This Article makes two primary arguments. First, that the increased resort to bilateral and regional trade agreements has taken a neoliberal turn. As such bilateral and regional trade agreements are now a primary means through which greater investor protections, commodification of social services, guaranteed rights of investor access to investment opportunities, privatization of public service goods, and generally the diminution of sovereign control are being realized. These trade agreements make the foregoing goals possible not just in developing countries, but in industrialized economies as well. I show that these agreements provide business interests with opportunities to exercise concerted pressure to influence the adoption of neoliberal economic policies in both developed economies and developing economies.

Second, this Article argues that bilateralism and regionalism in trade are contemporary fads that are spreading neoliberal economic ideals in the periphery of the global trading system. In other words, emulation by small developing countries of neoliberal economic policies in developed countries is a significant driver of economic reform. Developing countries adopt neoliberalism not simply because it is imposed, as many accounts suggest. Rather, neoliberalism is also voluntarily adopted for a variety of reasons: (i) because there has been a convergence in the thinking of policymakers and academic thinkers in developing and developed countries in part as a result of socialization through education or professional associations and contacts; (ii) as a result of persuasion that neoliberal reforms are important preconditions for goals such as increased economic growth or the efficiency of public sector institutions, developing country officials have adopted them; (iii) public officials in developing countries are strategically adopting neoliberal reforms since they are regarded as a signaling device that their country is ‘safe’ for investment or because bilateral and regional trade agreements come with budget support that is otherwise unavailable to these developing country officials in their home country; (iv) officials in developing countries are passive imitators who in the absence of solid evidence as to the efficacy of neoliberal ideals on their own account or in relation to alternative reform ideas are rationally bounded actors who find it impractical to assess the efficacy of neoliberal ideals or their alternatives.

In short, this Article argues that the increased number of regional and bilateral trade agreements represents an important opportunity for the further diffusion of neoliberal economic ideals, an insight often missing in leading accounts that have emphasized how this trend conforms or departs from the norms of the World Trade Organization. This paper does so using a constructivist account of the circumstances under which neoliberalism arises in the turn towards regionalism and bilateralism. It shows how ideas about market governance and the institutions and experts that generate and perpetuate these ideas impose an incentive structure within which choices in favor of neoliberalism are more than less likely to be exercised.

Considerable scholarship during the last few decades addresses the question of whether corporate laws are becoming global by converging on commonly accepted approaches. Some scholars have asserted that such convergence is occurring around the most efficient laws and institutions, thereby marking the “End of History” for corporate law. This Article responds to such assertions by developing three claims not previously given due attention in the convergence literature. First, it demonstrates that the history of corporations and corporate law has been one of seemingly constant movement toward global convergence, yet the resulting convergence is always incomplete or transitory. Next, it points out that because forces besides efficiency also produce convergence, convergence often occurs around corporate laws and institutions that have no particular efficiency or other normative advantage, or that necessarily represent stable equilibrium points. Finally, the Article asks what are the important corporate laws and institutions by which to measure the extent of convergence at any one time. It develops the answer that a stable convergence is least likely for the most important corporate law issues, which are characterized by tensions between competing policies and no easy solutions for the problems presented.

The notion that “global judicial dialogue” is contributing to the globalization of constitutional law has attracted considerable attention. Various scholars have characterized the citation of foreign law by constitutional courts as a form of “dialogue” that both reflects and fosters the emergence of a common global enterprise of constitutional adjudication. It has also been claimed that increasing direct interaction between judges, face-to-face or otherwise, fuels the growth of a global constitutional jurisprudence.

This Article challenges these claims on empirical grounds and offers an alternative account of the actual reasons for which constitutional courts engage in comparative analysis. First, it is both conceptually and factually inaccurate to characterize the manner in which constitutional courts cite and analyze foreign jurisprudence as a form of “dialogue.” As a conceptual matter, constitutional courts do not cite one another for the purpose of communicating with another, while as an empirical matter, there is little evidence to suggest that one-sided citation of a handful of highly prestigious courts has given way to genuine two-way dialogue.  Second, judicial interaction is neither a necessary nor a sufficient cause of constitutional globalization. Rather, the effect of such interaction on the extent to which judges engage in comparativism is dwarfed by institutional and structural variables that lie largely beyond judicial control.

The relative unimportance of judicial interaction is illustrated by a comparative case study of the Constitutional Court of the Republic of China (Taiwan), which is akin to a natural experiment in the capacity of a constitutional court to make use of foreign law even when it is largely deprived of contact with other courts.  Taiwan’s precarious diplomatic situation effectively precludes the members of its Constitutional Court from participating in international judicial gatherings or visits to foreign courts. Nevertheless, the Taiwanese Constitutional Court nearly always engages in extensive comparative constitutional analysis, either expressly or implicitly, when rendering its decisions. To explain how and why the Court makes use of foreign law notwithstanding its isolation, this Article combines quantitative analysis of citations to foreign law in the Court’s published opinions with in-depth interviews of numerous current and former members of the Court and their clerks.

Comparison of the Taiwanese Constitutional Court and U.S. Supreme Court demonstrates that “global judicial dialogue” plays a much smaller role in shaping a court’s utilization of foreign law than institutional factors such as (a) the rules and practices governing the composition and staffing of the court and (b) the extent to which the structure of legal education and the legal profession incentivizes judges and academics to possess expertise in foreign law. Notwithstanding the fact that American justices enjoy unsurpassed opportunities to interact with judges from other countries, comparative analysis plays a less frequent role in their own constitutional jurisprudence than in that of their foreign counterparts. Openness on the part of individual justices to foreign law ultimately cannot compensate for the fact that the hiring and instructional practices of American law schools neither demand nor reward the possession of foreign legal expertise.

This Article also documents the fact that judicial opinions are a highly misleading source of data about judicial usage of foreign law. Interviews with members of the Taiwanese Constitutional Court and their clerks reveal the existence of a large gap between the frequency with which the court cites foreign law in its opinions and the extent to which it actually considers foreign law. Analysis of judicial opinions alone may lead scholars to conclude mistakenly that a court rarely engages in comparative analysis when, in fact, such analysis is highly routine.

This Article explores three areas in which globalization is profoundly affecting the development of a global environmental law. First, countries increasingly are borrowing law and regulatory innovations from one another to respond to common environmental problems. Although this is not an entirely new phenomenon, it is occurring at an unprecedented pace. Second, lawsuits seeking to hold companies liable for environmental harm they have caused outside their home countries are raising new questions concerning the appropriate venue for such transnational liability litigation and the standards courts should apply for enforcement of foreign judgments. Third, nongovernmental organizations are playing an increasingly important role in influencing corporate behavior by promoting greater informational disclosure and transparency to mobilize informed consumers.

The absurd results doctrine of statutory interpretation allows courts to depart from clear legislative text when a literal reading would be “absurd.” Traditionally, courts defined an absurd result as one that offends fundamental social values. Over time, however, courts have expanded the concept of legal absurdity to include outcomes that do not violate moral principles, but instead present regulatory burdens deemed too onerous to reflect congressional intent. In June 2010, the U.S. Environmental Protection Agency (EPA) invoked this expansive reading of the absurd results doctrine to support a regulation known as the “Tailoring Rule,” which the agency promulgated as part of its first effort to regulate climate-changing greenhouse gases under the Clean Air Act (CAA). The CAA explicitly states that facilities emitting any regulated air pollutant in excess of specific quantities must obtain a permit from the EPA or authorized state agencies. The Tailoring Rule, however, raises the statutory permitting threshold for facilities that emit greenhouse gases, on the ground that applying the existing thresholds to greenhouse gas emitters would be so burdensome for the agency and industry as to constitute an absurd result. While the Tailoring Rule illustrates the practical expediency of an expansive absurd results doctrine, it also demonstrates the doctrine’s inconsistency with the constitutional separation of powers, administrative law principles, and the mandate of federal environmental statutes. Focusing on the example of environmental law and the Tailoring Rule in particular, this Comment argues that courts should restrict the absurd results doctrine to its traditional scope and reject arguments that a certain degree of congressionally mandated regulation is absurd as a matter of law.

In March 2010, the Washington State Legislature passed its Act Limiting Strategic Lawsuits Against Public Participation. The new Act fills a critical void in Washington’s protection of free expression and petition rights. The Washington Act protects the free expression of Washington citizens by shielding them from meritless lawsuits designed only to incur costs and chill future expression. This Comment offers interpretive guidance for Washington courts by examining the new law, its legislative history, its constitutional underpinnings, and its relationship to the influential California anti-SLAPP statute on which it is modeled. Although the Washington Act shares many identical provisions with the California statute, Washington’s Act does include important deviations from the California model. This Comment embraces long-standing canons of statutory construction to argue that the Washington Act’s deviations reveal a specific intent to reject certain aspects of the California law. Among these specific rejections is the California law’s broader coverage of protected free expression. While California protects expression related to “issues of public interest,” the Washington Act protects expression related only to “issues of public concern.” Washington courts interpreting this important provision should reject California case law and embrace the “public concern” test established by the United States Supreme Court in Connick v. Myers, a test that already occupies solid ground in Washington case law.