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Qiao examines how multi-trillion dollar financial markets have developed outside the law in China, despite the considerable risks they pose
In a new article Professor Shitong Qiao examines how two financial markets worth trillions of dollars each developed extralegally over the past two decades to help investors circumvent Chinese laws and regulations - with the tacit approval of the Chinese government.
Finance Without Law: The Case of China, forthcoming in the Harvard International Law Journal, shows how Chinese internet companies have used a structure called a variable interest entity to get around the government’s ban on foreign capital in high-tech industries and to get listed on overseas stock markets. Qiao also explains how Chinese companies avoid regulations on the issuance of international bonds through keepwell deeds that allow them to issue international bonds indirectly through overseas subsidiaries.
Though contracts for these financial mechanisms are likely unenforceable in Chinese courts, resulting in considerable risk, international investors have invested capital essential to China's economic growth over the past two decades through such structures. Why?
Qiao argues that China's approach to financial development, often stymied by domestic political conflict, has been to "govern by extralegality,” signaling to investors the security of contract arrangements outside the law. This approach spurs market investment and development while simultaneously allowing the party-state retain control through the potential of enforcement against extralegal arrangement.
"Such state participation, together with the more conventional private reputation mechanism, mitigates the risk of contract defaults in the transnational market of corporate debt and capital," Qiao writes on Columbia Law School's Blue Sky Blog. "The state has a collective interest in maintaining its reputation for respecting and maintaining extralegal arrangements known to be useful for the state. There are of course risks to trust based on a state’s observed incentives, but they are manageable risks in ordinary times."
Qiao is the Ken Young-Gak Yun and Jinah Park Yun Research Scholar and an expert on property and urban law with a focus on comparative law and China. Prior to joining Duke in August, he was a tenured professor at the University of Hong Kong, where he started his academic career in 2014.
Greene and Renberg '22 study the widespread phenomenon of lay judging: people who lack law degrees adjudicating legal matters in the nation's state courts
In a recent essay Professor Sara Sternberg Greene and Kristen Renberg '22 PhD '20 study a phenomenon of which few Americans may be aware: the widespread granting of authority to adjudicate legal matters to people without a law degree. In Judging Without a J.D., published in Columbia Law Review, Greene and Renberg argue that the proliferation of lay judges in the U.S. reflects the devaluation of the legal problems of the poor, who are disproportionately Black and Latinx.
The practice of lay judging dates back to 17th century colonial courts, but 32 states still allow a person without a law degree to become a judge, including 17 states that allow non-lawyer judges to adjudicate eviction cases, with wide variations in qualifications and legal training requirements. Most of these lay judges are in low-level state courts, where they decide civil matters such as debt collections, landlord-tenant issues, and domestic violence cases. And in most cases, low-income litigants lack legal representation.
"Since most poor litigants are unrepresented in civil legal cases, this sets up an almost Kafkaesque scene in courtrooms across the country: Legal cases that have a profound effect on poor families, such as whether they will lose their home to eviction, are argued in courtrooms where either no one knows the law or only one party—the attorney for the more powerful party—does," Greene and Renberg write. "The inequality of the situation is glaring. There is no real illusion of a fair legal process."
Instead, the magisterial court system is one where "poor people's problems are simply dismissed, deemed unimportant and unworthy of legal expertise," write Renberg and Greene, a sociologist and legal scholar whose work focuses on the relationship between law, poverty, and inequality. To remedy the problem, they propose a state court job corps program that would fund education in both law and social work of people who agree to work in lower-level state courts. Such a program would increase the number of law graduates trained to work in the unique social context of such courts.
"There needs to be a better understanding among state and federal policymakers about how low-level states courts fit into the broader historical story of neglecting institutions that serve the poor. ... Ultimately, if change can be made in the court system, perhaps that reform can be an important step in tackling, more broadly, the structures and institutions in our society that promote inequality."