Rise of Political Populism and the Trouble with the Legal Profession in China

This essay looks into recent efforts by the ruling party in China to tighten control of the judiciary, the lawyers and prosecutors under the slogan of harmonious society in the last couple of years. This reversed the direction of judicial reform under the leadership of Xiao Yang, during his tenure as President of the Supreme People\u27s Court before 2008. The trouble with the legal profession in China, the essay asserts, is not only that it loses its professional autonomy thus its ability to act as a sociopolitical force that is independent from the ruling political party; but also, by virtue of the tightened control, law has become an unattractive channel for widespread social resistance. Political populism is an emerging conservatism that is going currency in China today

From Environment to Energy: China\u27s Reconceptualization of Climate Change

Domestically and internationally, by the first half of 2009 it was already questionable whether the Copenhagen Conference could achieve anything. Anthony Giddens warned-in an otherwise inspiring book on climate change-that doomsday is no longer a religious concept, a day of spiritual reckoning, but a possibility imminent in our society and economy. In such a context, it becomes imperative to revisit some of the fundamental issues in the Kyoto Protocol framework. Are timetables and targets really the best way to regulate climate change? Does the current framework create bad politics? Where are the powerful driving forces towards a low-carbon society? This essay is motivated by these fundamental questions. It aims to offer an analytic framework for understanding the policy-making in one of the countries that is a key member of the world\u27s carbon community -China. It tries to expose the organizing conceptual frameworks through which climate change as an issue is defined, understood, and reconciled. In other words, how climate change is conceptualized. A better understanding of the conceptualization process in key countries will shed light on ways to improve the design of the existing international framework. In doing so, this essay joins an increasing body of literature on framing climate change in domestic or international arenas. It is a widely shared view in this body of literature that the United States (before President Obama took power) largely looked at climate change from an economic competitiveness point of view; thus, the Bush administration insisted that India and China have to be included in order for the U.S. to commit itself. On the other hand, the European Union largely regarded climate change from an ethical point of view, thus considering it a duty for the U.S. and EU to reduce carbon emissions. This essay, though in line with this approach, takes a slightly different angle in analyzing China\u27s framing of climate change. It presents two perspectives adopted in the official policymaking processes: one was the negotiation of the Climate Change Convention and the Kyoto Protocol, roughly from 1989 to 2002, when climate change was defined as an environment issue;\u279 the second was post-Kyoto period, from 2003 to the present, when climate change was conceptualized as an energy policy issue. 0 Thus, the essay argues, in the last two decades (between 1989 and 2009) there has been a significant change in China\u27s policy on climate change. One immediate question is: given that climate change is perhaps as closely linked with the environment as with energy, what is the difference? The difference, as will be explained in Section D of Part III of this essay, lies in policy implementation and internal dynamics in China\u27s response to climate change that must be understood in the domestic context. This essay also attempts to shed light on a redesign of the global climate regime after Copenhagen

Textualism in GATT/WTO Jurisprudence: Lessons for the Constitutionalization Debate

Today, the World Trade Organization (WTO) jurisprudence is subject to tremendous controversy, the WTO panels\u27 or Appellate Body\u27s interpretation of a WTO text is often heatedly debated; and yet, there seems not much attention paid to the general methodology of interpretation in the practice of the General Agreement on Tariff and Trade (GATT) and WTO jurisprudence, even in a recent debate over constitutionalization between Petersmann and his critics. In rejecting his human rights approach to constitutionalization, Petersmann\u27s critics, rightfully, warn him that he has failed to appreciate the complex relations between human rights and free trade in the history of European integration and WTO. But they seem reluctant to go further and challenge the foundation of his constitutionalization arguments, i.e., his theory of adjudication. Thus, in spite of its central role in the GATT/WTO jurisprudence, the mythology about textualism remains only half challenged-that the textual approach equals strict interpretation, and following the letters of the WTO agreements is a judicial virtue. What I wish to accomplish in this article is to push the critique one step further by looking into the interpretive methodologies of the GATT/WTO jurisprudence

Revolt against the U.S. Hegemony: Judicial Divergence in Cyberspace

This Article contributes to our understanding of the current state of cyber law. The global perspective demonstrates an almost uniform response to the U.S. law in cyberspace from all of America\u27s major trading partners. In the past, comparative studies tended to focus on a single jurisdiction-typically, the European Union-and compared it with the United States. This approach, informative as it was, significantly understated the gravity of the differences between that jurisdiction and the United States. Fundamentally, it was based on an American-centric outlook with primary interests in building convergence models. In cyberspace, however, this is simply not helpful. In recent years, scholars of the European Union have argued for the Brussels effect, which contended that EU\u27s more strict regulatory approach in cyberspace not only persists but is now followed by many countries outside Europe. The global perspective adopted in this Article follows the direction of the regulatory theories and pushes the logic to its end. By examining cases from five jurisdictions, this Article demonstrates not only that there is divergence in cyberspace regulation but that the United States is a lone outlier in its regulatory approach to the internet, while the other four jurisdictions-the European Union, the Commonwealth countries, Japan, and China-have all adopted a more rigorous regulatory approach. It is a revolt. Part I lays the foundation for the comparison by describing the legal frameworks in the United States. It tracks the development of legal doctrines in two critical areas. First, this Article examines personal jurisdiction over nonresident defendants in defamation and intellectual property cases. Second, it analyzes the jurisprudence of Section 230 of Communications Decency Act (CDA), which provides immunity to digital platforms. Part II then provides a comparison of personal jurisdiction issues in laws and judicial cases in four jurisdictions: the Commonwealth countries, the European Union, Japan, and China. In contrast with the more limited personal jurisdiction doctrines in the United States, the other four jurisdictions made it easier for victims to establish personal jurisdiction and thus have access to courts. Part III tracks legal doctrines on liability of digital platforms in the four jurisdictions. In contrast with the general immunity in the United States under Section 230 of the CDA, all four jurisdictions adopted tort liability for digital platforms. Part IV tracks legal doctrines in global injunctions by courts in the four jurisdictions to show a general move toward more willingness to extend remedy beyond their borders. The global revolt in cyberspace described in this Article is a significant development in the twenty-first century, with critical policy ramifications. Some final thoughts will be discussed in the conclusion

Privacy And National Politics: Fingerprint and DNA Litigation in Japan And the United States Compared

Drawing cases from two related areas of law-fingerprint and DNA (deoxyribonucleic acid) data-this Article proposes a modified framework, built on the Balkin-Levinson emphasis on national politics: First, national politics understood as partisan rivalry cannot account for what I call doctrinal lock-in in this Article, where I will demonstrate that in different stages of American politics-the Lochner era, the New Deal era, and Civil Rights era-courts across the nation ruled predominantly in favor of public data collectors-state and federal law enforcement in fingerprint cases. From the 1990s, when DNA data became hot targets of law enforcement, the United States Supreme Court followed the path of fingerprint law. In other words, what is striking in fingerprint and DNA cases in the United States is not doctrinal flip flop, but doctrinal continuity-despite the change of regimes and dominant parties. Second, the phenomenon of doctrinal lock-in demands reframing the concept of national politics. This Article proposes to redefine national politics as the interaction between the establishment (the regime) and external challenge. The doctrinal lock-in reveals the limited ability or willingness of the establishment to take up the question of privacy in the political process thus respond to the demands from society at large. To illuminate this point, a comparison with a multiparty democracy can be helpful. Conventional comparative law on privacy focus on Continental Europe. However, this Article chooses Japan, an even better example for this purpose because Japan\u27s judiciary is well known for being conservative or weak. In Japan, the notion of privacy came much later than that in the United States-it was established in 1964 by a Tokyo District Court ruling. However, in the 1970s and 1980s, privacy was transformed from a tort law to a constitutional issue. While the transformation was driven by a broad and general constitutional awakening in the Japanese society, privacy became more politically charged when fingerprint became the focal point of agitation in the fingerprinting refusal movement. The movement was spearheaded by the Zainichi Koreans who fought for constitutional recognition of privacy in fingerprints. Litigants were joined by lawyers and bar associations who helped frame their arguments, support groups and journalists who gave voice to their perspectives, as well as historians who dig out the secret connection of fingerprint with Japan\u27s colonial past. The refusal movement became Japan\u27s civil rights movement. In this context, the Supreme Court of Japan recognized fingerprint privacy as a constitutionally protected right in 1995. More recently, a Nagoya district court ruled in favor of a plaintiff who requested police to expunge his fingerprint and DNA data after acquittal. This was an unprecedented ruling in Japan\u27s history. No doubt that the Nagoya ruling is an outlier, but it shows that courts in Japan, under certain conditions, are responsive to social demands, and in doing so, they are open to the high level of protection of privacy on par with European standards. Third, the contrast between the judicial lock-in in the United States and the responsive courts in Japan begs explanations that go beyond the Balkin-Levinson framework. Further studies are needed to understand why the United States is lagging behind in responding to privacy compared with other Western democracies. This Article aims to contribute to this inquiry by proposing a tentative hypothesis in the relationship between national politics and privacy: in Japan, when privacy becomes political, it creates pressure on the establishment, thus forces the judiciary-however conservative it is-to accommodate social demands in order to maintain public trust. By contrast, in the United States, when none of the political parties is willing to take up privacy, privacy remains apolitical, leaving the judiciary shielded from the pressure from society at large

China’s ‘Attitude’ Toward Human Rights: Reading Hungdah Chiu in the Era of the Iraq War

China observers in the United States generally share two observations on China today: that China has made impressive progress in economic development in the past three decades, and that China has maintained a poor human rights record since the 1989 Tiananmen Massacre. On the economic front, China overtook Japan and became the second largest economy in 2010. In a joint study with China\u27s Development Research Center of the State Council, the World Bank recently predicted that even if the Chinese economy grows a third as slowly in the future, it will outstrip the United States in terms of overall GDP before 2030. Along with its growing economy, China has gained more voting power in both the World Bank and the International Monetary Fund (IMF), and has increased its profile in G20 meetings. On the human rights front, both Human Rights Watch and the U.S. State Department reported continuous deterioration of human rights in China. In its 2010 country report on human rights, the State Department noted a negative trend in key areas of China\u27s human rights record, including suppression of civil society, censorship of the Internet, and violation of ethnic minorities\u27 rights. The World Bank also warned in its report that China must adopt an approach that better balances economic and social development to sustain economic growth. Great fear arises, however, when the above two elements are put together. Questions about the ramifications of China\u27s rise and the future of world order are repeatedly raised. Does China represent a totally different set of values? With its newly acquired capacity, will China reshape the global order based on those values? These seem particularly relevant questions given the perplexing international order we are facing in the era of Iraq War. 4 On the other hand, China often portrays its development path as something unique, or, with Chinese characteristics. For some, though, Beijing\u27s slogan of a peaceful rise may sound more alarming than assuring. This phrase may just betray the secret that there is enormous uncertainty about the future. In other words, China\u27s own rhetoric often reinforces rather than mitigates the fear of a reshaped international order. This article aims to challenge the way these questions are framed. By examining human rights as an example in the area of international law, this article argues that while China continues to be defensive on human rights, either by overstretching the notion of sovereignty, or by limiting human rights to a developmentalist point of view, a major shift emerged in its basic legal and political strategy in its relations with the United States on human rights after the invasion of Iraq in 2003. It shifted from a defensive discourse to an offensive discourse by embracing the legal norms and standards established by existing international law and demanded that the United States comply with them. The popular view about China in the United States still insists on an old-fashioned conceptual framework. It creates new fears and yet offers little new insights. The so-called realism -characteristic of the Bush Administration\u27s political philosophy within neocon policy circles-is simply out of touch with reality

Who Owns Data? Constitutional Division in Cyberspace

Privacy emerged as a concern as soon as the internet became commercial. In early 1995, Lawrence Lessig warned that the internet, though giving us extraordinary potential, was “not designed to protect individuals against this extraordinary potential for others to abuse.” The same technology can “destroy the very essence of what now defines individuality.” Lessig urged that “a constitutional balance will have to be drawn between these increasingly important interests in privacy, and the competing interest in collective security.” Lessig envisioned that creating property rights in data would help individuals by giving them control of their data. As utopian as property rights in data seemed, it was a shared vision before September 11, 2001 (hereinafter September 11). For convenience, I will call this school of thought the “data subject’s property” (DSP) theory of data. DSP builds on the foundation of Katz v. United States, where the United States Supreme Court declared that the Fourth Amendment “protects people, not places.” .... This Article does not attempt to make an additional argument following the normative line of DSP. Rather, it asks what happened to the DSP theory of data and why has it been sidelined? For this purpose, this Article proposes to examine privacy in cyberspace by tracking the competition between DSP and its rival theories in defining privacy. Samuel Warren and Louis Brandeis initially proposed that privacy be a personal right, much like DSP; however, Olmstead v. United States shifted this view, finding the right of privacy attached to a defendant’s property, not to her person. This decision was the product of an era of government expansion, when the police, tax bureau, or liquor agency were the data collectors. The second shift came when the Warren Court ruled in Katz that privacy was personal, not based on property; however, the Burger Court soon created the third-party doctrine, under which voluntarily submitting information to a third-party, such as a telephone company or bank, defeats the privacy right. The third-party doctrine is a claim that data are the property of the collector. The third shift developed in the era of the internet and social media; despite the warnings of Lessig and Balkin, as well as occasional protests from tech companies, the Roberts Court brought the third-party doctrine to cyberspace through Jones and Carpenter. This time the data collectors are familiar digital platforms. Therefore, throughout the history of privacy, the DSP was met with a rival theory called “data collector’s property” (DCP) theory. The DSP-DCP competition is a powerful thread in revealing the internal logic of a surveillance state in the United States where data collectors—whether they be government agencies, private companies, or digital platforms—have dominated and defined privacy