The Korea Law Center, in association with Berkeley Law, hosted this year’s second Joint Faculty Workshop with professors from Berkeley Law and the Seoul National University School of Law (SNU). The Joint Faculty Workshop annually brings together professors from both institutions along with leading figures from the U.S. and Korean legal communities. Through continued workshops, the Korea Law Center hopes to build stronger relationships and encourage vigorous scholarship for both countries and law schools. The workshop is part of the Korea Law Center’s efforts to foster collaboration and a robust exchange of ideas, theories, and best practices in the fields of law, government, and business. Dean Chemerinsky and Dean Hong Sik Cho gave opening remarks to start the workshop, and twelve professors, six from each institution, presented on issues ranging from algorithmic civil rights to the Korean Arbitration Act. The conference concluded with a closing reception for the visiting SNU scholars, legal experts, students, faculty, and the Bay Area Korean community.
The presentations from the Joint Faculty Workshop are described below in greater detail. The Korea Law Center looks forward to next year’s Joint Faculty Workshop and extends thanks to all the presenters and attendees of this outstanding event.
The first session kicked off with presentations from Professor Woo-Young Rhee, J.S.D, Professor of Public Law at the SNU, and Professor Sonia Katyal, Chancellor’s Professor of Law at Berkeley Law. Professor Sang Jo Jong from SNU and Professor Bertrall Ross from Berkeley provided comments.
Professor Rhee started by presenting her paper, The Warrant Provisions in South Korea’s Constitution in Korea’s Constitutional Political History and the Current Constitutional Revision Discussion. She introduced the controversy regarding the express warrant provisions in South Korea’s Constitution, which requires prosecutors to request a warrant before a judge can issue one. This express Constitutional requirement has arguably led to the executive branch abusing its power and overstepping its authority by commandeering the prosecutors’ office for its own aims. Professor Rhee then detailed the current arguments for and against amending the express warrant provisions in the next constitutional revision within the backdrop of South Korea’s unique political history and need for human rights protection in the 20th century.
Next, Professor Katyal presented her paper, Algorithmic Civil Rights. Professor Katyal looked at the intersection of civil rights, machine learning, and intellectual property to argue for new approaches for maintaining civil rights in the age of big data and algorithms. She argued that a focus on traditional civil rights protections needed to be eschewed for broad and creative solutions that focus on untangling the privacy and property protections that accompany an algorithm. Professor Katyal presented specific examples of cognitive and statistical biases that can produce skewed algorithmic results and presented possible solutions for decoupling privacy from property by looking to whistleblower statutes and other trade secret exemptions for algorithmic auditing.
Professor Kye Joung Lee from SNU and Professor Amanda Tyler from Berkeley provided comments for Session II. First, Professor Andrew Bradt, Professor of Law at Berkeley Law, introduced in his paper, Strategic and Political Implications of Multidistrict Litigation in Public-Law Cases, the relevance and utility of multidistrict litigation (MDL) in the current legal scene, especially as litigation against the Trump administration has proliferated rapidly across the nation. The paper considers an important procedural question: whether those similar cases should be consolidated in a single court. Professor Bradt explores the efficiency benefits for consolidating public-law cases under MDL, while presenting prudent reasons why MDL should be utilized primarily for mass torts or “Civ Pro classroom hypotheticals.”
Second, Professor Hughes, Professor of Law at SNU, presented on what the U.S. could learn from Korea’s Arbitration Act (KAA). He introduced and compared the rules from the Federal Arbitration Act (FAA), the New York Convention, and the UNCITRAL Model Law (UML). Then, he presented the advantages of KAA, which adopted and revised UML. By comparing and contrasting the different systems, Professor Hughes argued for the FAA’s adoption of elements of KAA for arbitration reform.
In the third session, Professors Daniel A. Farber of Berkeley Law and Sang-Won Lee of SNU both began with critiques of new phenomena arising in contemporary government. Professor Seong Wook Heo from SNU and J.S.D. Candidate Gina Choi from Berkeley provided comments. Professor Farber examined the Trump administration’s unprecedented distribution of authority between branches in the U.S., while Professor Lee explored the roots of prosecutorial misconduct and the recent impeachment of the South Korean president, Park Geun-Hye.
In contrast to Justice Elena Kagan’s positive expectations for a “presidentialized” administration, Professor Farber argued that the Trump presidency seems to emerge as an anomaly. Although Professor Farber suggested that elements of Trump’s governance may have been inherited from previous administrations, he also argued that the gradual shift of power from expert bureaucracies to the executive branch has now gone too far.
Much of the issues that have usually beset The White House are, according to Professor Farber, now amplified into unusual permutations. Trump’s unique approach to business has carried over to his unique approach to governance, policy-making, and interbranch relations.
However, Farber’s argument does not deny the benefits of more presidential control, but instead begs for a nuanced re-examination of Kagan’s argument as well as the trend of silencing bureaucratic agencies under Trump’s presidency. Moreover, Professor Farber was careful to affirm that any movement to the extreme — tendencies toward either excessive centralization or excessive decentralization — rendered an unwanted imbalance in our government.
Professor Sang-Won Lee’s candid presentation tackled many of the pertinent legal questions that have emerged with the recent impeachment of the former President of South Korea, Park Geun-Hye. Refreshingly unrestrained, Professor Lee openly interrogated the original “sins” that have long corrupted Korea’s legal system, whose “Justice Apostles” had in large part enabled the national scandal.
His inquiry into prosecutorial bias, focalized through various psychological and philosophical theories, accompanied his practical insights into policy improvement. Professor Lee diagnosed nuances that can confuse justice in and outside the court.
But most ambitiously, Professor Lee attempted to answer the difficult questions of “why” and “how.” Why does misconduct in the prosecutor’s office happen? How do prosecutors who espouse justice and ethics proceed to operate in unjust and unethical ways? In doing so, Professor Lee seemed to not only strike at questions sensitive to the Korean political climate, but encouraged retrospection of the greater questions regarding law itself, and how it may best function to guarantee legal justice.