Archive for the ‘International & Comparative Law’ Category
posted by Gerard Magliocca
My graduate student, Professor Mohamed Abdelaal of Alexandria University in Egypt, offers these thoughts about the trial of deposed Egyptian President Morsi below the fold: Read the rest of this post »
posted by Margot Kaminski
This is my second post about the leaked draft of the Trans-Pacific Partnership Agreement. Here, I address some of the copyright provisions. This is not an exhaustive analysis, and I’ve tried to make it complimentary to what’s already out there. For analysis of additional provisions, see KEI, Public Citizen, Ars Technica, Kimberlee Weatherall for an Australian perspective, and EFF. [Note: I have updated this post .]
First, there are major splits between countries. The United States consistently takes the position of pushing for stronger IP, while others—especially Canada and New Zealand— advocate a more balanced approach. The divisions are particularly prominent when it comes to preliminary statements about the public domain and public health, none of which the U.S. supports. These analyses are on one subset of proposed language, not finalized language, and a lot of the agreement could change. I focus my analysis primarily on the U.S. proposed language.
Second, the U.S. proposals look very similar to our past Free Trade Agreements, including the earlier texts of ACTA. Whatever message was sent when the EU refused to ratify ACTA, the U.S. Trade Representative did not receive it. Many of the provisions that appeared in ACTA are also areas of proposed reform in the United States—the U.S. proposed text for the TPP would internationally bind this country and prevent many proposed reforms to our copyright law.
Third, and this is an important point: U.S. proposals are less balanced than U.S. domestic law. As I noted in my previous post, this is because a subset of IP industries provide the USTR advice, leaving out important balancing viewpoints and sometimes misrepresenting U.S. law.
Similarities to ACTA:
Intermediary liability (Article QQ.I.1): As in ACTA, the central copyright argument in TPP is over what kind of intermediary liability regime will be internationally required. Currently, online intermediary liability is not governed at an international level. Michael Geist has done a great job of outlining the basic differences in the TPP proposals for intermediary liability. The United States is pushing for notice-and-takedown, with a coalition of countries, including Canada and New Zealand, pushing instead for a notice-only provision. These regimes offer different levels of due process for Internet users.
Statutory damages (ARTICLE QQ.H.4.Y(15)): As in ACTA, countries are fighting over statutory (or “pre-established”) damages: damages awarded to copyright owners without a showing of actual harm. Australia opposes this provision because it does not have statutory damages. Statutory damages are an often-criticized part of the U.S. regime, enabling disproportionately large awards in copyright cases.
Criminal liability (Article QQ.H.7(2)): As in ACTA, countries have split over the definition of criminal copyright infringement. The U.S. proposal, like U.S. law, pushes to criminalize very low level infringement, to go after even low level filesharing. Other countries want to keep it at the international requirement, which requires a motive of financial gain or commercial advantage. The United States lost a recent WTO case on criminal copyright, and has since been trying to ratchet up international criminal copyright law through free trade agreements.
Criminal Intermediary liability (Article QQ.H.7(6)): As in ACTA, the TPP criminalizes aiding and abetting infringement. This allows authorities to go after websites under criminal law, rerouting around protections from civil liability. Coupled with a low underlying threshold for criminal infringement, this could sweep in a lot of activity. Thanks to Kimberlee Weatherall for catching this.
Asset Forfeiture (Article QQ.H.7(c) p. 79): As in ACTA, the TPP allows the seizure of “any related materials and implements used in the commission of the alleged offense”. In the United States, asset forfeiture has been used to seize websites before trial.
DRM/Technological Protection Measures (Article QQ.G.10): As in ACTA, the United States is trying to export the DRM provisions of the DMCA, as its version of implementation of the WIPO Copyright Treaty. As I note below, however, what’s proposed is a worse version of what we have at home. The recent conflict over cell-phone unlocking shows that this is likely to be the focus of domestic policy reform. Some suggest that the DRM provisions here criminalize unlocking even when the underlying purpose is fair use.
De minimis border measures (the “Ipod search”)( Article QQ.H.6(8)): As in ACTA, the United States is pushing to shrink the “personal use” border exception that currently exists in international law, in TRIPS Article 60. For now, however, it looks as though the de minimis provision is functionally the same as TRIPS, due to a strategic footnote (235). This is something to watch.
Account termination (Article QQ.I.1(p. 88)): In U.S. copyright law, there’s a provision requiring online intermediaries to have a termination policy in place for repeat copyright infringers. Similar language has been proposed in the draft TPP. As Annemarie Bridy has pointed out, this language may have different implications in different countries. It probably does not require graduated response. However, its inclusion can also be read as endorsing recently developed private-ordering graduated response in the United States: agreements between private companies to kick infringing users offline. And transplanting this language into other countries might lead them to push for similar or more draconian policies.
Things that differ from US law:
Fair Use/Exceptions and Limitations language (Article QQ.G.Y): There‘s no fair use. The broadened copyright exceptions language that the USTR bragged about earlier this year is not very broad. And it’s not fair use. This may harm our exporting businesses. Google just won the Google Books case, where Google books was found to be fair use; TPP shows no evidence of extending that kind of exception abroad.
International First Sale Doctrine (Article QQ.G.3, Article QQ.G.17): Despite the fact that the Supreme Court held in Kirtsaeng in March that first sale doctrine applies abroad—and trumps the importation right—the USTR is exporting the opposite. The USTR also opposes saying that countries are encouraged to establish international exhaustion of rights. All other countries (except Canada, which is neutral) want international first sale doctrine. It’s not clear to me why the USTR thinks it can bind the US to law contrary to Kirtsaeng—and this draft is from months after the Kirtsaeng opinion came down. I’m happy to be convinced otherwise, but I can’t see how the two are reconcilable.
Temporary reproductions (Article QQ.G.1): Despite the fact that there is a circuit split over whether temporary reproductions are considered “fixed” enough to be copyrightable, the USTR proposes exporting a requirement that temporary reproductions are covered by copyright.
Standard technical measures (Article QQ.I.1(p. 88)): In the DMCA, there is a requirement that intermediaries accommodate “standard technical measures.” However, those measures must be arrived at through a multi-industry process that is open and fair. In practice, this means that there are no standard technical measures in the United States. The words “multi-industry” and “fair” get left out of the TPP, which means that standard technical measures may get developed abroad, and online intermediaries will have to accommodate them there, where they don’t have to at home.
Criminal liability ((Article QQ.H.7(2)): U.S. criminal copyright law contains a numerical threshold for criminal copyright infringement that is done without commercial motivation- $1000 of infringement in 180 days. The TPP proposal substitutes the word “significant” for an actual number. This difference could go either way.
Notice-and-takedown misuse & attorneys’ fees (Article QQ.I.1 (p.89)): In the DMCA, people who misuse notice-and-takedown can be sued, and are subject to attorneys’ fees. Even though the US proposal clearly asks for attorneys’ fees in other places, it does not include attorneys’ fees in the material misrepresentation provision.
Reverse engineering exemption to TPM/DRM (Article QQ.G.10): Thanks to Jonathan Band for pointing this one out to me originally. The reverse engineering exception to DRM exported by the US is not as broad as the one available domestically.
Privacy (Article QQ.I.1): TPP barely mentions privacy. There are some discussions of a no-duty-to-monitor provision, but no broader assertion of privacy principles that I can find. We don’t normally think of U.S. law as containing a nod to balancing copyright enforcement with privacy, but it turns out that 512(m)(2), which says providers shall not access content contrary to law, was intended to bolster the “no monitoring necessary” requirement to mean “no monitoring necessary, AND don’t violate wiretap law.” This didn’t make it in.
posted by Margot Kaminski
Yesterday, Wikileaks leaked the draft IP chapter of the Trans-Pacific Partnership Agreement (TPP). This is the first of two posts I’ll make on the significance of the leak. In this post, I discuss why the leak matters from the process perspective. In the next, I’ll point out detailed substantive issues in the draft’s copyright provisions. Unsurprisingly, the process and the substance are closely intertwined.
Up until this leak, only a subset of domestic IP stakeholders has had access to the TPP text. The U.S. Trade Representative has shown the draft text to its closed advisory committees, but not to anybody else. Content industries and pharmaceutical industries sit on the IP advisory committee. Internet industries, smaller innovators, generics companies, and public interest groups do not.
This is no accident. When Congress established the trade negotiating system, it exempted the Trade Representative from requirements of an open government law that was enacted to prevent agency capture, the Federal Advisory Committee Act (FACA). FACA requires transparency, a limited term length for industry advisory committees, and balanced membership on those committees. The trade advisory committee on IP does not have balanced membership. It is not subject to public oversight. And it has an extended term limit, at the discretion of the USTR. Other open government laws also don’t apply—the USTR exempts itself from the Freedom of Information Act (FOIA) by claiming a national security exemption, and the Administrative Procedure Act (APA) doesn’t apply to international lawmaking. As a consequence, the U.S. role in international IP lawmaking is captured through one-sided industry advice.
The USTR is supposed to be exporting US IP law. But what the USTR exports is not US law. The USTR paraphrases US law; it doesn’t export our statutes. This process allows information capture to have substantive consequences.
The paraphrasing USTR sends out is worse than our law. It’s less balanced, and it’s missing things. In places, the USTR misrepresents that one side of a current circuit split is the authoritative word on issues that deeply divide domestic constituents.
These skewings and omissions are not an accident. Some are directly requested by the IP advisory committee—you can see the requests in past advisory committee reports on other free trade agreements. Others are the result of the USTR’s failing to consult public interest, academics, or opposing industries, who would point out what must be included, what’s wrong, and which omissions matter.
Balanced advice is necessary at the level of the text. The USTR recently conducted a series of “stakeholder phone calls,” where it takes questions on broad policy issues. These calls are transparency theater, not transparency. They lump together stakeholders on an impossibly wide range of issues—from dairy to textiles to IP. Discussions are high-level, where many of the problems with USTR’s policies are textual problems. The devil, in law, is very much in the details.
The USTR is captured in other ways, too. There is a significant revolving door problem. USTR negotiators come from and leave for employment in the same IP industries that sit on its advisory committee. But the crux of the problem is that nobody outside of the advisory committees sees the text.
This is why the TPP leak is so important: it levels the playing field. It lets those who aren’t on the advisory committees, like me, find and point to misrepresentations the USTR is making. If there is one thing I’d say to our negotiating partners, it’s this: find yourself a good U.S. lawyer who can tell you what is actually in U.S. IP law. And let them read what you’re negotiating.
Our domestic IP law is the result of democratic political process. Even if that process has been subject to significant collective action problems, it still shows compromise. Constituents on opposing sides of an IP issue arrive at legal meaning through statutory and regulatory compromise, and litigation. Courts play an important role in reinserting balance into the system. The international agreements we negotiate and sign are produced by a closed and captured process. What little balance we achieve domestically is not what we are sending abroad.
This approach will have consequences. As many rightfully point out, it will harm developing countries. But it will also harm domestic constituents. Google now makes over 50% of their profits overseas, and we export copyright law that will make it more difficult for them to operate abroad. What’s more, the Internet is global—digital copyright law made abroad affects online content available to people here. And the law the USTR exports affects our policymaking process at home. It binds us to detailed IP law created by advising incumbents. Deviations from that law may result in threats of trade sanctions.
Killing fast track is one way to change the system. If fast track is stopped, Congress will have much more input into the trade process. It will be able to amend trade agreements. But this is a blunt instrument, and it might kill international trade. A more tailored combination of changing the advisory system, giving the USTR precise and enforceable negotiating objectives, and increasing transparency could produce the changes we need. This is why I signed the law professors’ letter calling for transparency in trade, issued today. One leak won’t fix things, but it’s certainly a start.
Sunlight is the best disinfectant. Many thanks to Wikileaks for doing what we rightfully expect our government to do.
posted by Fred Tung
Trade law should not allow countries to insist on a regulatory nirvana in cyberspace unmatched in real space.
Reading Anupam Chander’s The Electronic Silk Road has been a real treat, and thanks to the folks at Concurring Opinions for organizing this terrific online symposium and including me. The book offers a wide-ranging and insightful discussion about global electronic commerce and its regulation and management. Anupam proposes general principles—rules of the road, essentially—to guide policymakers in this process of regulating and managing global e-commerce. The very first principle introduced in the book–the quotation above captures its essence–is that of technological neutrality: To keep cybertrade free and open, the online provision of a service should not be subject to more onerous regulatory burdens than its offline counterpart.
I wish to focus on this first principle. It seems a balanced and uncontroversial prescription. Why should local regulators saddle online service providers with heavier regulatory burdens than the local bricks-and-mortar competitors? The specter of protectionism lurks!
For me, Anupam’s technological neutrality principle is insufficiently ambitious with respect to the possibilities for effective regulation of e-commerce. Anupam’s concerns are free trade concerns, with which I am sympathetic. At the same time, though, e-commerce may actually be able to do better than brick and mortar on a number of important regulatory fronts, but technological neutrality gives up on those possibilities. It relieves the pressure to pursue more efficient regulation in cyberspace.
posted by Haochen Sun
The Life of Pi presents an epic journey that a boy survives by maximizing spiritual strength in the most adverse circumstances. Called Pi, the boy harnesses curiosity, spirituality, and love to go through his adventurous “international” journeys through religions, cultures, and most notably nature with a stormy ocean.
In his new book The Electronic Silk Road: How the Web Binds the World in Commerce, Anupam Chander also narrates an epic journey that we must embark on in the digital age. Skillfully written with elegant prose, the book explores complex challenges posed by culture, politics, and technology associated with trade in information services.
As a boundless venue hosting trade in services, cyberspace turns out to be the ocean that Pi crossed. According to Anupam, it has enormous barriers blocking the freedom of trading information services in the global context. Culture matters. While some information services are totally fine in western societies, they may be seen as hostile to Islamic beliefs. Politics matters. It has resulted in information suppression in certain authoritarian countries. Technology matters. It facilitates the growth of information services. But it has been used to block trade in information services.
The great firewalls that exist in the electronic silk road best illustrate the difficulty of promoting trade in information services. As mighty as the storm and waves that Pi suffered on the ocean, they are utilized by repressive regimes to monitor, filter, and even shut down the Internet. In 2010 Google withdrew its operations from mainland China. This incident, as I understand from reading Anupam’s book, is a shipwreck as serious as the one that Pi remembers as the darkest day of his life. But it is also a shipwreck similar to the one that Pi regards as a new journey into knowing himself, other beings with him, and the world or nature at large.
On the one hand, Google’s retreat sounded the loudest alarm to the protection of freedom of information in repressive regimes. Nearly 1.3 billion Chinese citizens as well as many other fellow human beings are subject to cyberspace information suppression by authoritarian regimes. As Anupam bluntly reminds us, “[w]hen allied with willing Internet service providers, websites, software providers, and financial intermediaries, a government can gain an omniscience heretofore unknown.” In the digital age, it is the cross-border information services that supply state-of-the-art technologies and abundant financial resources to the authoritarian regimes.
On the other hand, the Google incident calls for immediate and long-term interventions in order to reshape cyberspace as a sphere free of uncivilized surveillance. This journey to information freedom is, indeed, as arduous as the one that Pi experienced across the ocean and continents. Religion, language, imagination, dignity, and even capacity for love all play an important part contributing to Pi’s triumph. The same applies to the journey toward information freedom. After all, people subject to information suppression live with (or without) different religions and speak different languages. Therefore, the capacity for a concerted effort to empower human dignity and love to address information suppression varies significantly across the world. Toward the end of book, Anupam hints that the World Trade Organization, an international institution that governs global trade both in goods and services, might be of little help to resolve this issue. Without any competent international organizations charting the map, the journey to the heaven of information freedom is destined to be a long and tricky adventure.
Reading The Electronic Silk Road together with The Life of Pi prompted me to think about issues that go beyond information suppression existing in repressive regimes. I realized that there are two major issues looming large in the digital age. While we enjoy the unprecedented freedom, convenience, and entertainment that digital technology can bring to us, we must ponder the dark side of digital technology and how the law should tackle it.
First and foremost, we can identify and understand the ways in which the ubiquity of information services can spawn profound problems. The Life of Pi conveys problems of this kind: hostility toward another religion and culture; indifference to other human beings deemed as inferior; and unwillingness to reciprocate others’ good deeds (Richard Parker, the tiger who has a human name, runs into the nearby jungle without a glance back). All these problems remain for Pi, although he has miraculously made it to shore. Online information services have caused similar problems. For example, the websites hosting information services are rife with fraud. Shortly after I posted an advertisement on Craigslist for subleasing my apartment last fall, I received several emails through which the senders attempted to persuade me to deposit money into their bank accounts before they took over the lease. After doing a bit research about online fraud, I could not help asking myself why there are so many people who choose fraud as their jobs.
Thus, digital technology is a double-edged sword. It promotes free flow of information and provides the social glue to bind many people together to wage revolutions against repressive regimes (e.g., the Jasmine Revolution). However, it also wields the power to alienate many people from the social network of direct interactions, leaving them increasingly alone in their spaces of egoism. Today, the majority of people on the subway spend much of their time using their smartphones or tablets. They appear in the tangible public spaces, but they confine themselves to those machines connected with the Internet, enjoying the private fun of checking Facebook or Twitter, playing electronic games, reading news, shopping online, or watching YouTube videos. Digital technology has facilitated widespread use of emails and text messages, further reducing the occasions for face-to-face conversations, greetings, or smiles. Thus, these trends raise the question whether digital technology promotes engagement with others or reinforces the individual quest for solitude. A new book by Sherry Turkle, Alone Together: Why We Expect More from Technology and Less from Each Other, has a comprehensive and nuanced discussion about this tangled issue.
How should the law tackle the double-edged nature of digital technology? Law is critically important in this regard, because it informs people of what they can and cannot do. Anupam teaches us that core to the law regulating trade mediated via cyberspace is the protection of “the right of individuals to share and receive information.” This core right prioritizes the “delivery and consumption” of information “regardless of frontiers” (p.202). His novel proposal that combines globalization together with harmonization of laws serves the full realization of this right.
But can celebration of the individual right to share and receive information offer means by which we can deal with the alienating effect of digital technology? In other words, does the language of rights really increase the consciousness of sharing information as it purports to? To some extent, it does. Anupam proves this with many vivid examples, particularly the Jasmine Revolution in which sharing information about freedom and democracy was the focal point. But as I discussed earlier and others’ works have proven, digital technology has also driven an increasing number of people to withdraw from traditional means of communication and confine themselves to an egoistic world of isolation.
I believe the language of responsibility can play a big part in dealing with this problem. In my recent article entitled Copyright and Responsibility, I point out that law “regulates human affairs through rules that require people to enjoy their freedoms and exercise their rights in responsible ways.” Responsibilities always come together with rights. Without the infusion with responsibilities, rights are meaningless. Persons are not only individuals but also social members of communities, countries, and the whole world. As social members, persons must not single-mindedly pursue only the realization of their individual rights. Rather, they should also constantly ask what responsibilities they should take on and how they can fulfill them in their social membership.
Anupam does mention the importance of responsibility. For example, he urges that Internet service providers follow the “Do No Evil” responsibility, which requires them not to collaborate with repressive regimes that suppress the free flow of information. Indeed, this responsibility is crucial. But should we also ask Internet service providers to take on more responsibilities to encourage people to spend slightly less time using computers, smartphones, or tablets and slightly more time interacting with others in various ways? In this sense, Internet service providers may have a responsibility to cultivate a healthy environment and culture for human interactions. A follow-up question is whether individuals should have the responsibility to spend slightly more time paying attention to others and their communities via computers, smartphones, or tablets.
Both The Life of Pi and The Electronic Silk Road prompt me to think more about the problems in the human world. The Life of Pi teaches me how a person can grow and mature through overcoming tough challenges and even evils. Anupam’s The Electronic Silk Road teaches me how globalized human societies can continue to flourish through overcoming the obstacles caused by national boundaries and the self-centered energy embedded in each human being. Both The Life of Pi and The Electronic Silk Road celebrate the beauty of human spirituality and its power to deter selfishness and even evil.
posted by Graeme Dinwoodie
In The Electronic Silk Road: How the Web Binds the World Together in Commerce, Anupam Chander has helped to illuminate any number of debates that surround the growing trade in online information services (a phenomenon that he calls “net-work”). The range of legal and political issues implicated by trade in online information services is vast and some are quite arcane. Yet, Chander brings them together beautifully in a wonderfully accessible book that is very readable without being simplistic. He does not purport to offer a single solution to the challenges of trade in online information services. (Indeed, I would be suspicious of anyone hawking a single solution to what is an incredibly complex problem.) Instead, he suggests a framework for recalibrating the balance between local and international norms (and institutions) in ways that take account of the special features of online commerce (and online social interactions, for Chander is continually alert to the ways that trade and commerce can positively contribute to broader social policy objectives). Chander recognises that to understand the complexity of regulating (or de-regulating) the provision of online services, one has to take account of any number of institutions or devices: thus he dissects rules on conflicts of law (jurisdiction, choice of law, and recognition and enforcement of judgments), and international economic law (most notably GATS), while also taking due account of private ordering by large online players and the global power of consumer pressure. He paints a messy picture, but it is messy because it is rich. One has first to accept that messiness and complexity, in order to address the problems of activity that (arguably) simultaneously occurs nowhere and everywhere.
Perhaps the biggest single contribution that Chander makes is to suggest that these disparate legal devices can be considered through a single analytical framework, which he develops using a number of core propositions and concepts. The most important of these, which I discuss below, is the concept of “glocalisation” (not new, but adopted and adapted by Chander) and harmonisation (also not new, of course). The framework does not suggest any concrete solutions (with a couple of exceptions). But that would be too much to expect. Nor will it resolve some of the most acute tensions between international norms and local (national) sovereignty. But that would be too much to ask. It does ask us to think differently about how to address those tensions.
It is the interaction of glocalisation and harmonisation that is at the heart of the book, and on which I will focus my post. The core proposition that Chander advances is “Harmonise where possible, and glocalize where necessary.” (p 191). By this proposition, I read (based on his uses throughout the book rather than how I would use the terms, as discussed below) to mean that we should strive for global norms so as to take advantage of the efficiencies (and other social benefits) of universalization, but allow local (mostly national) norms to apply where important to preserve important values on which local communities may disagree (provided such values are broadly consistent with fundamental international norms, such as human rights commitments). In some respects, this is not a radical proposition. Most of international law consists of calibrating the balance between the national sovereignty and international norms.
However, in two senses Chander’s proposal is quite radical.First, he recognises this tension pervades any number of legal rules and institutions, not just public international law. Thus, he seeks to apply his basic tenet to conflicts rules, as well as rules that facilitate global transactions. This is radical insofar as it is not the starting point for conventional private law analysis generally. Chander is not alone.
posted by Anupam Chander
Last week, Foreign Affairs posted a note about my book, The Electronic Silk Road, on its Facebook page. In the comments, some clever wag asked, “Didn’t the FBI shut this down a few weeks ago?” In other venues as well, as I have shared portions of my book across the web, individuals across the world have written back, sometimes applauding and at other times challenging my claims. My writing itself has journed across the world–when I adapted part of a chapter as “How Censorship Hurts Chinese Internet Companies” for The Atlantic, the China Daily republished it. The Financial Times published its review of the book in both English and Chinese.
International trade was involved in even these posts. Much of this activity involved websites—from Facebook, to The Atlantic, and the Financial Times, each of them earning revenue in part from cross-border advertising (even the government-owned China Daily is apparently under pressure to increase advertising) . In the second quarter of 2013, for example, Facebook earned the majority of its revenues outside the United States–$995 million out of a total of $1,813 million, or 55 percent of revenues.
But this trade also brought communication—with ideas and critiques circulated around the world. The old silk roads similarly were passages not only for goods, but knowledge. They helped shape our world, not only materially, but spiritually, just as the mix of commerce and communication on the Electronic Silk Road will reshape the world to come.
October 28, 2013 at 5:46 pm Posted in: Consumer Protection Law, Cyberlaw, First Amendment, Intellectual Property, International & Comparative Law, Privacy, Privacy (Consumer Privacy), Privacy (Electronic Surveillance), Symposium (The Electronic Silk Road) Print This Post No Comments
posted by UCLA Law Review
Volume 61, Discourse Discourse
October 15, 2013 at 7:05 pm Posted in: Civil Rights, Constitutional Law, Current Events, Economic Analysis of Law, Financial Institutions, International & Comparative Law, Law Rev (UCLA), Politics Print This Post No Comments
posted by Jaya Ramji-Nogales
In recent years, advocates and scholars have made increasing efforts to situate undocumented migrants within the human rights framework. But a closer look at international human rights law reveals that it is extremely limited in its protections of the undocumented. My draft article, Undocumented Migrants and the Failures of Universal Individualism, takes that failure as a starting point to launch a critique of the universal individualist project that characterizes the current human rights system. It then catalogues the protections available to undocumented migrants international human rights law, which are far fewer than often assumed. The paper demonstrates through a detailed analysis of relevant law that the human rights framework contains significant conceptual gaps when it comes to the undocumented. It concludes by stepping away from human rights law and offering a radically new approach to protecting undocumented migrants and other vulnerable populations.
This paper advances one of the first serious critiques of international human rights law. Though legal scholars have presented critical perspectives on domestic law for over thirty years, few academics have applied these critical methods to international law. The dearth of critical scholarship on international human rights law in particular is striking. This draft article begins to fill that gap by exploring the politics and power interests that underlie international human rights law. It describes the limitations of the universal individualist approach to human rights, highlighting the ways in which false universalisms can obscure dominant power structures.
posted by Zvi Triger
When I hear about American supporters the new Russian homophobic legislation (or, for that matter, about President Putin and his aides who initiated such crazy legislation, which prohibits, among other things, even expressing tolerance towards LGBTs), I can’t help but recall a New York Time article from last year titled Homophobic? Maybe You’re Gay, which claimed that there is “empirical evidence of a connection between homophobia and suppressed same-sex desire.”
August 29, 2013 at 11:50 pm Tags: homosexuality, Russia, sexuality, Vladimir V Putin Posted in: Criminal Law, Culture, Current Events, International & Comparative Law, LGBT, Politics, Uncategorized Print This Post 2 Comments
posted by Jaya Ramji-Nogales
According to recent news reports, Edward Snowden, the whistleblower who leaked documents revealing the scope of the National Security Agency’s surveillance program, has applied for political asylum in at least twenty-one countries. Though his applications have not been made public, Snowden has received at least three offers of asylum: from Bolivia, Nicaragua, and Venezuela. The proffered grounds for these asylum grants have varied from Bolivian President Evo Morales, who presented it as a “fair protest” for preventing his presidential airplane from entering the airspace of several European countries; to Venezuelan President Nicolas Maduro, who saw a need to protect “the young American” against “persecution from the empire“; to Nicaraguan President Daniel Ortega, who remained vague on the details.
None of these explanations bears much relation to international refugee law, which, though rarely an arm’s length from politics, does require some rigorous legal analysis. To be fair, each country has the right to grant asylum based on their own domestic law, which may be more generous than international refugee law standards. (Though the terms “asylum” and “refugee status” are often used interchangeably, in the United States, the former technically refers to domestic law and the latter to international law.) But given the legitimacy that the international legal standards might afford a claim like Snowden’s, it’s worth attempting a more thorough analysis of his asylum claim.
posted by UCLA Law Review
Volume 60, Issue 5 (June 2013)
|First Amendment Constraints on Copyright After Golan v. Holder||Neil Weinstock Netanel||1082|
|Intraracial Diversity||Devon W. Carbado||1130|
|When to Overthrow your Government: The Right to Resist in the World’s Constitutions||Ginsburg et al.||1184|
|Interbank Discipline||Kathryn Judge||1262|
|A Proposal for U.S. Implementation of the Vienna Convention’s Consular Notification Requirement||Nicole M. Howell||1324|
June 30, 2013 at 4:01 am Posted in: Civil Rights, Financial Institutions, First Amendment, Intellectual Property, International & Comparative Law, Law Rev (UCLA), Politics, Race Print This Post No Comments
posted by Gerard Magliocca
This is the first of a series of posts co-authored with Professor Mohamed Abdelaal (of Alexandria University) on the status of constitutional reform in Egypt. Massive protests are planned on June 30 to mark the first anniversary of President Mohamed Morsi’s inauguration and to express anger at the way in which the new Egyptian Constitution was drafted and at what the Constitution says.
Dissatisfaction over the 2012 Constitution can be traced back to the moment when a Constituent Assembly was elected by Parliament in summer 2012 to draft a new constitution after the 2011 Revolution. The Assembly, which was composed of 100 members, was heavily dominated by Islamists. 24 out of the 39 parliamentary seats were filled by Islamic parties and 5 of the independent seats were reserved for Al-Azhar Institute, a prominent Islamic institute in Egypt. Furthermore, many of the independent members were known sympathizers of the Islamic camp. Accordingly, the drafting process witnessed several boycotts from the liberal bloc and was seen by many political figures as illegitimate. In a subsequent ratification referendum, the Constitution was approved by only 63.8% with a turnout of only 33%, which was not a decisive endorsement. It was not only the suspected drafting process that made many Egyptians not to cheer the new constitution; however, it is also its content, which gives religious leaders a role in judging the validity of legislation, grants broad powers to the president without making him accountable for his misconduct, and puts the independence of the judiciary in jeopardy. We will have more to say about these provisions in our other posts.
posted by Jaya Ramji-Nogales
In 2010, Samuel Moyn published “The Last Utopia: Human Rights in History“, a book that provoked its readers to critically engage with questions about when human rights emerged as an agenda on the international political scene. Moyn’s suggestion that this was a strikingly recent development (dating to 1977) raised deeper questions about the politics underlying human rights and its successes in displacing alternate utopian visions. Last year, Moyn published a book review of Jenny Martinez‘s “The Slave Trade and the Origins of International Human Rights Law” and Kathryn Sikkink‘s “The Justice Cascade: How Human Rights Prosecutions Are Changing World Politics“, criticizing both books for insufficiently acknowledging the limitations of international human rights law as an avenue for social and political reform.
This month’s Harvard Law Review contains two new and worthwhile contributions to the debate. Philip Alston begins with a review of Jenny Martinez’s book, noting the importance of determining the origins of today’s human rights system as well as the lack of consensus around the answer to that question. Alston notes the ways in which Martinez’s book contradicts Moyn’s thesis, situating each author within a typography of historiographical debates. He critiques both, noting that they present different definitions of human rights that carry buried analytical assumptions, and suggests that a meaningful history should recognize that human rights is a polycentric enterprise. In other words, historians of human rights must examine ideas, social movements, legal traditions, and institutions in order to understand where human rights came from and where it is headed.
Jenny Martinez responds to Alston’s review, presenting a more nuanced view of her causal arguments than her critics, and taking on Moyn in the process. She agrees with Alston that human rights is polycentric, and suggests that Moyn’s definition of human rights leaves out important aspects of the larger picture. Martinez defends herself against claims that a pro-human rights bias infuses her work, and argues that an accurate account of human rights prior to 1977 is crucial in understanding the role of international law today and drawing lessons for current legal institutions.
The books and articles are worth reading for the rich factual analysis alone. But there’s more to human rights history than that. This is one of the most provocative debates in recent years about the analytical framework through which we understand human rights. As Alston notes, “[t]here is a struggle for the soul of the human rights movement, and it is being waged in large part through the proxy of genealogy.”
posted by Charles Whitehead
Living in Beijing underscores the importance of change and adaptation. There is a noticeable drop in the amount of processed sugar in foods, reflecting local (and healthier) tastes. Virtually every restaurant delivers, including McDonald’s (which raises the question, if you’re going to order delivery, why McDonald’s?). And, most particularly, I recently joined the thousands of Chinese students and pensioners who weave in-and-around traffic on electric battery-powered mopeds. It is a great way to get around the city (even if some of the pensioners have a tendency to cut you off).
The same focus on change arises in the capital markets. A person who owns or sells a security is presumed to own or sell the financial risk of that security. By selling shares, for example, the costs and benefits of those shares—the rise or fall in share price—are understood to run with the instruments being sold. Changes in the capital markets, however, have begun to call that presumption into question. Increasingly, market participants can use new trading methods to sell instruments to one person, but transfer their financial risk to someone else. The result is greater complexity and new challenges to regulation and the regulators.
To what extent should the securities laws adjust to reflect those changes? The answer largely turns on the question of “identity.” Moving from modern-day Chinato to ancient Greece, the Greek historian Plutarch identified the question in his story of Theseus, the mythical king of Athens. For many, Theseus is known for slaying the Minotaur, a half-man, half-bull monster that devoured children sent to Cretein tribute to King Minos. According to Plutarch, after Theseus returned to Greece, his boat remained in Athensharbor for centuries as a memorial to his bravery.
posted by Deven Desai
Sometimes fortune smiles upon you. I met Mark Weiner when we started law school. My life and my work is much better for it. Mark is a scholar and more. He obtained his B.A. in American Studies from Stanford, his J.D. from Yale, and his PhD in American Studies from Yale.
His most recent project is his excellent book, The Rule of the Clan. Ambassadors, professors from all around the world, members of the 9/11 commission, and publishers have embraced the book. Mark argues, and I think rather well, that the state has a quite important role to play, and we ignore that to our peril. Publishers Weekly has said:
A nuanced view of clan-based societies … Weiner’s argument is a full-throated defense of the modern centralized state, which he sees as necessary to protect human rights: “In the face of well-intended but misguided criticism that the state is inimical to freedom, we must choose whether to maintain the state as our most basic political institution or to let it degrade.” An entertaining mix of anecdote and ethnography.
The New York Journal of Books has called the book “accessible, mesmerizing, and compelling.”
I wanted to get into how Mark came up with the project, why it matters, and, for the writers out there, the process of writing about such a complex subject but in a way that is accessible to a general audience. So I asked Mark whether we could do a Bright Ideas interview. He graciously agreed.
Mark, the book is great. I want to jump in and ask, What do you mean by “clan”?
Thanks, Deven. In my book, I consider clans both in their traditional form, as a subset of tribes, but also as a synecdoche for a pattern by which humans structure their social and legal lives: “the rule of the clan.” Clans are a natural form of social and legal organization. They certainly are more explicable in human terms than the modern liberal state and the liberal rule of law. Because of the natural fact of blood relationships, people tend to organize their communities on the basis of extended kinship in the absence of strong alternatives.
So why clans now?
Two reasons. First, the United States is involved militarily in parts of the world in which traditional tribal and clan relationships are critical, and if we don’t understand how those relationships work, including in legal terms, we have a major problem.
Let me give you an example from Guantanamo. In the book, I tell a story of a college friend who was in charge of the team there interrogating detainees from Saudi Arabia. (I should note that my friend finds torture morally repugnant and against the national interest, as do I, and that she has advocated for this view in meaningful ways.) Over the course of her work, my friend realized that because of the first-name/last-name structure of the detainee tracking system, basic information about detainee tribal affiliations hadn’t been gathered or had been lost. This meant, among other things, that we couldn’t fully appreciate the reason why some of these men had taken up arms against us in the first place—for instance, because the United States had become embroiled in their centuries-long, domestic tribal war with the House of Saud.
Our ignorance about these issues is what I call the contemporary “Fulda Gap.” Our lack of knowledge about more traditional societies hinders our ability to understand the motivations of those who oppose us and leaves us vulnerable—and, even more important, it diminishes our ability to cooperate with our friends and to assist liberal legal reformers abroad in ways that are both effective and ethical.
The second reason to study clans, and ultimately for me even more important than the first reason, has to do with our own political discourse here at home. You could say that I became interested in clans because of widespread ideological attacks against the state within liberal societies—that is, attacks on government. By this I mean not simply efforts to reduce the size of government or to make it more efficient. Instead, I mean broadside criticisms of the state itself, or efforts to starve government and render it anemic.
I think you are saying there is something about clans that helps us organize and understand our world. What is it?
It’s often said that individual freedom exists most powerfully in the absence of government. But I believe that studying the rule of the clan shows us that the reverse is true. Liberal personal freedom is inconceivable without the existence of a robust state dedicated to vindicating the public interest. That’s because the liberal state, at least in theory, treats persons as individuals rather than as members of ineluctable status or clan groups. So studying clans can help us imagine what our social and legal life would become if we allow the state to deteriorate through a lack of political will.
By the way, the idea that the state is somehow inimical to freedom—that we gain individual freedom outside the state, rather than through it—is hardly limited to the United States. It was a core component of Qaddafi’s revolutionary vision of Libya. Or consider Gandhi, who advocated for a largely stateless society for postcolonial India. Fortunately for India, his vision wasn’t realized. Instead, we owe the prospects for further liberal development there to the constitution drafted by B. R. Ambedkar.
Hold on. From Indian independence to Libyan revolution seems a long jump. Can you help me connect the dots?
March 19, 2013 at 1:47 pm Tags: clans, Constitutional Law, international law, rule of law, terrorism, War on Terror Posted in: Articles and Books, Bright Ideas, Constitutional Law, History of Law, International & Comparative Law, Jurisprudence Print This Post One Comment
posted by Deven Desai
What is happening with the world? Is it falling apart? Is the state the problem? Is everything to big? Is everyone better off breaking into small groups? Mark Weiner has answers in his book The Rule of the Clan. Understanding clans helps us understand the problems and relationships among individual liberty, the state, domestic policy, and foreign policy.
Mark Weiner is one of the best thinkers I know. I will note that Mark is one of my dearest friends as well. Mark has authored three books. The first two have won awards. The latest, Rule of the Clan, is, to me, yet more impressive. I will be posting more about this book. But for now, here is Mark on the Brian Lehrer Show.
Review of Abner S. Greene, Against Obligation: The Multiple Sources of Authority in a Liberal Democracy
posted by Andrew Sutter
Abner S. Greene, Against Obligation: The Multiple Sources of Authority in a Liberal Democracy (Harvard University Press 2012)
Don’t be alarmed by his book’s sweeping title: Abner Greene isn’t suggesting that we chuck Contracts from the law school syllabus. Rather, he has three particular sorts of supposed obligations in his crosshairs: a moral obligation always to obey the law (also known as political obligation), an obligation to defer to “the past” – be it “original meaning” or simply judicial precedent – in constitutional jurisprudence, and an obligation by public officials to be bound by the Supreme Court’s reading of the Constitution. A surprising number of theories propose the existence of such obligations in “content-independent” form – and Greene refutes them methodically, even relentlessly, one after another. One of the achievements of this book is that he manages to sound more reasonable than radical while doing so.
But while the book’s subtitle, “The Multiple Sources of Authority in a Liberal Democracy,” suggests a broader viewpoint, this book is embedded within an entirely American discourse. A reader outside the US, or even one of a comparativist bent within it, might well wonder whether Greene’s arguments are as airtight as they seem, whether they’re as controversial as he may think they are, or even what sort of philosophy this kind of book is really about.
posted by Lea Shaver
Are the costs and benefits of copyright protection roughly the same in English and in Zulu? Or is copyright law’s impact radically different from one language to another?
Copyright protection gives authors the exclusive right to market their works. This has the benefit of channeling profits back to authors, enhancing the financial incentives to create new works. But it also has the cost of limiting competition, inflating prices for consumers, and restricting public access to existing works.
Copyright scholars have extensively debated these costs and benefits. But we have not yet done much thinking about how the cost-benefit calculus might play out for different languages.
That project lies at the heart of my current work-in-progress, which advocates targeted copyright reforms to promote publishing in lesser-spoken languages.
From an economic perspective, the publishing market is fundamentally different from one language to another. English books can be marketed to an enormous and wealthy global audience. The audience for Zulu works, however, is 1% as large and has significantly less disposable income.
Scholars continue to debate the relative effectiveness of financial versus nonfinancial incentives for authorship. But there is no doubt that the incentives are powerfully present for English-language works. That does not appear to be true for works in Zulu.
According to recent data, 77% of books sold within South Africa are in English, though only one in ten South Africans speaks English at home. The vast majority of South Africans speak African languages such as Zulu. Yet books in all African languages combined account for only 11% of the South African publishing market. Of African language book sales, 89% are textbooks, subsidized by government purchasing.
The copyright system that has so effectively incentivized the production and distribution of works in English has not produced equivalent benefits in Zulu. The costs of copyright protection – including higher prices and barriers to translation – are also particularly burdensome for the Zulu-speaking community.
In theory, the costs of copyright protection may outweigh the benefits in many linguistic communities characterized by small size and low wealth. I’m working now on some case studies to see whether facts on the ground support that prediction.
If so, my suggestion is not to change copyright law generally, but to adjust the rules for certain languages. There are thousands of different linguistic communities in the world, each as unique as the various expressive works that copyright law protects. A one-size-fits-all regime is unlikely to be ideal.
Reforms to strike the right balance could be implemented at the level of national policy making. By treating different languages differently, countries may be able to improve publishing in languages such as Zulu without prejudicing the interests of authors and publishers in the dominant markets.
In a series of posts during my month as a Co-Op guest blogger, I’ll explore how we might structure such reforms and other issues raised by this project.
February 3, 2013 at 1:02 pm Tags: copyright, languages, local language limitations, publishing, South Africa, translation Posted in: Culture, Intellectual Property, International & Comparative Law, Uncategorized Print This Post 5 Comments
posted by UCLA Law Review
Volume 60, Issue 2 (December 2012)
|The Battle Over Taxing Offshore Accounts||Itai Grinberg||304|
|The Structural Exceptionalism of Bankruptcy Administration||Rafael I. Pardo & Kathryn A. Watts||384|
|Patients’ Racial Preferences and the Medical Culture of Accommodation||Kimani Paul-Emile||462|
|“Not Susceptible to the Logic of Turner”: Johnson v. California and the Future of Gender Equal Protection Claims From Prisons||Grace DiLaura||506|