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Category: International & Comparative Law

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Opportunities and Roadblocks Along the Electronic Silk Road

977574_288606077943048_524618202_oLast 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.

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UCLA Law Review Vol. 61, Discourse

Volume 61, Discourse Discourse

Fighting Unfair Credit Reports: A Proposal to Give Consumers More Power to Enforce the Fair Credit Reporting Act Jeffrey Bils 226
A Legal “Red Line”? Syria and the Use of Chemical Weapons in Civil Conflict Jillian Blake & Aqsa Mahmud 244
Alleyne v. United States, Age as an Element, and the Retroactivity of Miller v. Alabama Beth Colgan TBD
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Undocumented Migrants and the Failures of Universal Individualism

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.

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Putin Gays on the Agenda

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.”

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Snowden’s asylum case: Be careful what you ask for

According to recwhistleent 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.

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Volume 60, Issue 5 (June 2013)

Volume 60, Issue 5 (June 2013)
Articles

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

Comments

A Proposal for U.S. Implementation of the Vienna Convention’s Consular Notification Requirement Nicole M. Howell 1324
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The Egyptian Constitution

Morsi_EgiptoThis 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.

 

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Debating Human Rights History

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 histoslave traderiographical 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.”

(hat tip to Jacob Katz Cogan, whose wonderful International Law Reporter alerted me to the Alston and Martinez articles; cross-posted on IntLawGrrls)

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Theseus’s Paradox – Form and Substance in Evolving Capital Markets

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.

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Bright Ideas: Mark Weiner on his new book Rule of the Clan

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?

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