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Foreign Policy Implications for China’s “Foreign-Related ‘Rule of Law’”
No full textIn 2020, the Chinese Communist Party (CCP) launched the “foreign-related ‘rule of law” (FROL) reform, a reform that purports to modernize the intersection between Chinese domestic law and foreign and international law. Like many of China’s outward-facing initiatives, the FROL is more a loosely defined political discourse than a clear policy. Nonetheless, this article argues that the FROL may have implications for the role of Chinese law in China’s evolving foreign policy engagements. There are two overlapping contexts for the FROL: the first is purportedly defensive and reactive in nature and pertains to the US-China trade war and the exercise of lawfare in shaping that trade war. The second context is more assertive and proactive as the CCP proposes “Chinese-style modernization” for developing states around the world. Although Chinese-style modernization is more a creature of policy than formal law, law is becoming an important element in China’s approach. Against this backdrop, the FROL seeks to promote China’s definition of “rule of law” (fazhi) overseas and to integrate Chinese law into foreign and international law. Whereas the FROL marks a new stage in China’s legal development, its consequences for US-style rule of law and democratization are mixed. On the one hand, China explicitly proposes an alternative to that of the United States but, on the other hand, alarmist reactions need to be tempered by the empirical realities of China’s capacity deficiencies
China\u27s Violation of Refugee Rights: Repatriation of North Korean Refugees
Get PDFThe concept of the North Korean defector is so pervasive that it tends to eclipse the legal reality: she is also a refugee. While the urgent economic prerogative for defecting has waned since the widespread North Korean famine of the 1990s, North Koreans continue to escape for various reasons, such as seeking a better standard of living, enjoying freedom of movement, and pursuing freedom of political and religious affiliation. The Democratic People’s Republic of Korea (DPRK) legislates serious, and even fatal, retribution for the crime of defecting. Yet, Chinese authorities refuse to acknowledge the refugee sur place status of the thousands of North Korean escapees that reach its borders. In turn, the Chinese government continues to deport refugees back to North Korea, where they are likely to face human rights abuses. In forcibly repatriating North Korean refugees, China has violated the non-refoulement principles in the 1951 UN Refugee Convention and Protocol and the UN Convention against Torture, treaties to which China is a party
Toward a Utah Intentionally Created Surplus Program
Get PDFThe Colorado River Basin continues to face a now two decade-long drought sparked by the drastic effects of climate change on the region. Climate forecasting predicts that the adverse effects of climate change will only increase in severity in years to come. These effects have led federal, state, tribal, and private actors operating in the basin to search for innovative and effective solutions to the significant water scarcity problems that will persist into the future. A closely linked threat stemming from Colorado River water scarcity is the prospect of a “Compact call” on Upper Basin water by the Lower Basin states under the Colorado River Compact in the not-so-distant future. To proactively address this threat, as well as to improve water conservation efforts in the Upper Basin, this paper proposes that the State of Utah look to the Lower Basin Intentionally Created Surplus (ICS) program to implement a similar program for intrastate water banking and conservation in Utah. In so doing, the paper addresses the relevant pieces of the “Law of the River,” as well as the development of the current drought in the basin and recent stakeholder policy and conservation responses. The paper also examines likely legal and practical uncertainties surrounding a Utah ICS Program. By studying lessons learned from creative and progressive water management by other basin states, Utah can address state water scarcity, comply with Upper Basin Drought Contingency Plan promises, and chart a path for the rest of the Upper Basin
Crumbling Crown Jewels: Addressing the Impact of Recreational Overuse in America\u27s National Parks
Get PDFNational Parks are the “crown jewels” of America. However, in recent years they have become subjected to rampant overcrowding and overuse, so much so that they are being loved to death. The 1916 National Park Service (“NPS”) Organic Act calls for the conservation of “the scenery and the natural and historic objects and the wild life . . . and to provide for the enjoyment of the same in such manner and by such means as will leave [park sites] unimpaired for the enjoyment of future generations.” Due to increased visitation, one of the mandates of the NPS is being trampled. Some parks have taken steps to mitigate the impacts and even limited park access, but more action is needed to ensure parks are protected for future generations
Is It Science or Storytime? Expert Testimony Evaluating Child Witness Credibility in Sexual Assault Cases
Get PDFWhile jurors struggle with determining any witnesses’ credibility, an even more arduous task is determining the credibility of a child victim in a sexual assault case. Due to developmental immaturity, children lack important recall and communication skills, and the well-established procedures of direct and cross examination are ineffective at producing accurate and complete trial testimony. Despite the adversarial system being proven ineffective in these contexts, American courts remain hesitant to admit expert testimony based on established psychology tools. Specifically, courts have questioned the application of Statement Validity Assessments (“SVAs”), to assist jurors in evaluating witness credibility, as they believe such testimony is unreliable and invades the province of the jury. However, using SVAs to assist jurors in evaluating witness credibility is not a radical or new concept, with inquisitorial and some adversarial criminal justice systems outside the United States using them for decades. These expert witnesses conduct SVAs on child witnesses’ pretrial allegations to form an opinion as to the veracity of the witnesses’ truthfulness in those statements and testify to the results in court
Maintaining Due Process By Extending Bristol-Myers Squibb Co. To Federal Class Actions
Get PDFIn 2017, the U.S. Supreme Court issued its seminal decision in Bristol Myers Squibb Co. v. Superior Court of California, subsequently altering the scope of personal jurisdiction and further narrowing its interpretation of specific jurisdiction. Bristol-Myers Squibb Co. held that a state court can only assert specific personal jurisdiction over a defendant when there is a meaningful nexus between the forum state and the claims at issue. The Court purposefully refrained from deciding whether its holding applies to federal courts adjudicating federal class actions. After denying a petition for writ of certiorari to resolve the issue in 2021, the question continues to plague the lower courts.
This Comment provides a comprehensive analysis of how the principles of fair play and substantial justice interpreted by the Court in Bristol-Myers Squibb Co. squarely complement extending its holding to federal class actions. The procedural safeguards outlined in Rule 23 do not adequately shield defendants from the constitutional constraints of personal jurisdiction, and Rule 23 inadvertently provides the strength from which classes derive their power. The heightened strength of the plaintiff class necessitates more than Rule 23’s minimum protections, and Bristol-Myers Squibb Co.’s holding fills the resulting defendant due process gap. Bristol-Myers Squibb Co.’s holding assures defendants of due process, and courts should extend its claim-forum nexus. Accordingly, this Comment concludes that due process requires Bristol Myers Squibb Co. v. Superior Court of California to extend to federal class actions
Maintaining Due Process by Extending Bristol-Myers Squibb Co. to Federal Class Actions
No full textIn 2017, the U.S. Supreme Court issued its seminal decision in Bristol-Myers Squibb Co. v. Superior Court of California, subsequently altering the scope of personal jurisdiction and further narrowing its interpretation of specific jurisdiction. Bristol-Myers Squibb Co. held that a state court can only assert specific personal jurisdiction over a defendant when there is a meaningful nexus between the forum state and the claims at issue. The Court purposefully refrained from deciding whether its holding applies to federal courts adjudicating federal class actions. After denying a petition for writ of certiorari to resolve the issue in 2021, the question continues to plague the lower courts.
This Comment provides a comprehensive analysis of how the principles of fair play and substantial justice interpreted by the Court in Bristol-Myers Squibb Co. squarely complement extending its holding to federal class actions. The procedural safeguards outlined in Rule 23 do not adequately shield defendants from the constitutional constraints of personal jurisdiction, and Rule 23 inadvertently provides the strength from which classes derive their power. The heightened strength of the plaintiff class necessitates more than Rule 23’s minimum protections, and Bristol-Myers Squibb Co.’s holding fills the resulting defendant due process gap. Bristol-Myers Squibb Co.’s holding assures defendants of due process, and courts should extend its claim-forum nexus. Accordingly, this Comment concludes that due process requires Bristol-Myers Squibb Co. v. Superior Court of California to extend to federal class actions
Reforming World Bank Dispute Resolution: ICSID in Context
Get PDFDuring a tumultuous moment in history with shifts in power and politics, international dispute settlement stands at a crossroads. In theory, international dispute settlement should not institutionalize abuses of power, rely upon a monolithic one-size-fits-all model, or be a waste of resources, which will inevitably generate stakeholder dissatisfaction. Rather, dispute resolution should reflect both a commitment to the rule of law and equal treatment that sustains nuanced, fair, and just procedures most likely to provide results of substantive quality. Against this backdrop and with the major reforms concluded in July 2022, this article explores the reality of dispute resolution at the World Bank’s International Centre for Settlement of Investment Disputes (“ICSID”) using an evidence-based, historical lens. Rather than distort ICSID’s past to offer cognitive ease, this article uses primary sources to understand dispute resolution at the World Bank and the broader implications for international dispute settlement and alternative dispute resolution. Using an evidence-based, historical lens to promote an accurate understanding of procedural and substantive distinctions, international investment law and international dispute resolution can facilitate accurate, useful, and responsive reform, rather than letting myopia, manipulation, and mismanaged expectations control the future of international dispute settlement
Panelist, ABA Tax Section May Meeting, Diversity, Equity, and Inclusion in the Workplace and the Impact of Implicit Bias: A Survey of Initiatives and Best Practices in the Legal Profession
No full textLost In Transit: How Enforcement of Foreign Copyright Judgements Undermines the Right to Research
Get PDFThe ease of travel in the globalized, modern world is a double-edged sword for the right to research: while research opportunities are bolstered due to information and data traveling extremely easily in the digital world, the right to research may be undermined by the easy travel of foreign copyright judgments between countries. This article analyzes thoroughly, for the first time, the threats posed to the right to research by private international law instruments on recognition and enforcement of foreign copyright judgments. This article uses a theoretical and doctrinal perspective to analyze the matter, demonstrating that the right to research, aimed at promoting innovation and creativity, is an integral part of, and an important balance within, the copyright paradigm. Since the right to research differs from country to country, it is especially vulnerable at the transnational level and is thus susceptible to abusive use of strategic foreign judgment enforcement proceedings. The article demonstrates that the risks to the right to research are intensified by a threefold bias that benefits the copyright holder while disadvantaging researchers, as the right holder is usually the initiator of the proceedings; has the choice of the forum; and has an incentive to request enforcement of the foreign judgment after it is granted—a bias summarized by the acronym ICE. These risks and vulnerabilities justify serious consideration in light of recent efforts to negotiate international instruments on the enforcement of foreign copyright judgments, especially in an age when national courts grant extraterritorial and even global injunctions in the realm of intellectual property. The article conceptualizes the application of private international law rules and notions to copyright law as akin to a legal transplant within copyright law, highlight the risks of such “transplant”, and demonstrating that private international law rules may not only interfere with internal copyright balances, but also undermine, and even nullify, the right to research. The article then outlines possible policy solutions to address these threats both on the national and international levels and, most importantly, proposes that the discussions on any international instrument on the enforcement of foreign copyright judgments take place under the auspices of the World Intellectual Property Organization (WIPO), a copyright-expert forum that will properly protect the right to research