reasoning from Race: Feminism, Law, and the Civil Rights Revolution.

Serena Mayeri: The book is called Reasoning from Race, and what I mean by that is a number of different strategies that feminists used during the 1960s and ‘70s to make the case that sex discrimination was a problem that was worthy of attention.

The most fun part of researching and writing this book was the opportunity to have access to the papers of various individuals and groups who were involved in the litigation and legislative campaigns and other advocacy efforts that I’m talking about. I looked at the papers of individuals like Pauli Murray, who is a central figure in my story - she was an African American lawyer who pioneered these race-sex analogies as the reasoning for the race strategy in the early ‘60s up through the early ’70s, which was then picked up by people like Ruth Bader Ginsburg, now a U.S. Supreme Court Justice, who litigated a lot of the sex equality cases in the 1970s.

One case that I found particularly fascinating in my research was a challenge by a young African American woman, Katie Mae Andrews, to a policy in New Orleans where the schools districts banned unwed mothers from teaching school.  Miss Andrews wanted to be a teacher and she went to a local civil rights attorney, who then collaborated with feminists at the Center for Constitutional Rights in New York. They made arguments to the federal court in Mississippi, and later took the case to the U.S. Supreme Court. 

But when it got there, the very rich intersections between race and sex and sexuality and employment and reproductive freedom were bleached out of the case. And I use this case as an example to show how, in many instances, African American women plaintiffs brought really pivotal sex equality cases to the courts, only to find that by the time they reached the Supreme Court, the really compelling aspects of their case were obscured. 

One of the things I’m trying to do in the book is to dispel what I think is the myth about 1970s feminist legal advocacy - that feminists were very focused on the concerns of white middle class women, not concerned with racial justice or with economic justice, or with the connections between reproductive freedom and economic and racial equality.

What came out of the Supreme Court was not what feminists put in, but was something much more limited – a much less capacious vision of equality than what feminists were advancing.  And I hope that my book, along a number of different dimensions, can give a richer picture of what feminists did present to the court, much of which was rejected, but is still, I think, really worthy of being exhumed.

This transcript was edited for length.