Joint-Conference Papers & Presentations

May 18, 2017: UCI Law signed a Memorandum of Understanding with Korea University School of law, solidifying the commitment to continue academic exchange.

In July 2016, the leaders of UC Irvine and Korea University met to launch a joint conference where faculty and students could gather to present and discuss their ongoing research projects situated at the intersection between U.S. and Korean law. The inaugural joint-conference was hosted by Korea University Law School in Seoul, South Korea this year with plans for the next joint conference to be held at UC Irvine in 2018.

Papers & Presentations:

1. Constitutional Adjudication in Korea and Development of Democracy

Speaker: Lee Jung-Mi, Endowed Professor, Korea University & Former Justice, Constitutional Court of Korea

Abstract: A brief examination of the history of constitutional adjudication and its effects on the country’s political, societal, and democratic growth. The Constitutional Court celebrated its 29th Anniversary this year, and despite its shorty history and initial challenges, the Court has made substantial contributions to the history of Korea. While the Constitution was the supreme value system of the nation, Korea was unable to see the Constitution as a law that had life. Citizens were skeptical about the need to build a separate, independent Constitutional Court. After the recent impeachment ruling of President Park Geun-Hye, however, the Korean people are starting to read the Constitution as being capable of having a real impact in citizens’ lives. Although Park’s impeachment decision marked a difficult point in Korean history, the case was a step forward in expanding Korea’s democratic values. The Constitutional Court has a short history; nonetheless, at every critical juncture in Korean history, the Court hsa served as a guardian to push forward democracy and the rule of law.

2. A Fresh Start with Firm Commitment: Korea University’s Legal Education

Speaker: Chai Lee-Sik, Professor Emeritus, Korea University

Abstract: Many lawyers trained under Japanese rule played key roles in the judiciary as well as in private legal practice even after our independence in 1945. In legal education, there was no exception. Many professors were educated and trained either in Japan or under Japanese rule in Korea. This resulted inevitably in heavy Japanese influence in law and education. Japan on the other hand was heavily influenced in legal practice and education by Germany. This tradition still subsists and the wide-ranging influence still persists. Over the years, many Korean students went for legal study beyond Japan, to Germany. The number of scholars who studied and trained under the so-called “Anglo-American legal system” is very limited, and they are still considered as standing outside the mainstream. It may be a time now for the Korea University Law School to lead Korean legal education in another way. We, in Korea, adopted a few years ago a new law school system modeled on the American law school system. Under the new system, we should at least try to learn the advantages of an Anglo-American legal system over those of our traditional Continental legal system, by adding it to our existing system, and allow the next generation to benefit from it. On this occasion, we are fortunate that we are given such opportunities to learn from scholars who lead the world in the legal system and education.

3. Fostering Private Equity Using a Law-First Approach

Speaker:  Summer Kim, Assistant Professor of Law, UC Irvine School of Law & Director, Korea Law Center

Discussant: Myoung Soon-Koo, Professor of Korea University

Abstract: In 2004, South Korean lawmakers introduced sweeping legislation to regulate Korean private equity. What is striking about the South Korean regulatory approach is that the laws first clearly outline the terms of an ideal private equity structure, and then private equity managers and funds are required to comply with such terms as a condition to entering the Korean private equity markets. Elsewhere, private equity funds are often referred to as shadow banks, with the descriptor “shadow” referring to the funds’ ability to perform bank-like activities while remaining outside the regulatory purview. This Article uses the South Korean experience as a case study to develop what it refers to as a “law-first” approach to regulating and fostering financial innovations. First, I evaluate the effectiveness of South Korea’s approach to regulating private equity funds, and next, I describe the market, political, and institutional features that made this unconventional approach not only sufficient, but also necessary, in fostering a private equity market in South Korea. The South Korean private equity example also shows how regulatory divergences can result in market coherence, and the important role of financial and regulatory diffusion channels in achieving such coherence. As to the differences between the South Korean regulatory approach and its foreign counterparts, I argue that they should be regarded not as aberrant behavior which must be conformed, but rather as an effort to push the envelope for private equity regulation. The South Korean experience provides a useful benchmark for other jurisdictions as they consider ways to use laws and regulations to bring private equity and other private funds from outside of the shadow into the light.

4. Curation, Law, and the Diffusion of Hip Hop in South Korea

Speaker: Funmi Arewa, Professor of Law, UC Irvine School of Law & Director, Center on African Business, Law & Entrepreneurship

Discussant: Lee Dae-Hee, Professor of Korea University

Abstract: African American music has become a dominant basis for popular music in many parts of the world. A diverse range of musical genres have arisen out of or been influenced by African American music, including spirituals, ragtime, blues, country, jazz, R&B, gospel, Doo-Wop, soul, rock, reggae, funk, disco, and rap. The global dissemination of African American musical forms exemplifies patterns of cultural diffusion of continuing relevance. The rise of hip hop music in South Korea offers an example of the development of hybrid and innovative forms of music that reflect the influence of African American musical forms and Korean musical forms. South Korean hip hop music and culture, which started as underground culture in the 1990s, has gained global recognition in recent years both as a distinct sub-genre of hip hop and a new trend in the Korean cultural wave. This Paper, which will be incorporated into a book on the global dissemination of African American music, will focus on the impact of curation choices by South Korean hip hop artists, the impact of Korean American on South Korean hip hop and entertainment industry more generally, and the impact of legal frameworks, particularly copyright law, on the development of South Korean hip hop.

5. Cognitive Bias & Decision-Making in the Criminal Justice System: Challenges and Solutions

Speaker: Song Richardson, Professor of Law & Interim Dean, UC Irvine School of Law

Discussant: Kang Soo-Jin, Professor of Korea University

Abstract: In the U.S., racial and gender biases have influenced the administration of justice. While these biases began as conscious racism and sexism, today, many of these biases operate at the unconscious level. I will discuss how these biases can impact the discretionary decisions of police, prosecutors, jurors and judges. It is likely that similar gender biases will influence decisions and judgments in the Korean criminal justice system. Additionally, as Korea becomes more ethnically diverse, I would also expect ethnic and racial biases to influence decision-making in ways that individuals are unaware of and thus, unable to control. I will end with some discussion of how to safeguard against the influence of these cognitive biases.

6. The Challenges of Freedom of Speech in the Digital Age

Speakers: David Kaye, UN Special Rapporteur of Freedom of Expression & Clinical Professor of Law, UC Irvine School of Law and Sarah Choi, Research Fellow, Korea Law Center at UC Irvine School of Law & Clinical Student, International Justice Clinic

Discussant: Kang Pyoung-Geun, Professor of Korea University

Abstract: Under Article 19 of the International Covenant on Civil and Political Rights, everyone has the right: (1) to hold opinions without interference; (2) to freedom of expression including the freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice and (3) to exercise the rights provided in paragraph 2 provided certain restrictions so long as these restrictions are provided by law and are necessary for respect of the rights or reputations of others and for the protection of national security or of public order, or of public health or morals. Under the United Nations mandate for Freedom of Expression, the Special Rapporteur has transmitted urgent appeals and letters of allegation to Member States on alleged violations of the right to freedom of opinion and expression, participated in country visits (by invitation only) and conducted annual, thematic reporting.

The focus of this year’s thematic reporting has been freedom of expression in the digital age. Issues such as independence of media and protection of journalists, protection of dissent from members of vulnerable groups (i.e., online abuse of women, LGBTQ, etc.) and digital rights (i.e., cybersecurity, content regulation, internet shutdowns, etc.) are some examples of the substantive areas of work under the mandate. Specifically in relations to Korea, the International Justice Clinic at UC Irvine School of Law participated in filing an amicus brief to the Constitutional Court of Korea regarding a case concerning telecommunications operators. The brief analyzed whether there could be a disregard to the rights to freedom of expression when a telecommunications operator discloses customer identity data to select government authorities without a proper judicial warrant. Additionally, a communication was written to the South Korean government regarding concern for an alleged artistic and cultural blacklist. While the alleged blacklist was not publicly disclosed, it undoubtedly created an overall chilling effect on citizens’ rights to freedom of artistic and cultural expression.

7. Judicial Parochialism and Cosmopolitanism: Foreign Judgments in U.S. Courts

Speaker: Chris Whytock, Professor of Law & Professor of Political Science, UC Irvine School of Law

Discussant: Shin Chang-Sop, Professor of Korea University

Abstract: Under U.S. law, there is a general rule favoring recognition and enforcement of foreign country judgments, an approach animated by concerns about excessive judicial parochialism. Recently, however, business-oriented interest groups, along with a number of lawyers and scholars, have argued that U.S. courts are too willing to enforce foreign court judgments—that they are, in effect, too cosmopolitan—and that this approach harms business. They have therefore proposed legal changes to make the approach to foreign judgments more restrictive. Others argue that these concerns may be overblown, driven by a few high profile cases, and that the need for change has not been demonstrated. The problem is that this debate has unfolded in the absence of systematic foreign judgment recognition and enforcement decisions by U.S. state and federal courts. Our results suggest that U.S. courts are moderately cosmopolitan in their foreign judgment decision-making. On the one hand, we find that U.S. courts recognize and enforce foreign country judgments more often than not; that recognition and enforcement rates may be lower in state courts than in federal courts, but only slightly; and that U.S. courts are not less likely to recognize and enforce foreign country judgments when the party seeking recognition and enforcement is a foreign party rather than a U.S. party. On the other hand, we find that U.S. courts are more likely to recognize and enforce foreign judgments from more familiar countries than less familiar countries, and less likely to recognize and enforce in family law matters, which tend to have a higher level of cultural salience.

Our findings also suggest that U.S. courts are not excessively cosmopolitan—they discriminate against foreign judgments from countries with low levels of rule of law or poor control over corruption—and that businesses may actually disproportionately benefit from the current approach to foreign judgments. In short, the evidence suggests the U.S. courts do a decent job with foreign judgment decision-making, and we uncover no evidence that clearly suggests that law reform is needed.

8. From Professional Monopolies to Magic Circles. Evolving Mechanisms in the Control of Lawyer Supply

Speaker: Bryant Garth, Chancellor’s Professor of Law, UC Irvine School of Law

Discussant: Kim Je-Wan, Professor of Korea University

Abstract: One is the idea of law in relation to revolution or more generally state transformations, drawing on Harold Berman and Pierre Bourdieu. The concern is with the ways that law shifts in relation to larger transformations, like the Protestant Reformation. Law serves power, and the paradox to examine is how it shifts to serve the new power. Typically as Berman showed there is de-legitimation of the “learned law” of those behind the status quo – and whose power depends more on family capital (personal relationships) than meritocratic scholarly production. Relatively marginal scholars at the same time form an alliance with emerging social groups, provide learned law to serve those groups, but also link the new learned law with the older law and legal institutions. There is both change and a continuity that serves to reproduce traditional elites.

A second theoretical framework is identified with Abel and Lewis, defining the legal profession in relation to its ability to limit the supply of lawyers. There were many scholarly challenges to this relatively narrow sociological theory of professions, and its seems to provide a weak theory given the proliferating number of lawyers and law schools in many parts of the world – exemplified especially by Australia, Brazil, India, Mexico, and the United State. But as noted below, the reproduction of the elite in the current phase of change is still quite evident and makes for a “one percent” phenomenon despite apparent openness in the profession.

The third framework focuses on empire, noting the long relationship between law and empire. Law provides legitimacy for empire and mechanisms for hegemony that survive the formal empire. Hegemonic relationships endure such as those in the former British empire, but the current “revolution” that stems from the 1980s challenges the older hegemonies in favor of (among other competing powers) US hegemony – in which law plays a major role that increased substantially with the end of the Cold War.

In this revolution as with others, within the United States the neo-liberal attack on the welfare state involved a relatively marginal group of legal academics and practitioners allied with what had been a fringe political movement. By law and economics then became a new orthodoxy and provided part of the legal equipment and legitimacy that was the learned law behind neo-liberalism. This revolution led to major changes. The changes first challenged the legal elite in the United States, but the leading institutions of the legal elite in the United States – in particular, elite law schools and leading corporate law firms – absorbed the changes and reinforced their own role. Elite reproduction took place as part of the process. And it produced a new kind of learned law and legal expertise that was exported and imported abroad, leading to both similar and different impacts in different places. The impacts in legal education in particular are the subject of our research.