Private Enforcement of the Public Interest in China: Potential and Pitfalls
A talk by Donald C. Clarke
When governments find their own resources inadequate for the advancement of public-policy goals, they may choose to adopt a system (generally known as the “private attorney-general”) (PAG) that provides incentives to private parties to advance public-policy goals through litigation. Yet in adopting such a system, the state loses a certain measure of control over policy implementation and law enforcement. Some states are willing to live with this tradeoff; the Chinese state, however, has traditionally been reluctant to put the machinery of state coercion into private hands. This paper examines the current state and future potential of PAG litigation in China. It finds that many of the elements of PAG litigation can be found in the Chinese legal system, but that the state still erects barriers that prevent its use in a systematic way. As a result, an important potential method of law implementation is foreclosed.
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Donald C. Clarke is a specialist in modern Chinese law, focusing particularly on corporate governance, Chinese legal institutions, and the legal issues presented by China's economic reforms. He is fluent in Mandarin Chinese and has also published translations of Japanese legal scholarship. In addition to his academic work, he founded and maintains Chinalaw, the leading internet listserv on Chinese law, and writes the Chinese Law Prof Blog.
Professor Clarke was educated at Princeton University (AB) and the University of London (MSc), and received his law degree from Harvard Law School, where he was a member of the Harvard Law Review. From 1995 to 1998, he practiced law in the New York, Beijing, and Hong Kong offices of Paul, Weiss, Rifkind, Wharton & Garrison. He has previously been on the law faculties of the University of Washington School of Law and the School of Oriental and African Studies at the University of London, and has been a visiting professor at New York University School of Law. Since 2005, he has been on the faculty of the George Washington University Law School. This fall, he is a visiting professor at the UCLA School of Law.
Professor Clarke is a member of the Academic Advisory Group to the US-China Working Group of the United States Congress and has served as a consultant to a number of organizations, including the Financial Sector Reform and Strengthening Initiative (FIRST), the Asian Development Bank, and the Agency for International Development. He is a member of the New York bar and the Council on Foreign Relations.
Published: Wednesday, November 26, 2008