Shanghai World Expo, China Tort Law Conference & Comer Dismissal

I arrived in Shanghai on Monday May 24. On Tuesday I attended the Shanghai World Expo, a modern version of the world’s fairs I attended as a child in Seattle in 1962 (for which the Space Needle was constructed) and New York in 1964 (which was held in Flushing Meadows and left the world the Unisphere). The site of the Shanghai Expo is enormous extending over both banks of the Huangpu River south of the Bund and the Pudong areas of Shanghai. Special “Expo taxis” that feature air conditioning and working seatbelts are the only ones allowed to take passengers to the Expo grounds.

The Expo’s theme “Better City, Better Life” suggests that it is to highlight a more optimistic future for the world. But if the future is like the Expo was the day I was there - extremely crowded (more than 300,000 people) and very hot - then the future is not so appealing. The lines for the major country pavilions were enormous. I got into what I thought was a short line for the German Pavilion and then saw that I was standing next to a sign that said “Three Hour Wait from Here” so I abandoned the effort to get in. I did manage to visit many of the smaller country pavilions and had a great time at the Chile Pavilion where they were serving pisco sours, Chilean wines and empanadas. Twice groups of Chinese primary school girls approached me and asked in perfect English if I would pose for a photo with them. The Cuban Pavilion was serving mojitos and letting school kids write graffiti all over the wall that served as a projection screen. A photo gallery of my visit to the Expo and time in Shanghai is available at: http://gallery.me.com/rperci/100684.

On Wednesday night I had dinner with my friends Dan Guttman and Professor Huiyu Zhao from Shanghai Jiao Tong University who is currently serving as the deputy chief prosecutor of the People’s Procurate in Shanghai. We had a great discussion about the state of the rule of law in China. The President of the Supreme People’s Court recently urged local courts to resist political influence in deciding cases, though many observers are skeptical concerning whether this will make much difference. The Supreme People’s Court, the Procurate and the Ministry of Public Security just issued two rules to ban the use of confessions extracted by torture in capital cases.

On Thursday I flew to Beijing to participate in two conferences. The first conference, sponsored by Renmin University Law School and the Beijing office of the Natural Resources Defense Council (NRDC), focused on the new Chinese tort law. Some provisions of the law are designed to make it easier for plaintiffs to recover compensation for harm caused by pollution. The conference featured some prominent Chinese civil law scholars who indicated that environmental torts are now moving into the mainstream. On Saturday May 29 I spoke at the conference on the history of environmental torts in the United States and new developments around the world. On Sunday May 30 I spoke on the closing day of the conference on the topic of public interest litigation addressing environmental problems. The conference brought together a highly knowledgeable group of legal scholars, lawyers, judges, and environmentalists and the discussion was quite lively at times. There seemed to be some disagreement among the group on how to interpret some of the provisions of the new law, particularly with respect to joint and several liability and burden-shifting to defendants to disprove causation. While some question whether the law is significantly different from previous laws on the books, its drafters seem to have wanted to direct more of the law’s attention to pollution problems.

In my talk at the torts conference I mentioned U.S. climate change litigation, including the Comer case where Hurricane Katrina victims seek to recover damages from oil companies for contributing to climate change. I had just received an email from Professor Jim May of Widener, who authored a law professors’ amicus brief that I had joined in the case, announcing its bizarre outcome. As noted in the May 2, 2010 entry on this blog, after granting a rehearing en banc in the case on March 1, the Fifth Circuit announced on April 30 that there no longer was a quorum of the 16 judges on the full court available to hear the case because eight judges had recused themselves. However, last Friday five of the remaining eight judges announced that the result of the dismissal of the en banc would be reinstatement of the district court’s decision dismissing the lawsuit rather than reinstatement of the 3-judge appellate panel’s decision reversing the dismissal. The other three judges dissented arguing that once the en banc court is deprived of a quorum it has no power to conduct business. However, the legal effect of taking a case en banc is to vacate the panel’s decision. Try explaining that to a Chinese audience - I decided not to try.