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THE YALE UNDERGRADUATE LAW REVIEW WWW.YULR.ORG INFO@YULR.ORG EDITORAL BOARD AND STAFF

LETTER FROM THE EDITOR:

EDITOR-IN-CHIEF DAVID CHAN

I am proud to present our second issue entitled ‘What does Yale think of The Law’. A lot has happened since the last time we published our inaugural issue, and the editorial team thought that it would be a great idea to hear what Yalies think about the crucial legal issues confronting our time.

MANAGING EDITORS DAVID TRINH MENGJIA YANG Publisher WILL ROBLES ASSISTANT EDITORS JARED BARAGAR JENNIFER BRIGHT JUAN CABALLERO MAX CHO PAULO COELHO FILHO ANDRENE DABAGHI NADIA DANFORD SAMUEL GAMER JULIO GARZON ALEXANDRA HESS CARYS JOHNSON ROBERT KLIPPER LAUREN KOSTER HARRY KOULOS TOBIAS KUEHNE CHRISTOPHER LEE JORDAN OROSZ EWELINA RUDNICKA DANIEL SPECTOR BEAU WITTMER MIMI WU SOPHIA YOO

COPY EDITORS ERIN BIEL JACLYN DELLIGATTI MINDY GEE ANDREW SQUIRE PHOTO EDITORS GRACE PATUWO ALLISON RABKIN-GOLDEN FINANCE ELIZABETH CUI ERIN FACKLER ALLEN GRANZBERG MARKETING WILLIAM DESMOND KATHERINE GIACCONE CATHERINE MORRIS NICOLE NEGBENEBOR EMILY ROSENBERG

BOARD OF ADVISORS JAMES SILK CLINICAL PROFESSOR OF LAW, ALLARD K. LOWENSTEIN INTERNATIONAL HUMAN RIGHTS CLINIC, AND EXECUTIVE DIRECTOR, ORVILLE H. SCHELL, JR. CENTER FOR INTERNATIONAL HUMAN RIGHTS, YALE LAW SCHOOL

We’ve got an amazing array of opinions in this second issue: Cameron Rotblat and Zak Newman’s provoking account of marijuana and federalism certainly challenges pre-existing notions on legalization, and Harry Graver’s call to repeal the 17th Amendment certainly strikes at the heart of our nation’s current political and constitutional landscape in light of the recent midterm elections. Over in our international law section, Caroline Tan’s detailed analysis on the legality of Wikileaks opens up a crucial debate on the relationship between the First Amendment, the media, and national security, and Jonathan Desnick also presents a unique perspective on national treasures in the aftermath of Yale’s decision to return the Peruvian artifact. Do also check out our ‘In Focus’ specials, which take a closer look at Copyright Law, ranging from the legality of Google Books to the recording industry, and on China’s evolving legal architecture. Finally, we’re delighted to have Yale Law School Dean of Admissions Asha Rangappa explain more about the law school application process, and to have Professor Guhan Subramanian, Chair of Harvard’s JD/MBA program share his thoughts on the joint degree program. And as always, do drop me a line at editor@yulr.org to share your thoughts on our second issue. We are grateful for your support of our publication, and would love to hear what you think! Also, if you are considering writing for us, or would like to be part of the editorial board, do let us know as well. Finally, I would like to thank all our sponsors for making this second issue a reality, and to the editorial team for working tirelessly over the past few months to put together what you are about to read. Enjoy!

David Chan Editor-In-Chief LINDA GREENHOUSE Yale Undergraduate Law Review SENIOR RESEARCH SCHOLAR IN LAW, KNIGHT DISTINGUISHED __________________________________________________ JOURNALIST-IN-RESIDENCE, AND JOSEPH GOLDSTEIN LECTURER IN THE YALE UNDERGRADUATE LAW REVIEW WOULD LIKE TO THANK LAW, YALE LAW SCHOOL THE FOLLOWING ORGANIZATIONS AT YALE UNIVERSITY ___________________________________________________ FOR THEIR GENEROUS SUPPORT: ALL RIGHTS RESERVED. NO PART OF THIS PUBLICATION MAY BE REORVILLE H. SCHELL, JR. CENTER FOR INTERNATIONAL HUMAN RIGHTS, PRODUCED OR TRANSMITTED IN ANY FORM WITHOUT THE EXPRESS YALE LAW SCHOOL; UNDERGRADUATE ORGANIZATIONS FUNDWRITTEN CONSENT OF THE YALE UNDERGRADUATE LAW REVIEW. ING COMMITTEE (UOFC); MANHATTAN LSAT; AND THE YALE INITIATIVE FOR THE INTERDISCIPLINARY STUDY OF ANTISEMITISM


SPRING 2011 VOLUME 1, ISSUE 2 ______________ Domestic Law Marijuana and Federalism: An Entwined History, Cameron Rotblat and Zak Newman An account of marijuana law, and where it could be heading.

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Party Law, Bill Toth A survey of the partier’s rights.

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Animal Law: An Emerging Field, Ilan Fischer Laws protecting animals exist, but there’s plenty of work to be done.

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In Focus: Copyright Law Knowing Not: Virtual Copyright and Innocent Infringement, Marcus Moretti Breaking down A&M Records, Inc. et al. v. Napster, Inc.

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Copyright Law: The Defender of Cinema, Alexander Porro Copyright protections need to adapt to today’s technology.

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Google Book Search and the Future of Online Copyright Law, David Curtis Navigating the morass that is copyright in the Digital Age.

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Opinion Repeal the 17th Amendment, Harry Graver Direct democracy isn’t all it’s cracked up to be.

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International Law Wikileaks and the Law, Caroline Tan  <PMLQNÅK]T\aQVJZQVOQVOI[WTQLKI[MIOIQV[\)[[IVOM

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International Human Rights Law: Is the U.S. Lagging Behind?, Katherine Haas The U.S. should ratify the ICESCR.

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War on a New Front: Cultural Heritage, Jonathan Desnick The ugly side of cultural repatriation.

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In Focus: China Across a Great Wall: Censorship and the Experience of Cinema in the People’s Republic of China, Grayson Clary A microcosm of global politics.

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To Professionalize or Not to Professionalize? The Past, Present and Future of the Chinese Legal System, Marissa Benavides Much of Chinese law is based on Western models, but will China leave tradition behind?

[40]

Interviews Interview: Asha Rangappa, Yale Law School Dean of Admissions, David Chan The admissions process, and how to shore up your application to one of America’s top law schools.

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Interview: Guhan Subramanian, Professor of Business Law at Harvard Law School , David Chan A chat with Harvard Law/Harvard Business Prof. Subramanian on the JD/MBA program.

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Special Features The Myth of the Unaffordable: Avenues to Financing a Law School Education, Tobias Kuehne How law schools can help you pay your own way.

[52]

Kosovo: The Country’s Unique Path to Independence and Its Status in International Law The YULR speaks with Garentina Kraja: a native of Kosovo, former World Fellow, and current Yale undergraduate.

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Domestic Law

Marijuana and Federalism: An Entwined History Cameron Rotblat and Zak Newman

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n recent years, the legality of medical marijuana has become a contentious issue between the states and the federal government; with patients often having to con\MVL_Q\PKWVÆQK\QVO[\I\MIVLNMLMZITXWTQKQM[<PMK]ZZMV\ contradictory policies on cannabis within the United States can be better understood by surveying the evolution of cannabis policy in the past 150 years. This history indicates that the status of cannabis is and has been inextricably tied to changing notions of the role of the federal government.

An illustration of Cannabis sativa from a 512 A.D. Viennese Manuscript. (WikiCommons)

The first efforts at regulating marijuana in the United States were tied to a much more controversial and pressing international issue of the time, the international opium trade. In the late 19th century, the British forced the legalization of opium in China through its victory in the Opium Wars of 1839–1842 and 1856–1860, as its trade was extremely profitable for European traders.i In response to widespread opium addiction throughout the country, Protestant missionaries in China created anti-opium societies in the 1890s.ii Inspired by the signs of opium addiction in the Chinese-American populations of the West Coast, President Theodore Roosevelt called for an International Opium Commission. The resulting 1912 International Opium Convention declared that “The contracting Powers shall use their best endeavors to control, or to cause to be controlled, all persons manufacturing, importing, selling, distributing, and exporting morphine, cocaine,

and their respective salts…” It also banned the international trade of Indian hemp, or hashish except shipments “exclusively for medical or scientific purposes.” The treaty inspired the Harrison Narcotics Tax Act of 1914, which placed regulations on opiates within the United States. Later US marijuana laws, such as the Marihuana Tax Act were designed to fit within the same basic legal framework. Starting with a 1913 California law that prohibited preparation of hemp, numerous states instituted marijuana prohibitions and, by the mid 1930s, all states had laws prohibiting the sale and possession of marijuana. In 1937, the federal government passed the Marihuana Tax, an uncontroversial legal readjustment standardizing marijuana laws across states.iii The act imposed a tax schedule on Marijuana based upon the use of cannabis. The tax was $24 per year for importers, manufacturers, and cultivators, $1 per year for medical and research purposes, and $3 per year for industrial uses. The Act declared that “It shall be unlawful for any person who shall not have paid the special tax and registered…to send, ship, carry, transport, or deliver any marijuana.” The legal framework of drug control formulated in the Marihuana Tax Act was overturned by the 1969 Supreme Court case Leary v. United States.iv The Court found the Act unconstitutional for violating the Fifth Amendment privilege against selfincrimination. Leary, after being charged with marijuana possession, challenged the constitutionality of the law, because the combination of state and federal regulation meant that attempting to register under the federal law us a user of mari-

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Marijuana and Federalism: An Entwined History juana necessitated self-incrimination under state laws. The linchpin of the case was whether the Act was designed simply as a taxing mechanism or to prevent the possession of marijuana. The government contended that the “Act’s transfer tax provisions do not compel incriminatory disclosures because…they permit payment of the tax only by persons whose activities are otherwise lawful.” However, in a unanimous decision, the Court held that the intent of the law was “merely to impose a very high tax on transfers to nonregistrants and not to prohibit such transfers entirely.” Therefore the way in which the act was implemented was found unconstitutional as “compliance with the transfer tax provisions would have required petitioner as one not registered but obliged to obtain an order form unmistakably to identify himself as a member of a ‘selective group inherently suspect of criminal activities,’ and thus those provisions created a ‘real and appreciable’ hazard of incrimination.” As a result of the case, the Act was repealed and replaced with the more straightforward and comprehensive Controlled Substances Act of 1970 (CSA). The 1970 Act regulates the manufacture, importation, possession, use and distribution of certain substances. Such substances are organized into schedules based on potential for abuse and whether the substance has an accepted medical use. Marijuana was classified as a schedule I controlled substance, having a high potential for abuse and without accepted medical use.

A neon sign advertisement at a California dispensary. (WikiCommons) At the federal level, the settlement in the 1976 case Randall v. U.S. challenged the CSA’s notion that marijuana had no legitimate medical use. Randall, who suffered from glaucoma, brought a lawsuit against various federal agencies asserting that, because it was a medical necessity, he could not be charged with marijuana possession. A federal judge sided with Randall and, as a result, the US government instituted the Compassionate Investigational New Drug program. The program allowed a small number of patients to use marijuana provided by the National Institute on Drug Abuse. The George H.W. Bush administration suspended the program in 1992. The program never had more than 30 participants.v The legal justification for the program was that it was part of the Investigational New Drug program, and thus the program could be seen as a federally sanctioned experimental test of medical marijuana (and not explicit acknowledgement

of marijuana as having medicinal value). After Randall, states across the nation sought to find ways of allowing the use of marijuana by medical patients. As of 2010, fifteen states and the District of Columbia have legalized medical marijuana in some capacity.vi These state laws generally stipulate that patients must have one of a certain list of symptoms and a doctor must subscribe marijuana for their condition. The states have a maximum limits on the amount

<PMÅZ[\MNNWZ\[I\ZMO]TI\QVOUIZQR]IVIQV\PM =VQ\ML;\I\M[_MZM\QML\WIU]KPUWZMKWV\ZW^MZ[QITIVLXZM[[QVOQV\MZVI\QWVITQ[[]MWN \PM \QUM\PMQV\MZVI\QWVITWXQ]U\ZILM of marijuana a patient can possess, usually around two ounces. Most states allow medical marijuana patients to possess only a small number of plants, usually three to six. Despite the fourteen states with some degree of medical marijuana legalization, only three states, New Mexico, Rhode Island, and California, allow the sale of medical cannabis. Legalization advocates contend that there is a “chicken-and-egg problem” in states without legalized sales, because patients can grow their own cannabis but the states fail to provide a legal way for them to get the necessary tools to start growing the plant.vii The California law, passed by the initiative process in 1996 as the Compassionate Use Act, is particularly noteworthy for its relatively lax conditions in comparison to other states. It removed state-level criminal penalties on the use, possession, and cultivation of cannabis by patients whose physician has recommended the use of medical cannabis. As a result of the legislation, California has seen the rise of a fledgling dispensary industry with stores and co-ops across the state selling medical marijuana. California’s Compassionate Use Act attracted national attention in the 2001 Supreme Court case United States v. Oakland Cannabis Buyers’ Cooperative. In the case, the Court took on the controversial question of whether a medical necessity defense could be applied to the Controlled Substances Act of 1970. The Oakland Cannabis Buyer’s Cooperative (OCBC) was organized to supply medicinal marijuana to patients in a manner consistent with California’s California’s Compassionate Use Act. The US government had ordered OCBC to stop the cultivation and distribution of marijuana as the cooperative was in violation of the Controlled Substances Act. OCBC ignored the order and argued that medical necessity was a legally cognizable defense of its violations. The case was granted certiorari by the Supreme Court after the Court of Appeals sided with the defense based on the notion that federal courts have “broad equitable discretion to fashion injunctive relief.”viii In a unanimous decision, the Supreme Court ruled in favor of

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Domestic Law the US government. The Court held that by including Marijuana in the CSA and placing the drug in a certain schedule, Congress made a judgment that marijuana “had no currently accepted use.” The ruling noted that a necessity defense “cannot succeed when the legislature itself has made a determination of values.” The Supreme Court also held that the district court overstepped its power, as its role is to decide “whether a particular means of enforcement should be chosen over another permissible means, not whether enforcement is preferable to no enforcement at all.” Thus the Court signified that as long as marijuana is included in the CSA, federal courts cannot view the drug as a medical necessity, in essence reaffirming that the national policy on medical marijuana can only dictated by Congress. The legality of medical marijuana was once again put to the test in the 2005 Supreme Court Case Gonzales v. Raich. The defendants, California citizens who used homegrown medical marijuana for serious life-threatening medical conditions, contested the DEA’s seizure and destruction of their cannabis plants. They argued that the enforcement of the CSA was unconstitutional for violating the Commerce Clause of the US Constitution. The defendants held that because they used their own homegrown marijuana, their actions had no connection to interstate commerce and that, because of this, the federal government could not regulate their growing. They further argued that, under the Ninth and Tenth amendments, the federal government could not prosecute them, as their marijuana cultivation was an intrastate issue and thus its regulation was reserved to the states. The government argued that the CSA was applicable in the situation because personal growth and consumption of marijuana affects the interstate market of the drug and therefore is not simply an intrastate issue. The government’s argument drew heavily on the 1942 case of Wickard v. Filburn, in which the Supreme Court found production quotas to be constitutional because “wheat produced and consumed on the same farm would have a substantial effect in defeating and obstructing” the Agricultural Adjustment Act in its purpose to “stimulate trade at increased prices.”

The defendants held that because they used their own homegrown marijuana, their actions had no connection to interstate commerce In a 6-3 decision, the Court in Gonzales v. Raich sided with the government. The majority opinion paid particularly strong attention to the parallels between the case and Wickard: “while the diversion of homegrown wheat tended to frustrate the federal interest in stabilizing prices…the diversion of homegrown marijuana tends to frustrate the federal

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interest in eliminating commercial transactions in the interstate market in their entirety.”ix The justices also contended that “regulation is squarely within Congress’ commerce power because production of the commodity meant for home consumption, be it wheat or marijuana, has a substantial effect on supply and demand in the national market for that commodity.” Yet, despite the ruling in Gonzales v. Raich, states across the nation continue to move toward the varying degrees of marijuana legalization. In fact, Rhode Island, New Mexico, New Jersey, Michigan, and Washington D.C. all instituted medicinal marijuana laws after the ruling.

US Attorney General Eric Holder speaking at a press conference. (U.S. Department of Justice) Since the election of Barack Obama, there has been an important shift in the federal government’s treatment of marijuana. Whereas Attorney General John Ashcroft “stiffened enforcement against marijuana clubs” and condoned federal agencies’ raids on clubs, Attorney General Eric Holder has been seen as offering a “truce” in the complex legal entanglement over medical marijuana.x He announced that it would not “be a priority to use federal resources to prosecute patients with serious illnesses or their caregivers who are complying with state laws on medical marijuana.” However, he qualified his announcement by asserting, “We will not tolerate drug traffickers who hide behind claims of compliance with state law to mask activities that are clearly illegal.”xi While such a public announcement of prioritization does not change the illegality of such operations, it has been embraced by California in the hope that such a change in priorities will finally allow the state to earn money through its medical-marijuana

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Marijuana and Federalism: An Entwined History state sales tax. Americans for Safe Access, an advocacy group for medical marijuana, estimates California lost over $100 million in potential sales tax revenue because of federal raids. However, important legal complications remain such as the fate of the â&#x20AC;&#x153;30 to 40 individuals who faced or were incarcerated for medical-marijuana-related charges before the Obama Administration relaxed its policy.â&#x20AC;?xii Because Holderâ&#x20AC;&#x2122;s policy change does not change the legality of medical marijuana, individuals taken into custody before the announcement of the current policy still face charges. In the well-publicized case of Charles Lynch, an owner of a medical marijuana dispensary, federal prosecutors have continued to seek the maximum sentence of five years for Lynchâ&#x20AC;&#x2122;s various marijuana trafficking-related charges even after Holderâ&#x20AC;&#x2122;s announcement.xiii Thus, it can be said that current marijuana legislation stands at an uneasy truce. Despite Holderâ&#x20AC;&#x2122;s announcement there are still many legal battles to be fought. Without a change in the Controlled Substances Act or a rescheduling of marijuana, a change in administration could unleash another round of contentious legal arguments over supremacy. From the progressive impulses of the turn of the century to the trend of devolution over the past two decades, the legal history of cannabis has been closely tied to major trends in legal thought. Contemporary questions in regard to marijuana legalization cannot be considered in isolation, but must be viewed with an eye on legal history and thought.

juana.â&#x20AC;? Stateline: State Policy and Politics. http://www.stateTQVMWZOTQ^MLM\IQT[[\WZa'KWV\MV\1L%  viii â&#x20AC;&#x153;UNITED STATES v. OAKLAND CANNABIS BUY-:;Âź +778-:)<1>- -< )4 ""  =;  Âş =; ;]XZMUM+W]Z\+I[M[NZWU2][\QI7aMb?MJ.MJ P\\X"[]XZMUMR][\QIKWU][  ix š/76B)4-;^:)1+0=;Âş>WQKM[WN )UMZQKIV 4I_  ?MJ $P\\X"^WQKM[WNIUMZQKIVTI_WZOUMLQI LWK]UMV\[:IQKPGMLQ\MLXLN& x Stout, David, and Solomon Moore. â&#x20AC;&#x153;U.S. Wonâ&#x20AC;&#x2122;t Prosecute in States That Allow Medical Marijuana.â&#x20AC;? New York Times, 7K\WJMZ!!P\\X"___Va\QUM[KWU! ][KIVVIJQ[P\UT xi Johnson, Carrie. â&#x20AC;&#x153;U.S. Eases Stance on Medical MarijuaVIÂş?I[PQVO\WV8W[\7K\WJMZ!P\\X"____I[PQVO\WVXW[\KWU_XLaVKWV\MV\IZ\QKTM!! ):!! P\UT xii Stateman, Alison. â&#x20AC;&#x153;In California Marijuana Truce, a 4MOIT /ZIa )ZMIÂş <QUM 5IZKP ! ! P\\X"___ \QUMKWU\QUMVI\QWVIZ\QKTM !!  html#ixzz1BjrhXncI. xiii Stossel, John, and Andrew Sullivan. â&#x20AC;&#x153;Jail for Selling MediKIT 5IZQR]IVIÂş )*+ 6M_[ 5IZKP  ! P\\X"IJKVM_[OWKWU;\W[[MT[\WZa'QL% XIOM% # Glover, Scott. â&#x20AC;&#x153;Sentencing Delayed in Medical Marijuana +I[MÂş 4W[ )VOMTM[ <QUM[ )XZQT  ! P\\X"IZ\QKTM[ TI\QUM[KWU!IXZTWKITUMUMLXW\

Cameron Rotblat is a sophomore in Jonathan Edwards and a member of the Yale Democrats. Zak Newman, also a sophomore in Jonathan Edwards and a member of the Yale Democrats, assisted with the article. ______________________________________________ Brown, J. B. â&#x20AC;&#x153;Politics of the Poppy: The Society for the Suppression of the Opium Trade, 1874-1916.â&#x20AC;? Journal of Contemporary History 8, no. 3 (July 1, 1973): 97-111. ii Lodwick, Kathleen L. Crusaders against opium: Protestant missionaries in China, 1874-1917. University Press of Kentucky, 1996. iii Galliher, John F., and Allynn Walker. â&#x20AC;&#x153;The Puzzle of the Social Origins of the Marihuana Tax Act of 1937.â&#x20AC;? Social 8ZWJTMU[VW.MJZ]IZa!" iv š4-):A>=61<-,;<)<-;!=;"">WT]UM! :: 1969.â&#x20AC;? US Supreme Court Cases from Justia & Oyez. Web. .MJ$P\\X"[]XZMUMR][\QIKWU][!& v : >MTQV 8 2 *IKP 2 ;IVKPMb:IUW[ IVL 3 ) 3QZTQV â&#x20AC;&#x153;Chronic Cannabis Use in the Compassionate Investigational New Drug Program.â&#x20AC;? Journal of Cannabis Therapeutics VW"¡#)UMZQKIV+IVKMZ;WKQM\aš+WUXI[sionate Drug Use.â&#x20AC;? Compassionate Drug Use. http://www. cancer.org/Treatment/TreatmentsandSideEffects/ClinicalTrials/compassionate-drug-use vi â&#x20AC;&#x153;15 Legal Medical Marijuana States and DC - Medical Marijuana - ProCon.org.â&#x20AC;? Medical Marijuana ProCon.org. ?MJ  .MJ  P\\X"UMLQKITUIZQR]IVIXZWKWVWZO view.resource.php?resourceID=000881. vii Harrison, David. â&#x20AC;&#x153;The Buying and Selling of Legal Marii

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Domestic Law

Party Law Bill Toth

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(Creative Commons)

A

[M[\IJTQ[PMLQV+WVVMK\QK]\;\I\]\M+PIX\MZ;MK\PMLZQVSQVOIOMQ[<PMTI_XZWPQJQ\[JW\P\PMXZW^Qsion of alcohol to minors and the possession of alcohol by minors. Yet, underage drinking on college campuses, dear old Yale included, persists. Consumption of alcohol, particularly in the episodic, high volume manner in _PQKPQ\WKK]Z[WVKWTTMOMKIUX][M[XW[M[[QOVQĂ&#x2026;KIV\PMIT\PZQ[S[\W\PW[MQV^WT^MLVWUI\\MZ\PMQZIOM;\]LMV\[VWVM\PMless, continue to leave themselves open to liability, both criminal and civil, by intentionally and frequently violating these laws. What follows will be a survey of the local and state legislation and much of the case law that applies to hosts of off campus parties that serve alcohol to minors. To start, I will outline the laws applicable to off-campus residences that come into play during a party.i Chapter 545 of the Connecticut Statutes is titled the â&#x20AC;&#x153;Liquor Control Act,â&#x20AC;? and the relevant statutes, 30-86, 30-89, and 30-89a, establish strict control over the entire process of underage drinking, from service to possession. Section 30-86 prohibits the serving of alcohol to minors and to intoxicated persons. Section 30-89 of this legislation places a burden on UQVWZ[[MMSQVO\WXW[[M[[ITKWPWTJaXZWPQJQ\QVO\PMXW[[M[[QWVWN ITKWPWTJaIXMZ[WV]VLMZ\PMIOMWN QVJW\PX]JTQK and private locations. Exceptions include possession for the purpose of religious practice, or possession under the super^Q[QWVWN IXIZMV\O]IZLQIVWZ[XW][MW^MZ\PMIOMWN ii Section 30-89a places an additional burden on anyone who enables the violation of Section 30-89 by implicating any one exercising â&#x20AC;&#x153;dominion and control over any dwelling unit or private propertyâ&#x20AC;? who permits the possession of alcohol by minors, or knowing that minors possess alcohol, fails to halt said possession.iii These provisions place both partygoer and party host at risk of incurring legal penalties.

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YALE UNDERGRADUATE LAW REVIEW Â&#x152;>WT]UM1[[]M


Party Law In addition to violating Connecticut liquor control standards, many college parties may also violate certain New Haven ordinances by creating a public nuisance. During nighttime PW]Z[¸LMĂ&#x2026;VML I[ IN\MZ "XU 5WVLIa;I\]ZLIa IVL after 9:00pm Sundayâ&#x20AC;&#x201D;no noise emitted from a residential property shall be received at any other residential property at a volume above 45 dBA, which is approximately the volume of a low conversation.iv Further, the â&#x20AC;&#x153;obstruction or interferMVKM_Q\P\PMNZMMĂ&#x2020;W_WN UW^MUMV\_Q\PQV\PMX]JTQKZQOP\ of-way,â&#x20AC;? is prohibited, a law which can be easily be violated by a crowd attempting entry to a party.v It should be noted that neither Connecticut nor New Haven has enacted any open container laws. Other localities have prohibited the possession of open containers of alcohol by passengers of motor vehicles or in public spaces. (Creative Commons) The 1988 Connecticut Supreme Court case, Ely v. Murphy, establishes a standard for â&#x20AC;&#x153;social host liabilityâ&#x20AC;? in Connecticut.vi In this case, Thomas Foley, age 18, was a guest at a graduation party hosted by C. Connor Murphy. He departed by car, inebriated, and struck another party guest, Christopher Ely, fatally injuring him. Citing Nolan v. Morelli, the court notes that in the case of an adult, consumption of alcohol serves as an intervening act, breaking the chain of liability to the server. This is a rule â&#x20AC;&#x153;based on the obvious fact that one could not become intoxicated by reason of liquor furnished him if he did not drink it.â&#x20AC;?vii The court, however, notes the tone of Connecticut legislation, writing: In view of the legislative determination that minors are incompetent to assimilate responsibly the effects of alcoholâ&#x20AC;Ś their consumption of alcohol does not, as a matter of law, constitute the intervening act necessary to break the chain of proximate causation and does not, as a matter of law, insulate one who provides alcohol to minors from liability for ensuing injury.viii Thus, the liability of a party host does not end with his criminal offenses. Should a minor cause injury or damage to himself or others, the party host could be held liable for some, though not all, of that damage, based on the extent to which intoxication is a cause. In the face of these many liabilities, both criminal and civil, it is important for party hosts, both law-abiding and lawbreaking, to know their rights when facing potential police action. The Fourth Amendment guarantees â&#x20AC;&#x153;the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.â&#x20AC;?ix This is an important right in protecting oneself as a partygoer or host. Certain conditions, however, permit search or seizure without the procurement of a warrant, and many of those conditions apply to parties. In Anderson v. Creighton, the SuXZMUM+W]Z\M[\IJTQ[PMLQN IVWNĂ&#x2026;KMZPI[XZWJIJTMKI][M\W believe that a crime is being committed, and reasonable belief that exigent circumstances exist, the requirement for a warrant is overridden.x Exigent circumstances exist â&#x20AC;&#x153;if lives are threatened, a suspectâ&#x20AC;&#x2122;s escape is imminent, or evidence is about to be destroyed.â&#x20AC;?xiI\

There are several cases which establish standards for probable cause for a warrantless search of a home that may apply to the typical college off-campus party. Unfortunately, none of these cases are binding on Connecticut law, and some deKQ[QWV[KWV\ZILQK\W\PMZ[1VIKI[M[MMVQV\PM-QOP\P Circuit Appeal from the District court of Iowa, Radloff v. City of Oelwin, an anonymous tip of underage drinking combined _Q\PIVWNĂ&#x2026;KMZZMKWOVQbQVOIUQVWZQVXW[[M[[QWVWN JMMZWV \PM XZMUQ[M[ \W JM [MIZKPML _I[ []NĂ&#x2026;KQMV\ \W M[\IJTQ[P \PM probable cause necessary to justify a search.xii It is important to note that this case notes that the legality of a warrantless MV\Za LMXMVL[ ]XWV _PM\PMZ IV šWNĂ&#x2026;KMZ IK\ML _Q\P I ZMIsonable belief that probable cause and exigent circumstances existed, not on whether either actually existed.â&#x20AC;?xiii<PM Sixth Circuit case of Hardesty v. Hamburg Township, arising from the Eastern District of Michigan, discusses the extent to which the fourth amendment protects a back deck and yard as â&#x20AC;&#x153;curtilageâ&#x20AC;? of the home.xiv  <PM WNĂ&#x2026;KMZ[ IZZQ^ML I\ the Hardesty home after arresting a minor for drunk driving, who claimed to have been drinking at the home of Joseph 0IZLM[\a =XWV IZZQ^IT \PM WNĂ&#x2026;KMZ[ VW\QKML [M^MZIT KIZ[ QV the driveway and a light being extinguished. After knocking WV\PMNZWV\LWWZaQMTLMLVWZM[XWV[MIVWNĂ&#x2026;KMZXZWKMMLML to the back deck, where he noticed a young man, apparently unconscious with blood on his hands. A search was conducted, and several minors were cited for possession of alcohol. The Michigan State court dismissed all criminal charges in this case, deciding that the entrance into the backyard constituted an illegal search, but the civil case weighs in differently. Because â&#x20AC;&#x153;there was a hot tub built into the deck and the Hardestys frequently kept a grill and table out on the porch as wellâ&#x20AC;?, it was clearly a locus for the â&#x20AC;&#x153;activities and privacies of domestic life,â&#x20AC;? and constituted the â&#x20AC;&#x153;curtilageâ&#x20AC;? of the home, protected by the Fourth Amendment.xv Despite this, \PMKW]Z\NW]VL\PI\\PMXWTQKM_MZMR][\QĂ&#x2026;MLQVMV\MZQVO\PM curtilage without a warrant given their reasonable belief that someone was home and intentionally ignoring the knocking at the front door. 1V\PM5QVVM[W\I;]XZMUM+W]Z\KI[Min re: B.R.K, the Fourth Amendment was extended to grant a reasonable ex-

YALE UNDERGRADUATE LAW REVIEW Â&#x152;>WT]UM1[[]MCE


Domestic Law XMK\I\QWVWN XZQ^IKa\WI[PWZ\\MZU[WKQITO]M[\IKTI[[QĂ&#x2026;KItion which would cover the typical guest at an off-campus party.xvi Further, this case is among the few cases of pos[M[[QWVWN ITKWPWTJaUQVWZ[\WĂ&#x2026;VLIOIQV[\\PMXZM[MVKMWN  probable cause. In this case, a tip from an unrelated neighbor and the presence of a teenagerâ&#x20AC;&#x2122;s car in the driveway were not []NĂ&#x2026;KQMV\\WR][\QNaI[MIZKP<PMKW]Z\_MV\N]Z\PMZJaVW\ing that the presence of weapons and the potential danger WN  Ă&#x2026;ZMIZU[ LQL VW\ KZMI\M M`QOMV\ KQZK]U[\IVKM[" š?PQTM I serious offense, underage drinking is not a â&#x20AC;&#x2DC;grave or violentâ&#x20AC;&#x2122; offense like robbery or assault.â&#x20AC;?xvii In Oregon v. Jangala XWTQKM WNĂ&#x2026;KMZ[ KWVL]K\ML I _IZZIV\TM[[ search after witnessing apparent minors running from the front yard to the back of the house and several people â&#x20AC;&#x153;holding red plastic cupsâ&#x20AC;Ś recognized as the type commonly used to serve beer from a keg.â&#x20AC;?xviii In this case, probable cause was established, though the exigent circumstances cited by the state were found lacking. Jangala and in Re: B.R.K, however, are among the most restric\Q^MLMĂ&#x2026;VQ\QWV[WN šM`QOMV\KQZK]U[\IVKM[ÂşIVLUW[\KW]Z\[ construct the term incredibly broadly such that any factual support for underage drinking can constitute exigent circumstances. In Huset v. City of Roseville, the District Court of 5QVVM[W\IINĂ&#x2026;ZU[\PM[\IVLIZLQVRadloff that â&#x20AC;&#x153;the threat to public safety if the juveniles left the house in cars while under \PMQVĂ&#x2020;]MVKMWN ITKWPWTÂşKWV[\Q\]\M[M`QOMV\KQZK]U[\IVKM[xix The court in this case also distinguishes the circumstances in Radloff from those in in re: B.R.K<PW]OP\PMWNĂ&#x2026;KMZ[QVin re: B.R.K. were responding to a complaint of underage drinking, while in Radloff (and in Huset), they were responding to noise KWUXTIQV\[\PMLQNNMZMVKM\]ZV[WV\PMNIK\\PI\\PMWNĂ&#x2026;KMZ[ in Radloff and in Huset witnessed apparent minors consuming alcohol before searching the premises. Sestito v. Debular establishes a standard from the other side of the exigent circumstances issue: )T\PW]OP\PMWNĂ&#x2026;KMZ[QVOWWLNIQ\PUIaPI^M[][XMK\MLIVLQVdeed, were ultimately proven correct) that underage drinking was ongoing at the residence, the limited information available to them-an anonymous noise complaint, the presence of an adult who had consumed alcohol, and multiple cars in the driveway and along the road--simply did not rise to the level of exigent circumstances justifying a warrantless inspection.xx From this case we can determine that a reasonable suspicion, without any factual basis, cannot constitute exigent circumstances. The fact that grave danger could arise from ]VKPMKSML]VLMZIOMLZQVSQVOQ[VW\[]NĂ&#x2026;KQMV\ As a college student, a partier, and sometime host of parties, 1IU]V[I\Q[Ă&#x2026;ML_Q\P\PMMI[M_Q\P_PQKP\PM[\IVLIZL[NWZ a warrantless search are met. The danger of drunk driving is, indeed, a grave one, but it is as present at a party of 19 IVLaMIZWTL[I[Q\Q[IUWVOaMIZWTL[IVL\PMZMNWZM should not be used as judgment of circumstances that turn

[7]

precisely on that age difference. The standard for exigent circumstances should be more directly tied to the true meaning of exigent: pressing. As noted in in re: B.R.K. â&#x20AC;&#x153;While a serious offense, underage drinking is not a â&#x20AC;&#x2DC;grave or violentâ&#x20AC;&#x2DC; offense like robbery or assault.â&#x20AC;?xxi Until someone is driving, getting sick, or making poor decisions (dangers equally present at legal parties), there is nothing exigent about underage drinking. Furthermore, as my house was the subject of a warrantless (and citation free) search several months ago, I recognized an additional problem: with such weak standards for privacy QV\PM[MKI[M[Q\Q[LQNĂ&#x2026;K]T\\WZMKWOVQbM\PMZIZM[Q\]I\QWV[QV _PQKPQTTMOIT[MIZKPM[WKK]Z7NĂ&#x2026;KMZ[ZM[XWVLML\WUaPW][M in response to a noise complaint, and cited only that as jus\QĂ&#x2026;KI\QWVNWZWXMVQVO\PMOI\M\W[MIZKPUaJIKSaIZL?PQTM no citations followed from this, a similar scenario could have yielded both legal trouble and the cost resulting from acquiring representation to have charges dropped to follow from an apparently illegal police action. In consideration of all of this, however, serving alcohol to minors, minor possession of alcohol and permitting minors to possess alcohol on your premises are all criminal offences. While privacy needs to be protected, so too does compliance with the law. Bill Toth is a senior in Morse College and the President of Yaleâ&#x20AC;&#x2122;s AEPi Fraternity. ______________________________________________ Connecticut Statute Chapter 545 Section 30-86; 30-89; 3089a ii Connecticut Statute Chapter 545 Section 30-89(c) iii Connecticut Statute Chapter 545 Section 30-89a iv New Haven Code of Ordinances Chapter 18, Article II v 6M_0I^MV+WLMWN 7ZLQVIVKM[+PIX\MZ)Z\QKTM11 vi Ely v. Murphy+WVV  vii Nolan v. Morelli+WVVI\ viii Ely v. Murphy 95 ix =VQ\ML;\I\M[+WV[\Q\]\QWV)UMVLUMV\1> x Anderson v. Creighton 483 US 635 xi =;^*ITT!.LI\ xii Radloff v. City of Oelwin 380 F.3d 344 xiii Radloff at 348. (citing Anderson at 641) xiv Hardesty v. Hamburg Township 461 F.3d 646 xv HardestyI\ xvi in re: B.R.K 6?L xvii in re: B.R.K at 549. xviii Oregon v. Jangala 154 Ore. App. 176 at 178 xix Huset v. City of Roseville=;,Q[\4-@1;# Radloff at 348 xx Sestito v. Debular .;]XXLI\ xxi in re: B.R.K. at 579 i

YALE UNDERGRADUATE LAW REVIEW Â&#x152;>WT]UM1[[]M


Animal Law: An Emerging Field

Animal Law: An Emerging Field Ilan Fischer

~

T

he past decade has seen the rise of the newest legal NZWV\QMZQV?M[\MZVVI\QWV[¡IVQUITTI_/Q^MV\PI\ there are no federal laws protecting 99% of animals in the US, this is one of the most pressing legal issues that has at last began to step into the spotlight. Throughout history, animals have been treated by the law as a commodity worthy of protection only insofar as their ownersâ&#x20AC;&#x2122; interests dictated so, and devoid of any independent legal interests of their own. As such, looking back, laws relating to animals revolved around their proprietary value to their owners. Thus, for example, the owner of a cow might be able to sue another person for the damage that individual caused to his investment, but that same owner could not be held liable for any harm he himself caused to that same creature.i *MOQVVQVOQV\PMTI\M!\PKMV\]Za\PMĂ&#x2026;Z[\TI_[_MZMXI[[ML A rabbit after a Draize Test, an eye or skin irritancy test originally to recognize that animals themselves have an interest in bedeveloped by the U.S. Food and Drug Administration. The Draize Test ing free from unnecessary and cruel suffering, giving the uses animals to test the toxicity of cosmetics and household products. [\I\M\PMXW_MZ\WX]VQ[P[WUMSQVL[WN QVĂ&#x2020;QK\QWVWN XIQVWV (WikiCommons) animals. While these laws have expanded the legal status of IVQUIT[IVQUIT[ZM\IQVIXZQUIZa[\I\][WN XZWXMZ\a"\PMaIZMOWWL[\WJMJW]OP\IVL[WTL¡IXZQVKQXTM_PQKPQ[LMMXTaMUJMLLML \PZW]OPW]\\PMM`Q[\QVOTMOIT[a[\MU1VLMML[WUMWN \PMĂ&#x2026;Z[\KI[M[ZMILQVXZWXMZ\aTI_KTI[[M[\WLIaIZMPierson v. Postii and Keeble v. Hickeringilliii#_PQKPLM[KZQJM\PMIKY]Q[Q\QWVW_VMZ[PQXIVLKWV\ZWTWN XZWXMZ\a¡VIUMTaNW`M[IVLL]KS[ Yet, unlike other types of property, over the past century, American states have seen the passage of some regulations on how people treat animals. The passage of anti-cruelty statutes in this period outlawed inhumane treatment of certain animals, in particular XM\[[]JRMK\QVO^QWTI\WZ[\WKZQUQVIT[IVK\QWVNWZKI][QVOPIZU\WW\PMZKZMI\]ZM[8MVIT\QM[ZIVOMNZWUUQ[LMUMIVWZĂ&#x2026;VM[QVUW[\ states to a more recent trend toward making such conduct a felony.iv This seems to have set animals apart, giving them a privilege status among other kinds of property. They are legally entitled to certain guarantees, namely that they would not be made to suffer unnecessarily. Or at least so it would seem. The current state of the federal protection of animals from abuse occurs primarily in Title 7, Chapter 54, which legislates minimum standards â&#x20AC;&#x153;for handling, housing, feeding, watering, sanitation, ventilation, shelter from extremes of weather and temperatures, adequate veterinary care, and separation by speciesâ&#x20AC;? as well as â&#x20AC;&#x153;for exerciseâ&#x20AC;? and â&#x20AC;&#x153;for a physical environment adequate to promote the psychological well-beingâ&#x20AC;? of the animals. Additionally, it provides â&#x20AC;&#x153;for animal care, treatment, and practices to ensure that animal pain and distress are minimized, including adequate veterinary care with the appropriate use of anesthetic, analgesic, \ZIVY]QTQbQVOLZ]O[WZM]\PIVI[QIÂşÂ&#x2039; .ZWU\PQ[I[Q[M`XMK\MLOQ^MV\PMIL^IVKML[\I\MWN KQ^QTQbI\QWV_PQKP_MIZMQVI\\PM[\IZ\WN \PM[\KMV\]ZaWVMUIa\PQVS\PI\ proper laws protecting animals are already in place, but one would be mistaken. Not surprisingly, a grand majority of Americans JMTQM^M\PI\\PMZMIZM[]KPTI_[QVXTIKMIVL_PMVQVNWZUML\PI\\PQ[Q[VW\\PMKI[MW^MZ_PMTUQVOTaINĂ&#x2026;ZU\PI\Q\[PW]TLJM*]\ WLLTa_PMV\PMĂ&#x2026;Z[\NMLMZIT)VQUIT?MTNIZM)K\_I[XI[[MLQV!IVLI\MIKP[]KKM[[Q^MIUMVLUMV\\WQ\TMOQ[TI\WZ[LQLVW\ [MMQ\Ă&#x2026;\\WM`\MVL[]KPITI_\W!! WN IVQUIT[][MLQV\PM=;1V[\MILQ\[MMU[I[\PW]OP\PMaNWZOW\\PI\KMZ\IQVIVQUIT[IZMQV

YALE UNDERGRADUATE LAW REVIEW Â&#x152;>WT]UM1[[]MC E


Domestic Law fact â&#x20AC;&#x2DC;animalsâ&#x20AC;&#x2122; too. Preceding the above quoted passages, an important, and monumental stipulation is made, which has been hailed by agribusiness and other major industry interest groups alike. Namely, it so happens that very few animals are actually â&#x20AC;&#x2DC;animalsâ&#x20AC;&#x2122; in the legal sense of the term. â&#x20AC;&#x153;such term [â&#x20AC;&#x153;animalâ&#x20AC;?] excludes: (1) birds, rats of the genus Rattus, and mice of the genus Mus, bred for use in research, (2) horses not used for research purposes, and (3) other farm animals, such as, but not limited to livestock or poultry, ][MLWZQV\MVLMLNWZ][MI[NWWLWZĂ&#x2026;JMZÂşÂ&#x2039;

Recently, strides have been made to combat this nightmarish state of affairs. Largely due to the work of major animal welfare groups, led by The Humane Society of the United States (HSUS), states have begun following the lead of the European Union in outlawing some of the cruelest of farming prac\QKM[_Q\PQV\PMQZR]ZQ[LQK\QWV1V _Q\P\PMPQ[\WZQKXI[[QVOWN 8ZWXW[Q\QWVQV+ITQNWZVQIJa\PMTIZOM[\UIRWZQ\a\W have ever voted in favor of any ballot initiative, Californians []KKMMLMLQVJaXI[[QVO\PMQZIOZQJ][QVM[[QVĂ&#x2020;]MVKMLTMOQ[TIture, and banned some of the most inhumane practices on factory farms. Together with California, other states, including Florida, Arizona, Michigan, Colorado, and Maine, have all approved important measures to outlaw practices such as gestation crates for sows, veal crates, and battery cages.v With these advances, the US is well on its way to major gains in the realm of legal protection of animals from abuse. With amounts of money that pale in comparison to the tens of millions of dollars that major agribusiness and related interests pour into such legal battles, it is an extraordinary legal XPMVWUMVWV \PI\ IVQUIT OZW]X[ IZM ZM[XWV[QJTM NWZ ¡ WVM that should raise eyebrows. Rarely can a coalition that regularly raises less than a tenth the amount in contributions than the amount its opposition throws into a campaign fare well in the legal reality of today. Nonetheless, groups like HSUS repeatedly hand it to business groups by garnering a substantial public interest, one backed by the powerful forces of compassion and ethics.

Painting of the trial of Bill Burns, after he was found beating his donSMa<PQ[[MZ^MLI[\PMĂ&#x2026;Z[\SVW_VXZW[MK]\QWVNWZIVQUITKZ]MT\aQV\PM world. (WikiCommons) Approximately 10 billion land animals and additional unknown tens of billions of marine animals each year fall under exemption 3, representing 99% of all animals used in the US (USDA). Thus, for example, it is perfectly legal to deny to a pig in the US proper handling, housing, feeding, watering, sanitation, ventilation, shelter from extremes of weather and temperatures, veterinary care, separation by species, exercise, environment conducive to psychological well-being, and practices to ensure that animal pain and distress are minimized including anesthetic, analgesic, tranquilizing drugs, and euthanasia. Though when it comes to dogs, none of the above are legal. To anyone who knows a thing or two about animals, this would seem an odd sort of law, given that by almost any cognitive measure, pigs are on par with or exceed the abilities of dogs, and both obviously feel pain and have the capability to suffer. With this unfortunate legal reality, it should come as no surprise that in virtually every single one of over a hundred undercover investigations in major factory farming operations (which account for 99% of animal use) in the US in the past decade, horrendous and institutionalized animal abuse has been documented again and again. This kind of self-regulation is the wet dream of any industry lobby.

[9]

Additionally, such trends are growing, as more and more interest groups converge on the issue of factory farming. Allying in massive coalitions of consumer interest groups, health and preventative medicine groups, environmental groups, IVLUWZM\PMTMOITNWZKMWN )VQUIT?MTNIZMVWVXZWĂ&#x2026;\WZganizations has grown exponentially. With presence in nearly every US state today,vi the interests of advancing the legal protection against torture of animals have truly taken a stronghold, and are here to stay.

Approximately 10 billion land animals and an additional unknown tens of billions of marine animals each year fall under exemption 3, representing 99% of all animals used in the U.S. Given that at the beginning of the previous decade, no state PILXI[[MLIVa[XMKQĂ&#x2026;KNIZUIVQUITXZW\MK\QWVTI_[ZMKMV\ developments give us reason to be optimistic. There is still a very long way to go, but we have made some really important initial strides. Animal Law is being taught in more law [KPWWT[QV\PM=;\PIVM^MZJMNWZMQV[\Q\]\QWV[QVKT]LQVO0IZ^IZLIVL;\IVNWZLIVL\PMZMIZMW^MZKPIX\MZ[ WN ;\]LMV\)VQUIT4MOIT,MNMV[M.]VL[QVTI_[KPWWT[¡I OZW]X INĂ&#x2026;TQI\ML _Q\P \PM VI\QWVIT )VQUIT 4MOIT ,MNMV[M

YALE UNDERGRADUATE LAW REVIEW Â&#x152;>WT]UM1[[]M


Animal Law: An Emerging Field Fund.vii Additionally, the rise in popularity of vegetarianism and veganism has led to their entrance into mainstream culture, as more and more Americans show their support for further legal action by actively boycotting the unregulated industries. There seems to be good reason to believe that before the turn of the next century, Americans will be gazing back upon current animal welfare legislation as we now do upon XZM!Âź[KQ^QTZQOP\[TMOQ[TI\QWV¡I[IV\QY]I\MLPWXMTM[[Ta QVILMY]I\MIVL]T\QUI\MTa]VR][\TaQV[]NĂ&#x2026;KQMV\QV[KWXM Ilan Fischer is a sophomore in Jonathan Edwards College and President of the Yale College Student Animal Welfare Alliance. ______________________________________________ P\\X"___IVQUITTI_QVNWIZ\QKTM[LL][RT]JQV[SQ  htm ii )U,MK6A  iii -VO:MX9* iv -O+WTW:M^;\I\Â&#x2039; !XZW^QLQVOJW\PUQ[LMUMIVor and felony penalties for cruelty to animals). v http://www.humanesociety.org/about/state/humane_ [\I\MGZIVSQVOGP\UT vi Id. vii http://www.aldf.org i

16<-:-;<-,16*-+7516/16>74>-,?1<0<0- YALE UNDERGRADUATE LAW REVIEW? E-MAIL INFO@YULR.ORG

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Domestic Law

In Focus: Copyright Law

(Grace Patuwo)

Knowing Not: Virtual Copyright and Innocent Infringement, 5IZK][5WZM\\QCE <ZMI[WV"IVIOMWTLWNNMV[MJ]\PW_[PW]TL_M^QM_Q\QV\PMÅOP\IOIQV[\\MZZWZQ[U' Copyright Law: The Defender of Cinema, Alexander Porro............................................................[15] +I]OP\QVI[\I\MWN XWTQ\QKITTQUJWNWZW^MZIKMV\]Za\PMQ[TIVLUIaÅVITTaJMWVIXI\P\W statehood. Google Book Search and the Future of Online Copyright Law, David Curtis.............................[18] +I]OP\QVI[\I\MWN XWTQ\QKITTQUJWNWZW^MZIKMV\]Za\PMQ[TIVLUIaÅVITTaJMWVIXI\P\W statehood.

[11]

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Knowing Not: Virtual Copyright and Innocent Infringement

Knowing Not:

know, that she was violating copyright.iii Harper appealed to

>QZ\]IT+WXaZQOP\ and Innocent Infringement Marcus Moretti

~

â&#x20AC;&#x153;Never has a human generation been so transformed by and dependent upon []KPIVMTMK\ZWVQKJTWWLĂ&#x2020;W_Âşi - Mark Helprin, American novelist, journalist, and commentator

A

LQ[\QVO]Q[PQVONIK\IJW]\\PM[\KMV\]ZaQ[\PI\W]Z entertainment is delivered digitally. In the 1990s, with the advent of the world wide web, Americans found unlimited access to content that previously had to be X]ZKPI[ML \W JM KWV[]UML <PQ[ L]JQW][ UQZIKTM _I[ Ă&#x2026;Z[\ and most famously instigated by the peer-to-peer client Nap[\MZ)[U][QKQIV[IVLĂ&#x2026;TUUISMZ[KI]OP\_QVLWN \PM_QLMspread thievery, they rose in protest, decrying the network as a crime ring.ii The ensuing face-off reached its apex in the ;]XZMUM+W]Z\+I[MA&M Records, Inc. et al. v. Napster, Inc., and persists today. One has better odds betting on the Israeli-Palestinian peace process than on the termination of this feud. )UMZQKIV KWV[]UMZ[ IZM KI]OP\ QV \PM KZW[[Ă&#x2026;ZM <PM :Mcording Industry Association of America (RIAA), which is responsible for enforcing musiciansâ&#x20AC;&#x2122; copyright, has litigated IZW]VL  LW_VTWILMZ[ [QVKM  ?PQ\VMa 0IZXMZ was one of the few of those defendants who brought her case to trail. She invoked what is called the â&#x20AC;&#x153;innocent infringerâ&#x20AC;? defense, which lowers the minimum penalty for an infringer who did not know, and could not be reasonably expected to

Los Angeles-based Napster and Tower Records, a leading music retailer in Japan, created a joint venture to launch Napster Japan in 2005. (Flickr Creative Commons) the Supreme Court last year, but the Court deferred to the .QN\P+QZK]Q\WN )XXMIT[ÂźĂ&#x2026;VLQVO\PI\KWXaZQOP\_IZVQVOTIbels on CDs give would-be infringers fair warning. <PQ[ IZ\QKTM _QTT M^IT]I\M \PM .QN\P +QZK]Q\Âź[ Ă&#x2026;VLQVO QV \PM context of American copyright law and the evolution of the innocent infringer defense. Part I will provide a brief overview of American copyright law; Part II will explain how the innocent infringer exemption arose; Part III will evaluate Harperâ&#x20AC;&#x2122;s invocation of the exemption and the problems for QV\MTTMK\]ITXZWXMZ\aTI_\PI\Q\ZIQ[M[#8IZ\1>_QTTKTW[M_Q\P a few concluding remarks. I. A Brief History of Copyright Law The United States Constitution grants the Federal Government the power to regulate copyright and patent protection. Article I, Section 8, Clause 8, commonly known as the Copyright Clause, allots to Congress the power â&#x20AC;&#x153;[t]o promote the Progress of Science and useful Arts, by securing for limited

YALE UNDERGRADUATE LAW REVIEW Â&#x152;>WT]UM1[[]MCE


Domestic Law Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”iv This sentence weaves together two legally distinct threads: that of copyright (“Sciences,” “Authors,” and “Writings”) and that of patent (“useful Arts,” “Inventors,” and “Discoveries”). The conceptual difference between copyright and patents is that the former protects ideas(XX) while the latter protects processes. A novel can be copyrighted but not patented; a chair’s design, vice versa. ;WWV IN\MZ \PM +WV[\Q\]\QWV _I[ ZI\QÅML +WVOZM[[ XI[[ML the Copyright Act of 1790 to follow the Copyright Clause’s dictate. This act set a limit of 14 years on authors’ exclusive rights over books, maps, and charts. Other forms of intellectual property, such as musical compositions and photographs, were gradually incorporated into federal copyright statutes during the 19th century. Copyrighted works were rare in early America. A burdensome and often confusing bureaucratic procedure stymied copyright seekers throughout the 1800s. To be awarded exclusive rights, and author had to report the \Q\TMWN PQ[_WZS\WILM[QOVI\MLWNÅKM[\QKSIVW\QKMWN KWXaright on every reproduction, and submit a copy to another WNÅKMQVL]M\QUMv These formalities partly explain why the great majority of authors in the late 18th and 19th centuries did not hold copyright over their publications.vi The limitation of copyright terms also loosened the author’s grip. The 1790 Act maxed out an individual copyright term at 14 years, with one opportunity for renewal.vii The right to a second renewal was created by the 1833 Copyright Act, X]\\QVO\PMUI`QU]U\MZUI\aMIZ[viii Like the burdensome requirements of initial acquisition, the hurdles of reVM_IT LQ[KW]ZIOML IVL LQ[Y]ITQÅML UIVa .M_ ][M[ WN  \PM works for which authors had successfully acquired copyright were prohibited. Until 1909, it was not illegal to publicly perform copyrighted works or to derive works from them— although the “remix” was not yet conceived, it would have been permitted L]ZQVO)UMZQKI¼[ÅZ[\KMV\]Za*MKI][MNM_ works were copyrighted and few uses of works were prohibited, copyright violation claims were rare. The general public did not fret about stealing intellectual property, nor was there much room for innocent infringement: As Associate Justice Henry Baldwin put it in an 1834 case, “No man could either overlook or mistake” the notices of copyright that were mandatorily printed on all copyrighted material.ix

only when the vendor was aware of infringement.x>MVLWZ[IK\QVO in good faith, Congress reasoned, should not be punished. Ignorant sellers were treated sympathetically because they often received falsely authorized works from their publishers. Although this exception was not always respected in the courts, Congress extended clemency to ingenuous sellers throughout the 19th century.xi The status of innocent infringement changed with the revisionary 1909 Copyright Act. The new copyright code expanded the exclusive rights of holders and scrapped the innocent infringers’ immunity. In the 1931 Supreme Court case Buck v. Jewell-Lasalle Realty Co., the Court held that “[i] ntention to infringe is not essential under the [1909] Act.”xii To the further detriment of innocent infringers, the Act also [\IZ\ML\PM\PKMV\]Za\ZMVLWN ZMTI`QVO\PML]\QM[WN I[XQZQVOKWXaZQOP\PWTLMZ[;XMKQÅKITTaQ\MTQUQVI\ML\PMZMY]QZMment that authors put warning labels on their publications.xiii The 1909 Act therefore delivered a double blow to innocent infringers, making it both harder for individuals to identify a work as copyrighted and impossible to adduce ignorance of copyright as a defense against infringement charges. The 1909 Copyright Act expanded the exclusive rights of holders and scrapped innocent infringers’ immunity. (Flickr Creative Commons)

+WVOZM[[ ZMKWOVQbQVO \PI\ \PM TIKS WN  I VW\QÅKI\QWV UQOP\ prompt consumers to falsely assume a work to have entered the public domain (where no copyright applies), issued a provision to lessen the penalties for a demonstrably innocent infringer.xiv While the 1909 Act set minimum penalties for some offenses, these minima were lowered for those infringMZ[ _PW UIVQNM[\Ta Y]ITQÅMLI[ QVVWKMV\ 4I\MZQV \PM\P century, Congress tweaked the provision, but it remained an attenuating for innocent infringers charged with misusing copyrighted material.

II. The Exception of the Innocent Infringer

III. Maverick Recording Co. v. Harper and Innocent Infringement

From the beginning of American copyright law, defenses of ignorance were admitted when sellers were ignorant that the works they sold were unauthorized. This exception was carved out by the original 1790 Act, which gave distinct conditions of guilt to publishers and vendors. While the Act prohibited publishers to reproduce a copyrighted work without authorization regardless of the publisher’s awareness of infringement, it prohibited the sale of an unauthorized work

Given the development of copyright regulations in the 19th IVL\PKMV\]ZQM[0IZXMZ¼[NIQT]ZM\WIJ[WT^MPMZ[MTN JaQVvoking the innocent infringer defense is unsurprising. Every KW]Z\INÅZUML0IZXMZ¼[O]QT\)XZQ^I\MKWUXIVaPQZMLJa the RIAA to gather the IP addresses of pirates, took screen[PW\[WN \PMLMNMVLIV\¼[ÅTM[PIZQVOIK\Q^Q\aQV<PMLQ[\ZQK\ KW]Z\ \PI\ ÅZ[\ PMIZL \PM KI[M NW]VL \PM[M [KZMMV[PW\[ \W JM QVKWV\ZW^MZ\QJTM M^QLMVKM WN  UISQVO KWXaZQOP\ ÅTM[

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YALE UNDERGRADUATE LAW REVIEW Œ>WT]UM1[[]M


Knowing Not: Virtual Copyright and Innocent Infringement available on a public network.xv The main question to be ZM[WT^ML_I[_PM\PMZWZVW\0IZXMZY]ITQĂ&#x2026;MLNWZ\PMQVVWKMV\ QVNZQVOMZ LMNMV[M 0MZ KTIQU _PQKP [PM Ă&#x2026;Z[\ UILM \W the district court, was that kaZaA, the software she used, was legally analogous to an Internet radio station. Therefore, she argued, her damages ought to be reduced. The Appellate Court of the Fifth Circuit, defying the district court, rejected Harperâ&#x20AC;&#x2122;s reasoning on this point. It cited \PM KWVLQ\QWV WN  \PM QVVWKMV\ QVNZQVOMZ QV  =;+ Â&#x2039; which says that when a copyright notice â&#x20AC;&#x153;appears on the published... phonorecords to which a defendant... had access, then no weight shall be given to such a defendantâ&#x20AC;&#x2122;s interposition of a defense based on innocent infringement in mitigation of actual or statutory damages.â&#x20AC;?xvi Since the physical CDs of the music that Harper illegally acquired and shared carried copyright notices, Harper could not rely on the innocent infringer defense. In response, Harper argued that while the CDs themselves may notify consumers that the works are copyrighted, there is no publicly available notice that using a program like kaZaA constitutes infringement. Her argument sought to establish a distinction between knowledge that content was copyrighted and knowledge that a certain method of consuming that content constituted copyright infringement. As the Fifth Circuit pointed out, however, this distinction is irrelevant as a matter WN TI_2][\QKM)TQ\WQV\MZXZM\ML\PMXZW^Q[QWVQVÂ&#x2039;QV\PM same way the Fifth Circuit did: â&#x20AC;&#x153;[I]t is not necessary that the infringer actually see a material object with the copyright notice. It is enough that the infringer could have ascertained that the work was copyrightedâ&#x20AC;? (emphasis added).xvii IV. Concluding Remarks Given the winding history of the innocent infringement provision, it is not surprising that an intuitively reasonable arguUMV\TQSM0IZXMZÂź[_I[LQ[KIZLMLNWZĂ&#x2026;LMTQ\a\W\PMTI_Âź[TM\\MZ 1V0IZXMZÂź[KI[MQ\Q[LQNĂ&#x2026;K]T\\WLMUWV[\ZI\M_PM\PMZWZVW\ she knew that kaZaA was legally distinct from Internet radio. Her argument calls attention to the dilemma of applying old law to new technologies. As Justice Alito acknowledged in his WXQVQWV š\PMZM Q[ I [\ZWVO IZO]UMV\ \PI\ Â&#x2039;L LWM[ VW\ apply in a case involving the downloading of digital music Ă&#x2026;TM[ <PM XZW^Q[QWV _I[ ILWX\ML QV !  _MTT JMNWZM LQOQ\ITU][QKĂ&#x2026;TM[JMKIUMI^IQTIJTMWV\PM1V\MZVM\Âşxviii While )TQ\WINĂ&#x2026;ZUML\PM.QN\P+QZK]Q\Âź[LQ[UQ[[ITWN \PQ[IZO]UMV\ he wisely left the door open to the Supreme Court to hear a case like this again, should the Circuits later quarrel on the relevant issue. The problem of applying analog media law to digital technology is a pressing one. An increasingly complex copyright regime and the advent of bit-based content (without warning notices) have turned an annual trickle of copyright violators into a rushing torrent. Unlimited access to virtual content

DefectiveByDesign.org campaign of the Free Software Foundation. (Flickr Creative Commons) turns swaths of the populationâ&#x20AC;&#x201D;children most problemati A man protests Digital Rights Management in Boston as part of the callyâ&#x20AC;&#x201D;into potential copyright criminals. Harper was in High ;KPWWT_PMV[PMQTTMOITTaLW_VTWILML\PMĂ&#x2026;TM[NWZ_PQKP[PM must now pay heavy compensation. That young Internet users like her may be found guilty of infringement without fully knowing that they are breaking the law is a problem that urges TMOITZMNWZU6W\QĂ&#x2026;KI\QWV[WN KWXaZQOP\\WOQ^MWVMXW[[QJTM solution, could be required to specify what types of Internet activity constitute infringement. Alternatively, Digital Rights 5IVIOMUMV\,:5\PM[MK]ZQ\a[a[\MU\PI\_I[]V\QT  ][ML\WXZW\MK\Q<]VM[Ă&#x2026;TM[KW]TLJMMVKWLMLQV\W+,\ZIKS[ \WXZM^MV\Ă&#x2026;TM[PIZQVOUWZMMNNMK\Q^MTa<PQ[[MK]ZQ\a[a[\MU has problems of its own, however, as shown by Appleâ&#x20AC;&#x2122;s recent dismissal of it. Record giants, meanwhile, could make better use of their legal treasury by stopping personal lawsuits and improving their public information campaigns. In any case, it seems that with the rise of new ways to violate copyright, copyrighters should respond by increasing the types of warnings that prevent innocent infringement. For this to happen, though, it is likely that the issue will have to come to a head within the chambers of Americaâ&#x20AC;&#x2122;s highest Court. Marcus Moretti is a sophomore in Berkeley College and an Arts&Entertainment Editor for The Yale Herald. ______________________________________________ Helprin, Mark. Digital Barbarism. New York: HarperCollins 8]JTQ[PMZ[!X! ii A&M Records, Inc. v. Napster,!.L!\P+QZ iii Maverick Recording Co. et al. v. Whitney Harper, No. 08-51194, =;+\WN )XXMIT[.QN\P+QZK]Q\.MJ iv U.S. Const. art. I, §8, cl.8. v Reese, R. Anthony. Innocent Infringement In U.S. Copyright Law: )0Q[\WZa=+WT]U24) vi ; +755 76 <0- 2=,1+1):A <0 +76/ , ;-;; +78A:1/0< 4)? :->1;176" ;<=,1-; PREPARED FOR THE SUBCOMMITTEE ON PATENTS, TRADEMARKS AND COPYRIGHTS OF i

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Domestic Law THE COMMITTEE ON THE JUDICIARY, STUDY NO. 17, THE REGISTRATION OF COPYRIGHT 15. (Comm. Print 1960). vii Reese, supra note 5 viii Ibid ix Wheaton v. Peters, 33 U.S. (8 Pet.) 591, 698y (1834) (Brightleyâ&#x20AC;&#x2122;s 3d ed.) (Baldwin, J., dissenting). x See supra, note 3 at 156 xi See, e.g., Kilty v. Green, 4 H. & McH. 345 (Gen.Ct. Md. 1799) xii Buck v. Jewell-Lasalle Realty Co =;!! ! xiii United States Congressâ&#x20AC;&#x201D;1909 Copyright Act xiv See supra, note 3 at 180 xv Maverick Recording Co. et al. v. Harper 6W "K^ <M`I[?M[\MZV,Q[\ZQK\+W]Z\!2IV xvi =;+Â&#x2039;K xvii U.S. Whitney Harper v. Maverick Recording CoM\IT  xviii Ibid

Copyright Law: The Defender of Cinema Alexander Porro

~

(Fickr Creative Commons) Ever since late 19th century, the world of cinema has captured the imagination and hearts of generations of movie-watchers and -makers alike. Cinemaâ&#x20AC;&#x2122;s awe-inspiring imagery, relatable characters, fantastic stories, and portrayal of the triumphs and falls of humanity have allowed people to escape from their comparably mundane realities and into a mind-opening experience of image and sound. There is something both comforting and exciting about sitting in a dark movie theater surrounded by your friends, family, and even complete strangers, munching on buttery popcorn and a chocolate treat. As the movie begins, the palpable electric buzz of anticipation is amplified by the boom of the speakers that resonates in your chest. The thrill of going to the movies cannot be expressed in

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YALE UNDERGRADUATE LAW REVIEW Â&#x152;>WT]UM1[[]M


Copyright Law: The Defender of Cinema words let alone be experienced anywhere else. People simply love watching movies. Thus, it is no surprise that filmmaking industry has become one of the world’s most lucrative and profitable ventures, the playground of social icons, celebrities, and artistic elites. But this dazzling industry would crumble if it weren’t for copyright law. Without copyright law, the movie industry would no longer appeal to the up and coming director or actor because there would be neither profits nor a name to make within the industry. According to the World Intellectual Property Organization, “Copyright and its related rights are essential to human creativity, by giving creators incentives in the form of recognition and fair economic rewards. Under this system of rights, creators are assured that their works can be disseminated without fear of unauthorized copying or piracy. This in turn helps increase access to and enhances the enjoyment of culture, knowledge, and entertainment all over the world.”i Copyright law is the final defense against intellectual property theft and is a fundamental reason why we can still go and enjoy a movie in a dark, crowded movie theater. Copyright law’s humble beginnings can be traced back to early 18th century Great Britain’s Statue of Anne. The full title of this statute was “An Act for the Encouragement of Learning, by vesting the Copies of Printed Books in the Authors or purchasers of such Copies, during the Times therein mentioned,” and as one can gather from the title, it only protected books.ii Over a century after the Statute of Anne was implemented, the United States would include a copyright clause in the constitution empowering the United States Congress “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries,” forming the foundation of copyright law in the United States.iii United States copyright law was later supported and solidified throughout the 20th century by international negotiations made at the Berne Convention for the Protection of Literary and Artistic Work and the Agreement on TradeRelated Aspects of Intellectual Property Rights, the establishment of international organizations such as the World Trade Organization and the World Intellectual Property Organization, and the implementation of several Copyright Acts by United States Congress. The most notable and most salient of these Copyright Acts is the Copyright Act of 1976. The Copyright Act of 1976 is responsible for laying the foundation of modern copyright law as we know it today, extending protection from what was just literary works to a plethora of artistic, intellectual property. Under section 102 of the complete U.S. Copyright law, Title 17 in the United States Code (U.S.C.), copyright protection is given to “original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. Works of authorship include the following categories:

(1) Literary works; (2) Musical works, including any accompanying words; (3) Dramatic works, including any accompanying music; (4) Pantomimes and choreographic works; (5) Pictorial, graphic, and sculptural works; (6) Motion pictures and other audiovisual works; (7) Sound recordings; and (8) Architectural works.iv (Added in 1990)

Great Britain’s 18th Century Statue of Anne (Flickr Creative Commons) Falling under the category of “motion pictures and other audiovisual works”, movies, documentaries, instructional or educational videos, television shows, and even television ads are considered to be viable intellectual property protected by copyright law. In order to receive copyright protection, a work must be “original,” owing its origin and finish to its author and not copied from preexisting material, and “fixed”, being rooted in a tangible, sufficient medium of expression. This protection comes in the form of certain exclusive rights that grant the author or creator of the motion picture or other audiovisual work total control and authority over their intellectual property. When the creator of a film receives a copyright for their film they are granted five exclusive rights that protect their intellectual property from being stolen and pirated as well as provide them with an opportunity to profit from their work: (1) Reproduction Right: The reproduction right is

YALE UNDERGRADUATE LAW REVIEW Œ>WT]UM1[[]MCE


Domestic Law the right to copy, duplicate, transcribe, or imitate the work in fixed form. (2) Modification Right: The modification right (also known as the derivative works right) is the right to modify the work to create a new work. A new work that is based on a preexisting work is known as a â&#x20AC;&#x153;derivative work.â&#x20AC;? (3) Distribution Right: The distribution right is the right to distribute copies of the work to the public by sale, rental, lease, or lending. (4) Public Performance Right: The public perfor mance right is the right to recite, play, dance, act, or show the work at public place or to transmit it to the public. In the case of a motion picture or other audiovisual work, showing the workâ&#x20AC;&#x2122;s images in sequence is considered â&#x20AC;&#x153;performance.â&#x20AC;? (5) Public Display Right: The public display right is the right to show a copy of the work directly or by means of a film, slide, or television image at a pub lic place or to transmit it to the public. In the case of a motion picture or other audiovisual work, show ing the workâ&#x20AC;&#x2122;s images out of sequence is considered â&#x20AC;&#x153;display.â&#x20AC;?v These same rights are what enable filmmakers and the major film companies to provide us with the movie theatre, the movie renting, and the movie watching experience. Without these rights, successfully established movie theatre chains like Regal Cinemas, AMC Entertainment, and Cinemark Theatres would cease to exist because film companies would not have an outlet through which they could securely duplicate, distribute, and display their work in public. Without copyrights, there would be nothing to stop the movie theatre chains from keeping all of the box-office profits, the prime source of revenue for film companies. Major film companies such as Warner Bros. Entertainment, 20th Century Fox, Columbia Pictures, and Universal Studios could distribute and publicly showcase their work without copyright, but it would be economic suicide for them. Even with copyright law, copyrighted films are still being copied, distributed, and watched without the authorâ&#x20AC;&#x2122;s consent. Weâ&#x20AC;&#x2122;ve all done it before. Weâ&#x20AC;&#x2122;ve taken the unlabeled, justburned DVD from its black and similarly unlabeled case and put it into our DVD player, waiting first in nail-biting anticipation to see if the DVD, recorded by a handheld camera in a dark movie theatre, will play. It is probably safe to assume, given our addiction to and infatuation with the entertainment that our Hollywood-saturated society provides, that most of us have, at some point or another, benefitted from someoneâ&#x20AC;&#x2122;s intellectual hard work and artistic expression at a fraction of the market price. Consumers and dealers interacting in the black market collectively undermine the film industry. At first, this sounds kind of badas, but on second glance, saving a couple of bucks in watching the bootleg version might not be worth it. The film industry has been pushing for tougher penalties for bringing a camcorder into a movie theatre, from being charged with a misdemeanor and

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given a fine of $1,000 to being charged with a felony and being awarded up to 3 years in prison and a fine up to $250,000, depending on the state in which the crime took place. Also, with watermark technology, film companies are now able to forensically analyze and determine the specific movie theatre the bootleg film was recorded in or the origins of an illegal DVD download online, making it much easier to catch offenders.

Without copyrights, there would be nothing to stop the movie theatre chains from keeping all of the boxoffice profits, the prime source of revenue for film companies. Although the film industry is taking serious steps to reduce copyright infringement and to enforce copyright law, it seems to lag behind a few steps as technological advancements make copyright infringement simple and easy. Increasing worldwide digital piracy is one obvious concern that has already weakened the music industry and that the film industry must address in the future. Factors which will encourage film activity outside of major studios include: The increasing accessibility of filmmaking due to the development of digital cameras, computer graphics programs, and other high-tech developments; the increasing likelihood that the internet, mobile phones, and wireless technology will allow a more democratic and open exploitation of digital films worldwide, even if such exploitation does not directly compete with the theatrical, major studio film experience.vi If copyright law wants to stay relevant and enforceable, it must adapt and transform itself to deal with new technology and new mediums of intellectual expression. If copyright law fails to do this, it will render itself obsolete as the defender of the film industry and silently allow the ruin of the movie-watching experience as we know it. Alexander Porro is a sophomore in Morse College and works at the Yale Film Study Center. ______________________________________________ â&#x20AC;&#x153;World Intellectual Property Organization. â&#x20AC;&#x153;General Information on Copyright.â&#x20AC;? http://www.wipo.int/copyright/en/ general/about_copyright.html ii 5IK9]MMV0MK\WZ4+PIZTW\\M?IMTLMIVL/ZIMUM< Laurie. Contemporary Intellectual Property: Law and Policy. : OxNWZL=VQ^MZ[Q\a8ZM[[8 iii â&#x20AC;&#x153;Copyright Clauseâ&#x20AC;?, Article I, Section 8, Clause 8, United States Constitution iv =VQ\ML ;\I\M[ +WXaZQOP\ 7NĂ&#x2026;KM š+WXaZQOP\ 4I_ WN  \PM United States and Related Law Contained in Title 17 of the =;;\I\M[+WLMÂş;MK\QWVP\\X"___KWXaZQOP\OW^ title17/. i

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Google Book Search and the Future of Online Copyright Law Radcliffe, Mark F., and Diane Brinson. â&#x20AC;&#x153;Copyright Law.â&#x20AC;? ,4) 8QXMZ 448 =;) P\\X"TQJZIZaĂ&#x2026;VLTI_KWU!!! 2IVP\UT2IV]IZa vi Frumes, Howard M. WIPO Guide on the Licensing of Copyright and Related Rights.: World Intellectual Property OrganibI\QWV  8 ! P\\X"JWWS[OWWOTMKWUJWWS['QL%4^ RRvXBIi8MC&printsec=frontcover&dq=WIPO+guide+o n+the+licensing+of+copyright+and+related+rights&hl=en MQ%7A <A:+A8/O)M4Y5@9+)[I%@WQ%JWWSG result&ct=result&resnum=1&. v

Google Book Search and the Future of Online Copyright Law David Curtis

~

(Creative Commons)

A

s we move into the Digital Age, a new conflict involving copyright law is becoming increasingly important â&#x20AC;&#x201C; the conflict between copyright and free access to information. Copyrights are supposed to protect the rights of individual writers, artists, and thinkers by ensuring that they are the only ones who can make a profit off their work. Effectively, they give people an incentive to create. As it is being applied to the Internet today, however, intellectual property law is stifling innovation instead of encouraging it. A closer look at the Google Books project in particular can offer us a better understanding of the implications of copyright law for the Internet. Since 2004, Google has been scanning the collections of major research institutions and making digital copies of the books available online. Today, the website allows one to search through its online collection of over fifteen million books,i about sixty percent of which are still under copyright, free of charge.ii It provides the full text of books that are in the

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Domestic Law public domain, while limiting access to copyrighted works to “snippets”, short passages of the text surrounding the search term, or alternatively to a limited number of pages – at most twenty percent of the total page count. In 2005, however, the principal trade associations that represent publishers and authors filed suit in order to protect their copyright over their works. They took issue with Google’s ability to profit from their work, even if they themselves might potentially stand to gain from the larger audience that having a searchable version of their book would encourage. In 2009, the parties settled out of court. This settlement will prove greatly influential in coming years for anyone who wishes to provide access to copyrighted work via the Internet. Was the Google Books Project legal? Maybe. Under 17 U.S.C. § 107, one may make copies of an owner’s work without permission so long as that use is fair.iii What “fair” means, however, is a matter for debate; the courts have been notoriously inconsistent in their application of fair use doctrine. Typically, they have favored not-for-profit use that somehow benefits the public, usually for the sake of criticism, education, or scholarship. As a for-profit company that provides customers with a research tool, however, Google only partially meets these criteria. Google has succeeded in appealing to fair use doctrine in the past. In 2006, the adult entertainment magazine Perfect 10 filed suit against both Google and Amazon.com for providing “thumbnail” versions of its copyrighted images on their own websites. The court found in favor of the defendants on fair use grounds, determining that the miniaturized versions of the photos in question were an acceptable form of de minimis copying.iv This was a significant victory for the search engine, whose main function is to direct consumers to the content they are most interested in. Viewing an abbreviated version of other websites allows Google’s consumers to make an informed decision before clicking on any given link. The

Perfect 10 decision provides Google with some legal basis for this status as an internet middleman, since it affirms that providing excerpts of and links to external websites falls within fair use. It would therefore seem that Google Books’ practice of providing snippets of searchable books falls within the realm of de minimis copying as well. What distinguishes the Google Books scenario from Perfect 10 is that the millions of books that Google has made searchable did not have their first incarnation in the digital realm. From the publishers’ and authors’ perspectives, Google made illegal copies of their work and stood to profit as a result. In order to provide readers with snippets, Google had to copy versions of copyrighted works fully, in violation of copyright law. Despite the free promotion that Google Books offers a copied author, the court has come down firmly against such digital copying of entire copyrighted works in the past.v Yet Google’s copies of the books in question are a necessary component of their searchability. The matter is further confused by Google’s for-profit status. Regardless of Google’s claims of de minimis use, the fact remains that the company profits from copies that it has made of copyrighted works, without the permission of the copyright holder. In the digital world, however, the company performs a similar action all the time without the objection of copyright owners. Whenever the Googlebot, Google’s web crawler, finds a website on the Internet, it stores the index of words that website contains in its enormous database.vi Without the Googlebot and web crawlers like it, search engines on the Internet could not practically function. Thus search engine technology has drastically changed how we must think about copyright online. Websites like Google and Yahoo generate advertising revenue without creating any new content of their own, by simply providing users with links and short excerpts from other websites according to their search terms. If we consider these actions to be a derivative work, they raise serious ques-

(Allison Rabkin-Golden)

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Google Book Search and the Future of Online Copyright Law tions of copyright infringement. In a sense, the search engine acts as a parasite on the creative works of other online authors, and moreover does not ask permission before copying their works. The consensus in the online community, however, seems to be that the positives of search engines outweigh these apparent violations of copyright. Without searching, the Internet would be a far less useful resource, and greatly limited in its scope. So digital authors have typically been willing to let search engines profit as an intermediary, since they benefit as well.

(and thus adding substantial value to) copyright-protected material?”ix

In effect, what Google has done with its Google Books project is send the Googlebot out into the analog world. This is an especially interesting scenario because it is one of the few instances in which we may look to the Internet as a precedent for an analog phenomenon. A human “Googlebot” copies each physical book so that it may be indexed and added to the Google Books database. Like the standard Google search engine function, Google Books then provides consumers with both an excerpt from the full text and a hyperlink providing more extensive access to the work. Since most copyrighted books are not available for free online, in Google Books this hyperlink usually leads to websites like Amazon.com where the reader may choose to purchase a copy of the work if he or she wishes, as well as to libraries where the reader may check out the book for free. In the same way that it would be a major obstacle for the Googlebot to ask permission every time it found a new website it wanted to copy, it would have been prohibitively expensive for Google Books to seek permission before copying every book that it has in its collection.vii Such an argument, of course, does not hold up under current copyright law, unless the courts should choose to consider all archiving by search engines fair use. Given the unreliable application of fair use doctrine, however, such recourse is weak at best. Simply put, copyright law is drastically behind the times when it comes to search engines and the Internet.

If Google Books were a library, the answer to this question would be no. Under the terms of the Google Books settlement, though, the answer is yes. Google has agreed to pay 63% of all commercial profits it receives from copyrighted works in its digital library to the owners of the original works.x The fact that Google must compensate copyright owners does not technically prevent other companies from making their own digital libraries under the auspices of fair use. But it does make such a project prohibitively expensive. It is estimated that Google has already invested up to $375 million in creating its digital library,xi which makes the settled profit-sharing scheme a necessary concession for Google if the company wishes to recoup its sunk costs. The way in which the settlement has skirted the question of fair use, however, has led some to worry that Google has created a de facto monopoly over the digitized library market.xii Assuming that any competing company would have to enter into agreement with copyright owners on similar terms to Google’s, the combined upfront cost and limited revenue steam effectively could prevent a successful venture. In this vein, libraries have voiced concern that with such a monopoly Google may choose to charge for access, just as other online research services like LexisNexis and jstor.org do.xiii This possibility is a legitimate concern, but not one that Google will likely ever carry out. The company’s main revenue source is advertising, and unless other companies stop advertising on the Internet, Google will stand by this tried and true method.

The Framers included provisions for copyright law in the Constitution in order “to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”viii It would seem that the increased access to information that the Google Books service provides helps to carry out the framer’s intent. Google has digitized books that were already available to individuals for free – once purchased by the libraries, these books no longer had the potential to provide the copyright owners with monetary compensation. Many books that before were only available to a select few at major research universities now can be discovered and searched by anyone with a computer and the Internet. Thus Google makes access to copyrighted information unprecedentedly easy. The question, then, is whether the benefit to society that Google provides exempts it from having to compensate the copyright owners for the profit that it makes on their works. As one legal scholar has asked, “Should Google be required to share with copyright holders a portion of the revenue that it earns from copyrighting and organizing

In effect, what Google has done with its Google Books project is send the Googlebot out into the analog world.

Even setting aside the question of monopoly, the Google Books agreement has serious implications for the future of online book services, and for the future of online copyrighting in general. There is currently a huge gap between the legal expectations of digital publishers and analog publishers when it comes to online searching. Through the Google Books settlement, entrenched analog publishers have exercised their copyright privileges in a way that digital publishers never have, and may not be able to. Since the search engine has no equivalent in the analog world, it is remarkably unclear whether providing users with access to information should count as fair use. In its basic search function, for the most part Google is merely providing free information about free information; the digital author has no reasonable expectation that Google compensate him for linking to work posted publicly on the Internet. Indeed, if the digital community were to exercise its copyright privileges as a unified front in the same way that analog publishers have done in their suit

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Domestic Law against Google Books, it would become increasingly difficult for search engine companies to stay afloat. Providing access to information is increasingly becoming a commodity in its own right, and one that definitively serves to benefit copyright owners. Any system that required search engines to pay for access to information, or to seek permission before archiving copyrighted material, would be a major step backward. Requiring search engines to pay for the privilege of promoting other websites is unfair to the search engine; it allows for copyright holders to have their cake and eat it too. In agreeing to pay copyright owners a share of their profits, Google has therefore acted shortsightedly with the goal of keeping the Google Books project alive. In the long term, however, the settlement provides a dangerous model for future online copyright regulation.

Pamela. “Google Books Is Not a Library.” Huffington Post 13 Oct 2009. <http://www.huffingtonpost.com/pamela-samuelson/google-books-is-not-a-lib_b_317518.html>. xiii “Google Books Is Not a Library.” Huffington Post 13 Oct 2009. <http://www.huffingtonpost.com/pamela-samuelson/ google-books-is-not-a-lib_b_317518.html>.

David Curtis is a senior in Silliman College and the Publisher of the Yale Literary Magazine. ______________________________________________ Crawford, James. “On the Future of Books.” 14 Oct 2010. <http://booksearch.blogspot.com/2010/10/on-future-ofbooks.html>. ii Hardy, Quentin. “In Defense Of Google Books.” Forbes 25 Sep 2009. <http://www.forbes.com/2009/09/25/books-copyright-internet-intelligent-technology-google.html>. iii “…[T]he fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.” iv Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146 (9th Cir. 2007) v In L. A. Times vs. Free Republic, for example, the Free Republic website had to stop allowing visitors to comment on full-text versions of articles from major news sources, even though it was a non-profit enterprise. Instead, the website now operates in a de minimis fashion, presenting only excerpts of articles along with hyperlinks to their sources. vi Blachman, Nancy and Jerry Peek. “How Google Works.” Google Guide 2 Feb 2007. <http://www.googleguide.com/ google_works.html>. vii Consider, for example, the time and expenses involved with tracking down the copyright owner for an out-of-print book from a publishing company that is no longer in business. viii United States Constitution, Article 1, Section 8, Clause 8. ix Netanel, Neil Weinstock. Copyright’s Paradox, Oxford University Press: New York, 2008, p. 33. x www.googlebooksettlement.com/ xi Netanel, Neil Weinstock. Copyright’s Paradox, Oxford University Press: New York, 2008, p. 31. xii As Professor Pamela Samuelson has noted, “By settling a lawsuit about whether scanning books to index them is copyright infringement or fair use, Google is putting at risk the next guy’s fair use defense for doing the same.” Samuelson, i

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OPINION: Repeal the 17th Amendment

OPINION: Repeal the 17th Amendment Harry Graver

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egardless of ideological persuasion, almost every politician, at one point during the campaign season, has put forth the same tired grievance: “Washington is broken.” Many on the left blame “greedy” special-interest groups while many on the right assign fault to the nature of centralized government. Regardless of the culprit, Washington’s dysfunctional nature seems to be the only sticking point for both parties. Solutions have been attempted to mitigate the causes, but they have come in the form of unconstitutional limits on First Amendment rights or “limits on spending and the growth of government” that never come to be. However, both aspects of Washington’s inoperative malaise can be addressed in a single process – by repealing the Seventeenth Amendment. Getting rid of the Seventeenth Amendment will attend to the left’s desire for campaign finance reform without trouncing on the First Amendment and deal with the need to restore a sense of federalism in the nation.

Before making a case for the Seventeenth Amendment’s repeal, it is first necessary to go into some background on the amendment itself. The most important text of the Seventeenth Amendment is: “The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years; and each Senator shall have one vote. The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislatures.” The Seventeenth Amendment was adopted in the first place to change the founders’ original process (Article 1, Section 3): “The Senate of the United States shall be composed of two Senators from each state, chosen by the legislature thereof for six Years; and each Senator shall have one The 17th Amendment (WikiCommons) Vote.” Essentially, the Seventeenth Amendment established the direct election of senators, who previously were elected by the state legislatures.i The Seventeenth Amendment entered into effect in 1913, as the product of a series of Progressive movement reforms. The roots of the amendment can be found in popular discontent, state by state, with procedural deadlock of the state legislatures in the election process. Angered by a history of scattered instances of bribery and corruption, states, on their own initiative, began to place the election of senators directly in the hands of the people. The movement gained national momentum through the work of William Randolph Hearst, who forged a campaign for reform through the pages of his latest purchase, a muckraking publication called Cosmopolitan. Hearst waged a war of public relations through a set of pieces called “The Treason of the Senate,” where his reporters, with dubious factual foundations, were able to portray senators as crooked servants for the wealthy. All in all, Hearst’s campaign, coupled with the power of the Progressive movement, created a compelling national force. The Seventeenth Amendment became the law of the land on April 8th, 1913.ii

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Domestic Law At first glance, all of this seems to make sense. This is America â&#x20AC;&#x201C; we like democracy, right? Why then, did the founders choose to organize the federal government otherwise? As a general point, the founders had no intent in establishing a direct democracy. The people could be fickle, motivated by emotion, panic or whim, and governmental order would be compromised by the ever-mutable popular will. As Madison explained in Federalist 51: â&#x20AC;&#x153;A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.â&#x20AC;?iii Congressâ&#x20AC;&#x2122; structure was not intended to be a quick facilitator of change, but rather the codification of tempered reason.

idea: â&#x20AC;&#x153;The State Legislatures will jealously and closely watch the operations of this Government, and be able to resist with more effect every assumption of power, than any other power on earth can do; and the greatest opponents to a Federal Government admit the State Legislatures to be sure guardians of the peopleâ&#x20AC;&#x2122;s liberty.â&#x20AC;? The purpose of Senators was to answer to the interest of their state, not a perception of the national good. Through this oversight, federal burdens were to remain light, allowing states to flourish with the smallest degree of centralized intrusion. In the eyes of James Madison, the Senate was to be, â&#x20AC;&#x153;The great anchor of the Government.â&#x20AC;?v The impetus for the Seventeenth Amendment, while certainly founded on good intentions, has had disastrous consequences. The two principal repercussions of the Seventeenth Amendment are: 1) a dangerous extension of the central governmentâ&#x20AC;&#x2122;s reach and 2) a seemingly immutable trajectory of crippling political partisanship. To the first point, before the ratification of the Seventeenth Amendment, the federal government was contained and stable. Its adoption removed the oppositional structures that allowed rapid central expansion, a development which notably began under President Franklin D. Roosevelt. This growth of central power is understandable once we evaluate the new set of incentives senators had to respond to. Instead of answering to state legislatures, who historically struck a conservative balance between federal support (such as funding) and burden (such as tax rates), the senators now had to appeal to the same constituency as the members of the House.

The impetus for the Seventeenth AmendJames Madison (WikiCommons) The founders understood the immense power of a centralized government, and that legislation, capable of unforeseen and unintended consequences, needs to be implemented with the highest degree of prudency. Madison brought this point to light in Federalist 10: â&#x20AC;&#x153;Before taking effect, legislation would have to be ratified by two independent power sources: the peopleâ&#x20AC;&#x2122;s representatives in the House and the state legislaturesâ&#x20AC;&#x2122; agents in the Senate.â&#x20AC;?iv This is the very reason that members of the House hold two year terms, so that they are responsive to the peopleâ&#x20AC;&#x2122;s current desire, and that members of the Senate are given six year terms, so that they can look upon the winds of change with guarded skepticism. George Washington, understanding this necessity, described the Senate as the saucer that â&#x20AC;&#x153;coolsâ&#x20AC;? the hot tea that was House legislation. Moreover, the Senateâ&#x20AC;&#x2122;s purpose was to do more than dictate Congressâ&#x20AC;&#x2122; pace. The reason that state legislatures, rather than any other body, were given the responsibility of choosing their contributions to the Senate was to underscore the necessity of federalism in the Constitution. In a 1789 speech to a Congressional caucus, James Madison expounded upon this

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ment, while certainly founded on good intentions, has had disastrous consequences. At first, this seems like a good idea â&#x20AC;&#x201C; take power from those disconnected fat cats at the state house and give it to the people! However, the desires of the populace are not too different now than they were in the early 20th century: more services and fewer taxes â&#x20AC;&#x201C; an inherent fiscal conundrum. Just look at the looming state bond crisis, where mushrooming federal entitlement spending requirements levied upon the states have exacerbated irresponsible local behavior. Before, it was within the self-interest of state legislatures to serve as a cautious check on federal power. However, without this counterbalance, both bodies of Congress now seek to appease their constituents through direct aid, in the form of federal action. No longer is there a motive for the federal government to contain itself, for it is now, in its entirety, responsive to the same insatiable appetite. The similar set of structural inducements has lead to the crippling political stagnancy that currently defines our House and Senate. As explained before, the role of the senator was never to respond to popular whim, but to judge the national

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OPINION: Repeal the 17th Amendment mood with a withdrawn rationality. However, now that senators’ constituencies have changed, the reliance on lobbyist money and the support of special interest groups almost mandates a perpetual campaign – creating men of political theatrics in place of the noble statesmen of the past. History has shown that those in politics are prone to value job security over national well being. For this reason, we have a federal government that is simply afraid to say no, at the risk of losing popular opinion – it is why we have an unsustainable welfare state and are unable to stop it. Barack Obama ran on a platform of stopping “business as usual” – whatever that means. However, the structural failures of the Senate will prevent even the most charismatic of leaders from ushering in change. Simply put, the Seventeenth Amendment has institutionalized a system of perverse incentives that will only lead to fiscal lavishness and political cowardice. This is not a rebuke of democracy – there is a valued debate on the level of popular participation on a state and local level. However, this is a rebuke of the political circus that is draining our nation’s prosperity and prestige. Repealing the Seventeenth Amendment will finally allow our government to sober up. The question is not whether we must listen to the will of the people – that is the very foundation of our republic. The question is how that popular will should manifest itself. For progress to be sustainable and prudent, checks and balances must be preserved. It is fundamentally impossible for checks and balances to exist in Congress if both the House and Senate answer to the same interest. Harry Graver is a freshman in Davenport College is a member of the Yale Conservative Party. __________________________________________ United States Constitution. Philadelphia: 1787. United States Senate. “Art & History Home Origins & Development Institutional Development Direct Election of Senators.” U.S. Senate. iii Madison, James. Federalist 51. 1788. iv Madison, James. Federalist 10. 1787. v Yoo, John. “Repeal the 17th Amendment?” National Review Online. i

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International Law

Wikileaks and the Law Caroline Tan

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V TI\M 6W^MUJMZ  ?QSQ4MIS[WZO X]JTQ[PML IV ]Vprecedented number of secret military documents onto its website in what the New York Times described as a “mamUW\P KIKPM WN  I Y]IZ\MZUQTTQWV KWVÅLMV\QIT )UMZQKIV diplomatic cables.”1 Most of these documents were dated _Q\PQV\PMTI[\\PZMMaMIZ[[WUMI[ZMKMV\TaI[.MJZ]IZa =V[]ZXZQ[QVOTa\PM[MTMISMLLQ[KTW[]ZM[OMVMZI\MLIÆ]ZZaWN XWlitical and media activity, as the public speculated how foreign nations would respond. In a letter to Julian Assange, the editor-inchief of WikiLeaks, U.S. ambassador to the U.K. Louis Susman I[SML\PI\?QSQ4MIS[ZMNZIQVNZWUX]JTQ[PQVOIVaKTI[[QÅMLUI\MZQIT\PI\KW]TLX]\QVLQ^QL]IT[QV[QOVQÅKIV\PIZU3 Moreover, the State Department Legal Adviser warned Assange that the publiKI\QWVWN ZM[\ZQK\MLUI\MZQIT^QWTI\ML=;TI_0MKTIZQÅML\PI\\PM U.S. would not negotiate with the organization if it chose to pubTQKQbMQTTMOITTaWJ\IQVMLKTI[[QÅMLLWK]UMV\[IVL\PI\?QSQ4MIS[ [PW]TL ZM\]ZV ITT QVNWZUI\QWV IVL LMTM\M KTI[[QÅML UI\MZQIT \PI\ had been copied from government databases.4 In response, Assange accused the U.S. government of taking a confrontational approach and indicated that WikiLeaks would continue to publish the materials. He added, though, that the organization and its media partners planned on publishing the material judiciously to reduce risk to individuals mentioned in the documents.5

Wikileaks’ Logo (WikiCommons)

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?QSQ4MIS[Q[IVQV\MZVI\QWVITVWVXZWÅ\WZOIVQbI\QWV_PW[M¹XZQmary interest is in exposing oppressive regimes in Asia, the former Soviet bloc, Sub-Saharan Africa and the Middle East.” It describes itself as a public service focused on protecting “whistle-blowers, journalists and activists who have sensitive materials to communicate to the public.”6;QVKMQ\[M[\IJTQ[PUMV\QV under The Sunshine Press organization, it has published a large variety of secret documents, from the Standard Operation Procedures at Camp Delta in Guantánamo Bay to contents of Sarah Palin’s private Yahoo account.7 The organization’s commitment to total transparency, however, has incited controversy regarding the relationship between the freedom of the press and protecting national security. Where can we draw the line? Are WikiLeaks actions legally reprehensible? Although the U.S. government and other foreign nations are attempting to prosecute Assange, they UIaNIKMKMZ\IQVLQNÅK]T\QM[QN \PMaKPWW[M\W\ISM\PMQZKWUXTIQV\[ to court.

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Wikileaks and the Law

Other statutes exist that could present further legal problems for WikiLeaks. For instance, 18 U.S.C. § 1030(a) punishes the KWV[KQW][KWUU]VQKI\QWVWN KTI[[QÅMLQVNWZUI\QWVZM\ZQM^ML from a computer with the intent to harm the United States. Provision 641, which prohibits the theft of government property or records, has historically been used to prosecute citizens known to leak secret information to outside sources. Despite the existence of statutes that convict people who SVW_QVOTaLQ[[MUQVI\MKTI[[QÅMLQVNWZUI\QWV\PMZMLWM[VW\ [MMU\WJMI[XMKQÅKTI_XZW[KZQJQVO\PMX]JTQKI\QWVWN LQXTWmatic cables, although government employees who do so are more vulnerable to prosecution than average citizens. Julian

The 1917 Espionage Act was passed under the Wilson Administration at the start of World War I. (WikiCommons) Espionage Act of 1917 The Espionage Act, passed shortly after the U.S. entered World War I in 1917, prohibits U.S. citizens from divulging national defense secrets in order to harm the United States or support other foreign nations. Although some provisions apply strictly to government employees and those with acKM[[\WKTI[[QÅMLQVNWZUI\QWVW\PMZXZW^Q[QWV[IXXTaMY]ITTa to all persons. One such provision is 18 U.S.C. § 793, which prohibits the “gathering, transmitting, or losing [of] defense information” among citizens “with intent or reason to believe that the information is to be used to the injury of the United States, or to the advantage of any foreign nation.”8 Moreover, those who knowingly possess information that is crucial to U.S. national defense and choose to either disclose such information to citizens not entitled to receive it or fail to surrender such knowledge to the U.S. are also subject to prosecution. Provision 794 covers ‘classic spying’ cases and prohibits citizens from aiding foreign nations or communicating information to enemy citizens in times of war. It also criminalizes attempts to extrapolate information related to national defense that could be useful to enemy nations. The punishment for violators is the death penalty, which is also applied to individuals who attempt to gather and transmit information related to American military plans to the enemy during times of war.

Julian Assange (WikiCommons) Assange, an Australian citizen, is neither of the two. With the above statutes in mind, it’s clear that the U.S. has a variety of laws in place to prosecute individuals who knowQVOTa LQ[[MUQVI\M KTI[[QÅML OW^MZVUMV\ LWK]UMV\[ \PI\ could threaten American national security. The situation, however, is not so straightforward. Provision 793, which prohibits the communication, transmission, or delivery of secret information, never explicitly bars the publication of such knowledge. This poses a problem for lawmakers attempting to prosecute Assange, as he and his organization [QUXTa UILM KTI[[QÅML QVNWZUI\QWV I^IQTIJTM \W \PM X]JTQK ZI\PMZ\PIVLQZMK\Ta\ZIV[UQ\\QVO[]KPSVW_TMLOM\W[XMKQÅK individuals. Publication is not equivalent to direct transmission and, as a result, is not necessarily covered under the statute. Nonetheless, some maintain that publication is a form of indirect transmission and, although not exactly the same, is still covered under the scope of the law. /MVMZITTa WVTa \PW[M _PW PI^M [MV\ KTI[[QÅML QVNWZUI\QWV to foreign agents have been prosecuted under the above statutes. Leaks of secret documents to the press are rarely punished as crimes, and, according to the Congressional Research Service, “we are aware of no case in which a pub-

YALE UNDERGRADUATE LAW REVIEW Œ>WT]UM1[[]MCE


International Law and legal jurisdiction. -`\ZILQ\QWV\W\PM=;Q[MY]ITTaLQNÅK]T\)[[]UQVO\PI\\PM Espionage Act does, in fact, apply to foreign citizens who live and conduct their business overseas, there are still legal obstacles to extraditing such suspects to the United States. Few countries consent to extradite individuals based on XWTQ\QKIT WNNMV[M[ IVL Q\ Q[ JMKWUQVO QVKZMI[QVOTa LQNÅK]T\ for the United States to characterize Assange’s behavior as anything other than a political crime. In fact, according to the Congressional Research Service, “espionage, along with treason and sedition, has been recognized as a quintessential example of a purely political offense.”11 The U.S., however, could attempt to seek extradition on other legal grounds unrelated to political offenses, as such crimes enjoy less immunity from extradition. First Amendment Perhaps most intuitively, another issue with prosecuting Assange lies in the U.S. Constitution, which protects the freedom of speech and press and the public’s right to access government information. According to the First Amendment, “Congress shall make no law … abridging the freedom of speech, or of the press.” Despite this seemingly categorical claim, the Supreme Court has historically set limits on an individual’s freedom of speech, including prohibiting citibMV[NZWUNIT[MTaaMTTQVO¹ÅZMºQVIX]JTQK[XIKMIVLKI][QVO a panic.

)OZINÅ\QQV.ZIVKM_Q\P\PMNIKMWN 2]TQIV)[[IVOMUMZOQVO_Q\P>\PM anarchist revolutionary from V for Vendetta. (Creative Commons) lisher of information obtained through unauthorized disclosure by a government employee has been prosecuted for publishing it.”9 The Congressional Research Service goes on to cite possible First Amendment implications that would make such prosecutions questionable, adding that there would be ¹XWTQ\QKITZIUQÅKI\QWV[JI[MLWVKWVKMZV[IJW]\OW^MZVUMV\ censorship.”10 Finally, there may be jurisdictional issues in investigating foreign citizens whose alleged misbehaviors occurred overseas, leading to questions of extraterritorial jurisdiction and extradition to the United States. Jurisdiction Issues Although the Espionage Act undoubtedly applies to American citizens and especially government employees, there is no suggestion that the same holds true for foreign nationals. This UISM[ Q\ LQNÅK]T\ NWZ \PM =; OW^MZVUMV\ \W XZW[MK]\M )[sange under the Espionage Act as he lacks legal ties and allegiance to the U.S. Moreover, because espionage is considered INWZUWN \ZMI[WV\WWVM¼[KW]V\ZaQ\Q[LQNÅK]T\\WIXXTa\PM same rule to foreign nationals who live out of its geographical

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Similarly, the U.S. government may attempt to prosecute Assange irrespective of the Constitution if it feels that Assange’s actions threatened national security. It is generally understood that the government may curtail individual rights and suppress certain types of speech, especially during times of war and violence. Nonetheless, when First Amendment rights are in question, it is the government’s duty to indicate that its own compelling interest is enough to justify enforcement. It must be displayed that the dis[MUQVI\QWV WN  KTI[[QÅML QVNWZUI\QWV _W]TL JM []NÅKQMV\Ta damaging to the foreign relations or national defense of the United States. In United States v. Morison, Samuel LorQVO5WZQ[WV_I[KPIZOML_Q\PXZW^QLQVOKTI[[QÅML[I\MTTQ\M images to Jane’s Defence Weekly, a British defense periodical. Morison’s attorneys argued that the espionage statute LQLVW\IXXTaJMKI][MPM_I[UW\Q^I\MLJaXZWÅ\IVLVW\ political espionage. Nonetheless, the Fourth Circuit rejected his appeal and concluded that Morison’s intent to sell the XPW\W[QVLQKI\MLPMSVM_\PMU\WJMKTI[[QÅMLMVW]OP\WJM of some value to the media.13 5WZQ[WV¼[ KI[M Q[ [QOVQÅKIV\ JMKI][M PM _I[ X]VQ[PML NWZ leaking information to the media without any blatant intent to transmit sensitive information to foreign nations and endanger the national security of his country. Similarly, As[IVOMTMISMLQVNWZUI\QWVPMSVM_\WJMKTI[[QÅML\WUMLQI outlets; by redacting documents that could bring substan

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International Human Rights Law: Is the U.S. Lagging Behind?

tial harm to certain individuals, it’s arguable that Assange, like Morison, didn’t intend to endanger American national security. Nevertheless, Assange could face punishment. In light of all the above issues, however, this seems unlikely, as Assange is not only protected by his foreign citizenship but also by American fears that prosecution would lead to public retaliation against a perceived infringement of First Amendment rights. 1\_QTTJMLQNÅK]T\NWZ=;TI_UISMZ[\WXZW[MK]\M)[[IVOM as it is debatable whether his actions violate the Espionage Act or other statutes concerning the dissemination of classiÅMLQVNWZUI\QWV.]Z\PMZUWZMOQ^MVPQ[NWZMQOVKQ\QbMV[PQX and the fact that his actions were conducted outside of U.S. soil, the United States will face obstacles proving its jurisdiction over this case. Even if such jurisdiction is granted, it remains to be seen whether foreign nations will be willing to extradite Assange to the United States in light of his political offense. Caroline Tan is a freshman in Berkeley College. She also writes for the Yale Daily News. ;\I\M[¼;MKZM\6A<QUM[WVTQVM6W^!P\\X" www.nytimes.com/interactive/world/state secret.html  States’ Secret, NY Times 3 4M\\MZ\W)UJI[[ILWZ;][UIV6W^P\\X"LWKuments.nytimes.com/letters-between-wikileaksand-gov 4 Letter from State Department Legal Adviser Harold HonOR]3WP\W2MVVQNMZ:WJQV[WV6W^P\\X"LWK]ments.nytimes.com/letters-beween-wikileaks-and-gov. 5 4M\\MZ\W)UJI[[ILWZ;][UIV6W^ I^IQTIJTMI\ http://documents.nytimes.com/letters-between-wikileaksand-gov. 6 http://www.wikileaks.org/wiki/WikiLeaks:About. 7 3PI\KPILW]ZQIV:INÅ6W;MKZM\M["2]TQIV)[[IVOM¼[ mission for total transparency. The NewYorker, June 7. 8 The Espionage Act, http://frwebgate.access.gpo.gov/cgibin/getdoc.cgi?dbname=usc&docid=Cite:+18USC793 9 Elsea, Jennifer K. “Criminal Prohibitions on the Publica\QWVWN +TI[[QÅML,MNMV[M1VNWZUI\QWVº+WVOZM[[QWVIT:M[MIZKP;MZ^QKMP\\X"___NI[WZO[OXKZ[[MKZMKa R41404.pdf 10 Elsea, 1. 11 -T[MI  .L\P+QZKMZ\LMVQML =;! !  13 8?MQ[[<PM9]QM\+W]X"=;^5WZQ[WV)>QK\WZaNWZ Secret Government, HARPER’S, September 1989 1

International Human Rights Law: Is the U.S. Lagging Behind? Katherine Haas

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ne of the most notable developments of international law in the last few decades has been the establishment of a framework for enforcement of human rights. Nations across the globe have agreed to adhere to hundreds of documents, including declarations, treaties, covenants, and conventions, that guarantee human rights to all. Although the U.S. has participated in this process, it has also opted out of some of the most important international human rights agreements, one of which is the International Covenant on Economic, Social and Cultural Rights (ICESCR). As the rest of the world has begun to accept the indivisibility of human rights, the U.S. has lagged behind, refusing to recognize economic and social rights as legitimate. Although some very small steps of progress have been made in this area under the Obama administration, by refusing to ratify the ICESCR the United States continues to hold back what could be a source of strength for the international human rights movement, allowing itself to be left behind by human rights promoters around the world. Since the end of World War II, when the horrors of the hoTWKI][\TML\WIZQ[MQV\PMXWX]TIZQ\aIVL[QOVQÅKIVKMWN \PM concept of universal rights, the touchstone for a concrete LMÅVQ\QWVWN \PI\KWVKMX\PI[JMMV\PM=VQ^MZ[IT,MKTIZItion of Human Rights (UDHR). The Declaration, almost unanimously approved by the United Nations General Assembly on December 10, 1948, was the product of a twoyear drafting process in which all UN member states had the opportunity to contribute. No country voted against the Declaration, although several, namely Saudi Arabia, South Africa, and those of the Communist bloc, abstained.1 At the time of its adoption, many nations, including the United States, spoke of the document in quite a laudatory fash-

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International Law

Eleanor Roosevelt with a poster of the Universal Declaration of Human Rights 1949 (WikiCommons) QWV-TMIVWZ:WW[M^MT\\PMVIVWNĂ&#x2026;KQIT=6ZMXZM[MV\I\Q^M of the United States and chairwoman of the Human Rights Committee, expressed the hope that it would become â&#x20AC;&#x153;the Magna Carta of all mankind.â&#x20AC;? Since then, the Declarationâ&#x20AC;&#x2122;s moral authority has only increased. December 10 has been declared Human Rights Day, and claims such as that made on the Declarationâ&#x20AC;&#x2122;s 60th anniversary, that â&#x20AC;&#x153;the Declaration is universal, enduring and vibrantâ&#x20AC;? abound.3 Among the almost universal praise given to the UDHR, which is indeed an important document and the guide for the work of many who wish to promote human rights, it is easy to forget that the Declaration is just that: a declaration. It is not a legally binding treaty. Although it was recognized that there would need to be such a treaty when the UDHR was written, a comprehensive, binding document never surfaced. Rather, the constituent rights of the UDHR were split apart and two separate treaties were created: the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social, and Cultural Rights (ICESCR). While the U.S. did ratify the IC+8:QV!!ITUW[\aMIZ[IN\MZQ\_I[_ZQ\\MVQ\PI[ VM^MZZI\QĂ&#x2026;ML1+-;+:4 For the United States, half of the human rights expressed in the Declaration remain merely optional. Part of the reason for this split is the notion that there are \_W[MXIZI\MKTI[[M[WN P]UIVZQOP\[<PMĂ&#x2026;Z[\IZMKQ^QTIVL XWTQ\QKITZQOP\[<PM[MZQOP\[UISM]X\PMĂ&#x2026;Z[\PITN WN \PM UDHR and constitute the ICCPR. They include things

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like the right to life, the prohibition of slavery, torture, and arbitrary arrest, freedom of expression and freedom of religion, and equality before the law.5 These rights are frequently characterized as negative, meaning that rather than requiring governments to take certain actions, they require governments not to take actions. Under the provisions of the ICCPR, governments will not torture, will not violate freedom of expression, will not arbitrarily arrest their citizens. The second class of human rights is that of economic, social, and cultural rights. These are the rights contained in the second half of the UDHR, and in the ICESCR. They include things like the right to work and to a living wage, the right to form trade unions and to strike, the right to adequate food, clothing, and housing, the right to the highest attainable level of health, and the right to an education.6 Unlike civil and political rights, these rights are characterized as positive. They require that governments take action to either provide for rights directly, or to create the conditions under which private entities can do so. In ratifying the ICCPR but not the ICESCR, the United States demonstrates its approval of the concept that there are two different types of human rights and even refuses to acknowledge that economic and social rights are rights at all. This has been the case for some time. In 1948 Eleanor Roosevelt said â&#x20AC;&#x153;my governmentâ&#x20AC;Śdoes not consider that the economic and social and cultural rights stated in the Declaration imply an obligation on governments to assure the enjoyment of these rights by direct governmental action.â&#x20AC;?7 1V.MJZ]IZa\PM=VQ\ML;\I\M[[PW_ML\PI\Q\[WXQV

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International Human Rights Law: Is the U.S. Lagging Behind?

Mural describing human rights concepts, Turkey (WikiCommons)

ion had not changed when it was the only member of the United Nations to vote against a resolution acknowledging â&#x20AC;&#x153;the right of everyone to have access to safe and nutritious foodâ&#x20AC;? and â&#x20AC;&#x153;the fundamental right of everyone to be free from hunger.â&#x20AC;?8 That the U.S. holds this position is usually explained by historical context. According to Jason OpeĂąa Disterhoft, Demand Dignity Campaigner with Amnesty International USA, U.S. hostility toward economic and social rights â&#x20AC;&#x153;has a lot to do with the continuing legacy of the Cold Warâ&#x20AC;Ś and the demonization of our so-called enemies.â&#x20AC;?9 This dichotomized concept of human rights is far from the only popularly held view. There is another that runs counter to it, supported by human rights activists around the world. According to this theory, known as the indivisibility of human rights, it is not possible for a person to fully enjoy one type of rights without enjoying the others. For instance, although one may supposedly enjoy the right to equality before the law, if one lives in a village in a developing country, miles away from the legal services available in that countryâ&#x20AC;&#x2122;s capital, and does not have enough money to pay for the bus fare to get there, does one really enjoy that right? In this case, the lack of the social or economic right to a decent

wage infringes upon the civil or political right of equality before the law. In another instance, although one may supposedly enjoy the social or economic right to safe working conditions, if one does not have the civil or political right of free expression, and thus cannot demand those rights in the case that they are violated, does one really enjoy the right to safe working conditions at all? Here, the lack of a civil or political right creates an inability to guarantee a social or economic right. From these and other examples, it can be seen that the legal division of human rights into two classes LWM[VW\VMKM[[IZQTaZMĂ&#x2020;MK\\PMZMITQ\aWN PW_\PMaIZMM`perienced on the ground. To choose to validate one set of rights and not the other is, in many cases, to repudiate both. There are many arguments that can be, and have been, made against the legitimacy of economic and social rights. One possible objection is that since the stateâ&#x20AC;&#x2122;s resources are limited, it is unrealistic to saddle the government with the duty of providing a certain level of economic well being for each citizen. Another is that guaranteeing economic and social rights would mean allowing the government to expand so much that it would inevitably infringe upon civil and political rights. Though valid considerations, these objections

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International Law IZMVW\NWZKMN]TMVW]OP\WW]\_MQOP\PMJMVMÅ\[\PI\KWUM from acknowledging that civil, political, economic, social, and cultural rights are indivisible, and should be guaranteed to all people. .WZWVMZI\QÅKI\QWVWN \PM1V\MZVI\QWVIT+W^MVIV\WV-KWnomic, Social, and Cultural Rights does not necessarily entail complete submission to every provision without comment. Reservations, understandings, and declarations can be made. The U.S. has already done this in the case of the ICCPR.10 Furthermore, Disterhoft points out that some of the ICESCR’s constituent rights, such as the right to an education, are already effectively guaranteed in the U.S. Even for those rights that are not guaranteed in the U.S., such as health care, there is evidence that many Americans already JMTQM^M\PMa[PW]TLJMZQOP\[)KKWZLQVO\WI[]Z^Ma Ja\PM7XXWZ\]VQ\a)OMVLI WN ZM[XWVLMV\[[\ZWVOTa agreed that healthcare should be a human right.11 The biggest concern that most have with the ICESCR is that it would require drastic and immediate changes in government policy. The text of the Covenant already guards against this, saying that the parties must “take steps” toward “achieving progressively” the rights listed. The U.S. could choose to make this even clearer by including with its ZI\QÅKI\QWVILMKTIZI\QWV\PI\Q\KWV[QLMZML\PM\ZMI\aI[I statement of “the obligation to promote rather than an immediate legal commitment to perform,” something that the State Department recommended when President Carter ÅZ[\[]JUQ\\ML\PM+W^MVIV\\W\PM;MVI\MNWZZI\QÅKI\QWVQV the late 1970s.13 Finally, it is not as if ratifying the ICESCR is something that is unheard of among developed democracies, or for that matter, any type of nation. One hundred and sixty countries, including Canada, Ireland, France, Germany, and the United Kingdom, are legally bound by the document. In not ratifying the ICESCR, the U.S. is in many ways the odd one out. The fact that the U.S. is one of only a handful of nations that will not ratify the ICESCR also means that it risks its own legitimacy as a human rights promoter. Distherhoft believes that “the U.S. is being left behind when it comes to the human rights movement.”14 Around the world it is rapidly becoming the case that “it’s just intuitive that the two sides of the UDHR are indivisible.”15 Economic and social rights are being acknowledged and promoted, with or without U.S. approval. As Disterhoft puts it, “Civil society IZW]VL\PM_WZTLQ[VW\_IQ\QVONWZ=;ZI\QÅKI\QWVº16 It is true that some progress has been made under the Obama Administration. For instance, in an interview with the Wall Street Journal, Secretary of State Hillary Clinton publicly called several economic and social rights, including “the right to a good job and shelter over your head and a chance to send your kids to school and get health care when your wife is pregnant,” human rights.17 Although such a signal is KMZ\IQVTaI[\MXQV\PMZQOP\LQZMK\QWVQ\Q[NIZNZWUZI\QÅKItion of the ICESCR, something that is still unlikely to hap-

[31]

Wild Strawberry Protest 2008. Words on poster say literally“human rights” (WikiCommons) pen in the near future. :I\QNaQVO\PM1+-;+:_W]TLPI^MJMVMÅ\[VW\WVTaNWZ\PM U.S. and its citizens who are currently denied their economic IVL[WKQITZQOP\[J]\IT[WNWZXMWXTMIZW]VL\PM_WZTLÅOP\ing for those same rights. The fact that a nation as powerful IVL[QOVQÅKIV\I[\PM=VQ\ML;\I\M[Q[VW\JW]VLJa\PM1+-;+:[QOVQÅKIV\Ta_MISMV[\PM+W^MVIV\IVLXZM^MV\[Q\ from reaching its full potential. The United States is certainly not the only nation to blame for the severing of political and civil rights from economic and social ones, nor is it the only nation which could do a great deal to change that situation. Notably, although China is a party to the ICESCR, it has refused to ratify the ICCPR. But the fact remains that while the U.S. is supposedly a world leader in the area of human rights, it still denies that half of the rights contained in the Universal Declaration are rights at all. With the simple IK\ WN  ZI\QNaQVO 1+-;+: Q\ KW]TL UISM I [QOVQÅKIV\ KWVtribution to promoting human freedom and dignity around the world. Katherine Haas is a junior in Saybrook College. She is representing the Yale Chapter of Amnesty. For a detailed account of the drafting and voting process, see Johannes Morsink, The Universal Declaration of Human Rights: Origins, Drafting, and Intent (Philadelphia: 1

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War on a New Front: Cultural Heritage University of Pennsylvania Press, 199)  =6/)7:ZL;M[[ \PXTMVU\OI\ =6,WK )8> !  3 â&#x20AC;&#x153;Human Rights Day: Justice and Dignity for All,â&#x20AC;? United 6I\QWV[ IKKM[[ML 2IV]IZa   P\\X"___]VWZO M^MV\[P]UIVZQOP\[ 4 United Nations Treaty Collection, available at http://treaties.un.org/Pages/Treaties.aspx?id=4&subid=A&lang=en 5 International Covenant on Civil and Political Rights, 16 ,MKMUJMZ!!)Z\[ !! 7NĂ&#x2026;KMWN \PM United Nations High Commissioner for Human Rights, P\\X"___WPKPZWZOMVOTQ[PTI_KKXZP\U 6 International Covenant on Economic, Social, and Cul\]ZIT:QOP\[,MKMUJMZ!!)Z\[7NĂ&#x2026;KMWN \PM=VQ\ML6I\QWV[0QOP+WUUQ[[QWVMZNWZ0]UIV :QOP\[P\\X"___WPKPZWZOMVOTQ[PTI_KM[KZP\U 7 Eleanor Roosevelt, Statement to the United Nations General Assembly on the Universal Declaration of Human Rights, 9 December 1948, available at http:// www.gwu.edu/~erpapers/documents/displaydoc.cfm?_ t=speeches&_docid=spc057137. 8 U.N. General Assembly, 58th Session, â&#x20AC;&#x153;Resolution 186 C<PMZQOP\\WNWWLEÂş):-;  <M`\I^IQTIJTM at http://daccess-dds-ny.un.org/doc/UNDOC/GEN/ 68,.6XLN '7XMV-TMUMV\>W\QVO ZMKWZL I^IQTIJTM I\ P\\X"]VJQ[VM\]VWZO"  QXIK QXIKR[X'XZWĂ&#x2026;TM%^W\QVOQVLM`%>5\MZU%IZM[ 9 Jason Disterhoft, interview with the author, January 11,  10 For full text of Declarations and Reservations, see UN Treaty Collection, http://treaties.un.org/Pages/ >QM_,M\IQT[I[X`'[ZK%<:-)<AU\L[OGVW%1> 4&chapter=4&lang=en#EndDec 11 â&#x20AC;&#x153;Human Rights in the United States,â&#x20AC;? Belden, Russonello & Stewart for The Opportunity Agenda, August  P\\X"WXXWZ\]VQ\aIOMVLIWZOĂ&#x2026;TM[Ă&#x2026;MTLGĂ&#x2026;TM 0]UIV :QOP\[ :MXWZ\   X]JTQK WXQVQWVXLNX  International Covenant on Economic, Social, and CulturIT:QOP\[,MKMUJMZ!)Z\;MK7NĂ&#x2026;KMWN \PM United Nations High Commissioner for Human Rights, P\\X"___WPKPZWZOMVOTQ[PTI_KM[KZP\U 13 Robert B. Owen, Statement to the Senate Committee on Foreign Relations, International Human Rights Treaties, 0MIZQVO[IVL!6W^MUJMZ!!I\  14 Jason Disterhoft, interview with the author, January 11,  15 Jason Disterhoft, interview with the author, January 11,  16 Jason Disterhoft, interview with the author, January 11,  17 Matthew Kaminski, â&#x20AC;&#x153;The Hillary Doctrine,â&#x20AC;? The Wall ;\ZMM\ 2W]ZVIT  )]O][\ ! P\\X"WVTQVM_[RKWU IZ\QKTM;*!    178.html.

War on a New Front: Cultural Heritage Jonathan Desnick

~ â&#x20AC;&#x153;Your Majesty,â&#x20AC;? he said, â&#x20AC;&#x153;this Philistine shouldnâ&#x20AC;&#x2122;t turn ][QV\WKW_IZL[1ÂźTTOWW]\IVLĂ&#x2026;OP\PQUUa[MTN Âş â&#x20AC;&#x153;You donâ&#x20AC;&#x2122;t have a chance against him,â&#x20AC;? Saul replied. 



;IU]MT

History repeats itself again and again when the old and the established laugh at the preposterousness of underdogs who pit themselves against the powerful. And indeed, few real instances have proven this tendency to be wrong. But everything changed with the advent of terrorism. Now, more than ever, we understand at the very deepest level that acts of terrorism are not only illegal, but devastating to nations both physically and spiritually. From a national War on Terrorism to the daily crusades of individual citizens, terrorism is reviled and suppressed it in every way possible. Yet, despite these attempts, a new form of terrorism is on the rise. Drawing international attention and making major headlines in the press, a cultural warâ&#x20AC;&#x201D;this time on the international scaleâ&#x20AC;&#x201D;pits the less developed nations against stronger, more developed ones as Davids against Goliaths. The repatriation of cultural artifacts has mushroomed in recent years, but its underlying causes could be more sinister than just cultural pride. In the pursuit of dubious political agendas, less developed nations have begun to wield the artifacts of their cultural heritages as leverage against the more developed nations that have held them for years. No different from the threats and intimidations used by terrorists for the sake of political gain, the rising use of any and all ancient artifacts of disputed provenance as political pawns must be also addressed as such. This latest form of terrorism poses a threat to that the world simply cannot ignore. The issue of cultural repatriation has come to the forefront largely because of globalization. Spurred by the prevalence of capitalist, consumerist cultural of todayâ&#x20AC;&#x2122;s world, globalization has given rise to the diminishment of cultural differences. Not only do we trade stocks, goods, and technology internationally, but even the very cultural fabric of the

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International Law It has always been easy for stronger countries to exploit less developed ones. At the turn of the century, Americans, English, Germans and French were excavating all over the world in countries like Greece, Egypt, Iraq, and Iran. Though each of the latter nations has an exquisite history evidenced by their wealth of artifacts, none were able to compete politically with the more developed, exploiting nations. Nations like Iran have proved to devastating effect that this is no longer true, but a newfound political power is coming to be realized by previously weaker nations. Though major countries see the disbursal of their cultural heritage as an undeniable loss of their cultural heritage, nations seeking the restitution of ancient artifacts are coming to view their cultural wares as leverage over the developed nations that currently hold them. In a movement spearheaded by nations like Egypt, antiquity has become a political talisman.

The Louvre Museum (Creative Commons) world is becoming increasingly homogenous; in America, we can eat Indian food, and in Peru, they can watch Chinese <>*]\_Q\PPWUWOMVMQ\aKWUM[ITW[[WN K]T\]ZITQLMV\Q\a One reaction against such a fundamental loss has been the adoption of nationalistic policy. Nations assume nationalistic attitudes not only within the political arena, but many times within the cultural—we need to look no further than France to understand such attitudes. But nationalistic claims appeal to pride and popular sentiment especially for less developed nations without a voice on the world stage. And for these nations, while nationalistic attitudes can begin as an assertion of cultural pride, the nature of such attitudes is malleable and disposed to abuse as political weapons. Many question the inequalities that have resulted from cultural imperialism and still more throw their hands up at the question of whether antiquity belongs in one place or another. But it is undeniable that nationalism is the true heart of the issue behind many claims of cultural patrimony.

[33]

-^MZ[QVKM\PM!WNÅKQITX]JTQK]V^MQTQVOWN  \PM*][\WN 9]MMV6MNMZ\Q\Q\PM-OaX\QIVOW^ernment has been demanding the 3,500-year old statue’s return, but negotiations over the artifact, now on display in the Neues Museum QV*MZTQVPI^MM[KITI\ML[QVKM1V! Egypt’s chief archaeologist and Secretary General of the Egyptian Supreme Council of Antiquities, Zahi Hawass, publicly announced that: "There will be no negotiations about the restitution of Nefertiti's bust" (Williams). In addition to the Nefertiti bust, Hawass is also disputing the legality of many world-renowned artifacts removed from Egypt, including the Rosetta Stone in London. Hawass is still seeking the restitution of the bust on legal grounds. Based on new documents that surfaced in Egypt, Hawass claims that the bust does not belong in Germany because it was exported from Egypt illegally in 1913 when German archaeologist and director of the 1913 excavation, Ludwig Borchardt, knowingly mislabeled the bust. “These UI\MZQIT[ KWVÅZU -OaX\¼[ KWV\MV\QWV \PI\ *WZKPIZL\ LQL act unethically, with intent to deceive,” states Hawass. Hawass thus believes that Borchardt, deliberately deceived the Egyptian government in order to transport the bust to Germany. In seeking the restitution of the bust, Hawass has even appealed to UNESCO to intervene to return the best. However, regardless of whether or not the alleged documents are legitimate, the current ownership of the Nefertiti bust does not contradict any international guidelines. At the

YALE UNDERGRADUATE LAW REVIEW Œ>WT]UM1[[]M


War on a New Front: Cultural Heritage

self was an unethical abuse. These requests can not only be construed as acts of political vengeance, but also as threats to other nations and international harmony. AlZMILa0I_I[[I[IĂ&#x2026;O]ZMWV\PM_WZTL[\IOM_PWZMKWOnizes the power and uses of repatriation issues, has taken further action regarding antiquities. Seven months after his request for the Nefertiti bust, Hawass hosted the Conference on International Cooperation for the Protection and Repatriation of Cultural Heritage where representa\Q^M[NZWU\_MV\aĂ&#x2026;^MVI\QWV[\ZI^MTML\W+IQZW\WšNWZUI united front against the old exploiting countriesâ&#x20AC;? (Shultz). There, Hawass announced that Egypt would seek repatriation of six of the worldâ&#x20AC;&#x2122;s greatest antiquities in an attempt to rouse support for a cultural war with the â&#x20AC;&#x153;old exploitingâ&#x20AC;? countries. Other nations have already begun to follow Egyptâ&#x20AC;&#x2122;s example. In fact, China sent a delegation QV\W\PM5M\ZWXWTQ\IV5][M]UWN )Z\QV6M_AWZS and other public museums in the US to document every item for which they could potentially seek restitution. Though they have not yet taken any drastic measures to date, such a possibility impends.

Bust of Queen Nefertiti in Berlinâ&#x20AC;&#x2122;s Neues Museum (WikiCommons) ! =6-;+7 =VQ\ML 6I\QWV[ -L]KI\QWVIT ;KQMV\QĂ&#x2026;K and Cultural Organization) Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, the United Nations convened to construct laws regulating the exchange of cultural heritage across national borders. The bust of Nefertiti, however, arrived in Germany before 1970, and is therefore exempt. The political context of Egyptâ&#x20AC;&#x2122;s request for the bust of Nefertiti reveals the power of antiquities in their use as political weapons. The request to Germany was only one of several that came from Egypt only days after the Egyptian Culture Minister Faruq Hosni lost the election to determine the next general director of UNESCO. In the subsequent LIa[0I_I[[IKK][ML\PM4W]^ZMQV.ZIVKMWN W_VQVOĂ&#x2026;^M stolen fresco fragments from a Luxor museum (Kimmelman). The Egyptian authorities had requested their return previously, but this time the government suspended the Louvreâ&#x20AC;&#x2122;s long-term excavation at Saqqara, near Cairo, and said it would stop collaborating on Louvre exhibitions. France returned the frescos with disconcerting immediacy. Such drastic requests for the return of cultural artifacts made in the days following an unsatisfactory election result is suspicious at best. Egypt turned its displeasure with the UNESCO vote into an act of retribution, demonstrating antiquityâ&#x20AC;&#x2122;s potential as a weapon for intimidation. Hawass may have accused Borchardt for unethical practices, but Hawassâ&#x20AC;&#x2122;s use of cultural artifacts as a political weapon it-

If Hawassâ&#x20AC;&#x2122; cultural war is to be avoided, something must be done. The abuse of a nationâ&#x20AC;&#x2122;s cultural heritage must be checked. If cultural repatriation can be used as leverage for unrelated political agendas, as in the case of the Louvre artifacts, then the issue must be addressed on the international stage. But how? Hawass and representatives of other nations have broken no laws or international guidelines; requesting repartriation of illicit antiquity is legal. However, particularly because the rules regarding antiquity acquired before 1970 are weak, developed nations from which nations like Egypt are seeking the return of antiquities acquired before 1970 are trapped in a dilemma that spans culturally, diplomatically, and legally. )V`QM\QM[_Q\PQV\PMIZKPIMWTWOQKITĂ&#x2026;MTLN]Z\PMZKWUXTQcate the issue. Repatriation would, in any case, interfere with diplomatic relations, but the return of questioned artifacts could in fact prove costly for the antiquities themselves. Archaeology today works closely under the guidance of the host country, but many nations seeking repatriation simply cannot provide adequate security and protection that developed nations can for precious ancient artifacts. In the recent example of the Iraqi National 5][M]UXZQKMTM[[IZ\QNIK\[NMTT\W\PMZI^IOM[WN KWVĂ&#x2020;QK\ Hundreds of objects were damaged, destroyed, or lost, and many more could reach the same fate in the hands of nations that are yet ill equipped for such responsibility. The world is better off with antiquities disbursed among nations, but this isnâ&#x20AC;&#x2122;t to say that only the developed na\QWV[ [PW]TL IZJQ\ZI\M QV\MZVI\QWVIT Y]ITQĂ&#x2026;KI\QWV[ NWZ maintaining artifacts. One model for setting these guidelines is the European Union, which requires nations to UMM\ KMZ\IQV Y]ITQĂ&#x2026;KI\QWV[ JMNWZM QVL]K\QWV 2][\ I[ \PM success and strength of the EU depends on these stan-

YALE UNDERGRADUATE LAW REVIEW Â&#x152;>WT]UM1[[]MCE


International Law

The Temple of Dendur at the Metropolitan Museum of Art in New York. (Creative Commons) dards, the safety of the collective cultural heritage of the world depends on a security standard that nations requesting repatriation must meetâ&#x20AC;&#x201D;though how best to implement such plans without marking out the â&#x20AC;&#x153;old exploiting countriesâ&#x20AC;? as Y]ITQĂ&#x2026;MLIVLšLM^MTWXMLMVW]OPÂşQVIVMTQ\Q[\_IaQ[IVWJstacle to consider. There is ultimately no perfect solution to this problem. As _Q\PIVaQV\MZVI\QWVITLQTMUUIQ\_QTTJMIKPITTMVOM\WĂ&#x2026;VL a practical resolution that will provide a maximum amount of public access and education to artifacts, adequately preserve them, and satisfy both their host and home nations. Imprudent steps that address the issue could cause an escalation in international tensions. Nevertheless, it is clear from several PQOPXZWĂ&#x2026;TMKI[M[_Q\PQVZMKMV\aMIZ[\PI\I[WT]\QWVU][\JM reached. The United Nations is one governing body that could provide such a solution. As an international organization that can provide multilateral resolutions, the United Nations is arguably the best body to orchestrate a cooperation on issues of cultural property ownership and can monitor ill-intended abuses of ancient artifacts in order to curtail a cultural war. The UN should draw up a set of guidelines outlining benchmarks that developing countries must meet before restitution is permitted, much like the European Union has done in considering countries for admittance.

[35]

The United Nations must recognize the threat to justice posed by cultural restitution. With a universal set of guidelines and prerequisites, the possibility of using antiquities as a tool for political terrorism would be drastically reduced. In this battle on a new front, the weaker, â&#x20AC;&#x153;new exploitingâ&#x20AC;? nations poise themselves as a David against the â&#x20AC;&#x153;old exploitingâ&#x20AC;? Goliathan nations, and only international KWWXMZI\QWVKIVZMKWVKQTM\PM[MVM_K]T\]ZITKWVĂ&#x2020;QK\[ Jonathan Desnick is a freshman in Timothy Dwight College. Works Consulted š*MZTQV[6MNMZ\Q\Q<ZW]JTM"-OaX\QIV7NĂ&#x2026;KQIT+ITT[5][M]U *MPI^QWZ ;][XQKQW][Âş  ;XQMOMT 7VTQVM   7K\WJMZ  Kimmelman, Michael. â&#x20AC;&#x153;When Ancient Artifacts Become 8WTQ\QKIT8I_V[Âş6M_AWZS<QUM[7K\WJMZ! Schulz, Matthias. â&#x20AC;&#x153;Zahi Hawass: Egypt's Avenger of the 8PIZIWP[Âş;XQMOMT7VTQVM 5Ia Williams, Sean. â&#x20AC;&#x153;Egypt Showdown with Berlin over Nefer\Q\Q*][\Âş0MZQ\IOM3Ma,MKMUJMZ!

YALE UNDERGRADUATE LAW REVIEW Â&#x152;>WT]UM1[[]M


In Focus: China

In Focus: China Across a Great Wall: Censorship and the Experience of Cinema in the Peopleâ&#x20AC;&#x2122;s Republic of China by Grayson Clary To Professionalize or Not to Professionalize? The Past, Present, and Future of the Chinese Legal System by Marissa Benavides Flickr Creative Commons

YALE UNDERGRADUATE LAW REVIEW Â&#x152;>WT]UM1[[]MCE


International Law

Across a Great Wall: Censorship and the Experience of Cinema in the People’s Republic of China Grayson Clary

~

Anti-censorship protest in Taiwan (WikiCommons)

I

ncreasingly, Western societies in general and the United States in particular have become cognizant of the rapidly expanding global presence of China and its incipient consequences; while questions of the potential impending political and economic impact of such an ascent are bandied back and forth with near obsessive regularity, less has been made of the cultural implications of China’s increasing integration into the international system. Chinese society has historically been strongly resistant to outside cultural pressure, but \PI\ZM[Q[\IVKMQ[[QOVQÅKIV\Ta[\ZIQVMLJaIKKMTMZI\QVO\ZMVL[WN K]T\]ZITIVLXWTQ\QKITOTWJITQbI\QWV;QUQTIZTa\PM implicit demands of the democratic West on the nascent power will render the Chinese government’s habits of censorship and heavy-handed political interference more and more untenable. Whatever the eventual resolution WN \PM[M\MV[QWV[UIaJM\PMQZR]`\IXW[Q\QWVQ[ITZMILaPI^QVO[QOVQÅKIV\ZIUQÅKI\QWV[NWZ\PM_WZTLWN KQVMUI which has itself been subject to a remarkable globalization: in a state of over 1.3 billion citizens, there must QVM^Q\IJTaJM[KWZM[WN XW\MV\QITÅTUUISMZ[_Q\PIUM[[IOM\W[MVLIVIM[\PM\QK\WM`XZM[[IVLIVM_^WQKM\W contribute to the global conversation on cinema.

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YALE UNDERGRADUATE LAW REVIEW Œ>WT]UM1[[]M


Across a Great Wall: Censorship and the Experience of Cinema in the Peopleâ&#x20AC;&#x2122;s Republic of China

The consequences of the rise of China for the international system, and for international cinema, depend both on what the Peopleâ&#x20AC;&#x2122;s Republic wants out of its newfound XW_MZ¡\PI\Q[_PM\PMZQ\M`MZKQ[M[Q\IK\Q^MTaQVIVM_ZWTM WN QV\MZVI\QWVITTMILMZ[PQXWZ_PM\PMZ\PI\QVĂ&#x2020;]MVKMQ[QVstead regionally focused, a mostly passive sort of political OZI^Q\I\QWVIT X]TT ¡ IVL WV \PM QUXIK\ QN  IVa \PI\ +PQnaâ&#x20AC;&#x2122;s rise in global stature has on its internal governmental XZIK\QKM[6MQ\PMZY]M[\QWVQ[MI[QTaIV[_MZML#KWVĂ&#x2020;QK\QVO signals continue to fuel debate among theorists in international relations and foil attempts at political forecasting. 1V \PM Ă&#x2026;Z[\ KI[M \PI\ WN  +PQVIÂź[ \Z]M OWIT[ \PM 8MWXTMÂź[ Republic seems remarkably uninterested in the sort of global guidance that many associate with the superpower status of the United States; in United Nations votes, China almost always opposes intervention in the affairs of other states and rarely exercises its Security Council veto as a tool of diplomacy, with a few rare exceptions usually tied to the status of Taiwan . The Chinese government has also been notably reluctant to support efforts by the United States and other Western nations to sanction or otherwise force the compliance to international consensus of states such as Iran and North Korea . These actions are in keeping with an explicitly articulated diplomatic philosophy that rejects power politics and the pursuit of hegemony . However, Chinaâ&#x20AC;&#x2122;s state interests clearly donâ&#x20AC;&#x2122;t stop at its borders, and the Peopleâ&#x20AC;&#x2122;s Republic has become bolder and bolder of late in asserting these interests both politically and economically; such an aggressive posture is evident in Chinaâ&#x20AC;&#x2122;s military development, particularly of advanced anti-ship missiles and stealth technology that are intended \WLQZMK\TaKPITTMVOM\PM=VQ\ML;\I\M[QV\PM8IKQĂ&#x2026;KIVL QVQ\[M^MZM`XIVLQVOMKWVWUQK[XPMZMWN QVĂ&#x2020;]MVKM_PQKP touches not only near neighbors in Central Asia like Tajikistan and Kazakhstan but also such distant nations as NiOMZQI_PMZM+PQVI[MMS[\WLM^MTWXWQTĂ&#x2026;MTL[IVLMVPIVKM its energy security . Thus, the Peopleâ&#x20AC;&#x2122;s Republic demonstrates an ideological reluctance to engage extensively with the outside world that, in reality, is often trumped by practical concerns. Chinese internal politics are characterized by a similar tug of war, a tension between WestMZVQbQVOLMUWKZI\QbQVOQVĂ&#x2020;]MVKM[IVLI[\ZWVO\MVLMVKa towards conservatism. On the one hand then, the Peopleâ&#x20AC;&#x2122;s Republic has begun experimenting with democratic reforms at the village level and, to a certain degree, within the upper levels of the party establishment ; at the same \QUM\PM[\I\MÂź[P]UIVZQOP\[ZMKWZLZMUIQV[[QOVQĂ&#x2026;KIV\Ta less than stellar, especially as regards freedom of expression. Chinaâ&#x20AC;&#x2122;s cultural interactions with the outside world are an extension of this still developing posture towards the Western world, characterized by competing instincts \W MVOIOM IVL \W _Q\PLZI_# Ă&#x2026;TU ZMXZM[MV\[ JW\P I _Ia for China to present itself to the West and a way for the Peopleâ&#x20AC;&#x2122;s Republic to introduce its citizens to increasingly

Director Ang Lee (WikiCommons)

relevant outside cultures, but in both cases the government IL^IVKM[_IZQTa<PMKQVMUIWN +PQVIQ[IZMĂ&#x2020;MK\QWVWN IVL an extension of this as yet unresolved tension in Chinaâ&#x20AC;&#x2122;s international stance. *aNIZ\PMUW[\NIUQTQIZ+PQVM[MTIVO]IOMĂ&#x2026;TU\W)UMZQKIV KQ\QbMV[IVLQVLMML\PMUW[\NIUQTQIZNWZMQOVĂ&#x2026;TUQVOMVMZIT Q[+ZW]KPQVO<QOMZ0QLLMV,ZIOWVIĂ&#x2026;TU\PI\XZW^QLM[IXpropriate insight into the cinematic interactions between the West and the East and how Chinese-language cinema has JMMV QVĂ&#x2020;]MVKML Ja \PM 8MWXTMÂź[ :MX]JTQKÂź[ OZW_QVO OTWJIT ZWTM<PMUW[\Ă&#x2026;VIVKQITTa[]KKM[[N]TNWZMQOVĂ&#x2026;TUQV\PM=VQ\ed States in its cinematic history, heaped with critical praise and awards in the West , Crouching Tiger represents a fusion of Western and Eastern cultural and cinematic tradi\QWV[ QV I KWWXMZI\Q^M XZWL]K\QWV KWV\M`\ <PM Ă&#x2026;TU Q[ \PM result of collaboration between Chinese, American, Taiwanese, and Hong Kong production companies, shot on location in China under the direction of Taiwanese-American director Ang Lee ; such a remarkable international effort is representative of Chinaâ&#x20AC;&#x2122;s tentative motions towards cultural cooperation with the outside world. While Crouching Tigerâ&#x20AC;&#x2122;s success is atypical, the principle behind its production is not, and over the past decade the Chinese government has

YALE UNDERGRADUATE LAW REVIEW Â&#x152;>WT]UM1[[]MC E


International Law

gradually loosened its formerly restrictive media laws with the goal of easing the process of foreign investment in and KWWXMZI\QWVWV+PQVM[MTIVO]IOMĂ&#x2026;TU[#QVNWZM`IUple, Chinaâ&#x20AC;&#x2122;s State Administration of Radio, Film, and Tele^Q[QWV ITTW_ML  []KP RWQV\ Ă&#x2026;TU XZWRMK\[  0W_M^MZ \PQ[ embrace of cultural exchange is far from wholehearted. The State Administration of Radio, Film, and Television UIQV\IQV[\PMI]\PWZQ\a\W[KZMMV\PM[MRWQV\Ă&#x2026;TUXZWRMK\[ before release for any content it deems unsuitable , and the Chinese government continues to employ heavy censorship JW\PWN +PQVM[MĂ&#x2026;TU[IQUMLI\\PMW]\[QLM_WZTLIVLWN  ?M[\MZVĂ&#x2026;TU[[KZMMVMLQV\PM8MWXTMÂź[:MX]JTQK-IKPaMIZ OW^MZVUMV\KMV[WZ[IXXZW^MWVTa\_MV\aNWZMQOVĂ&#x2026;TU[NWZ release within the country , and these are typically edited for any content that might appear â&#x20AC;&#x153;anti-Chinese,â&#x20AC;? as with Chow Yun-fatâ&#x20AC;&#x2122;s performance in Pirates of the Caribbean: At Worldâ&#x20AC;&#x2122;s End. Along similar ideological veins, citizens of the Peopleâ&#x20AC;&#x2122;s Republic require government approval before []JUQ\\QVOIVa_WZS[\WNWZMQOVĂ&#x2026;TUNM[\Q^IT[IVLKMV[WZ[ block any controversial subject matter ; in opposition to \PM[MXZIK\QKM[IUI\M]ZĂ&#x2026;TUUISMZ[QV\PM8MWXTMÂź[:MX]JTQKPI^MMUJZIKMLIV]VLMZOZW]VLĂ&#x2026;TUUISQVOUW^MUMV\ termed the â&#x20AC;&#x153;Sixth Generationâ&#x20AC;? which is, in many ways, a Chinese New Wave cinema, a stylistic and political reaction IOIQV[\ [\I\MIXXZW^ML Ă&#x2026;TUUISQVO  <PM ZM[]T\ WN  \PM[M KWUXM\QVOKWVKMZV[\PMV¡\PMOZW_QVOK]T\]ZITM`KPIVOM resulting from Chinaâ&#x20AC;&#x2122;s expanding global presence and the Chinese governmentâ&#x20AC;&#x2122;s powerful desire to maintain control W^MZ\PM[MM`KPIVOM[¡PI[JMMV\PMKZMI\QWVWN ILQKPW\WUa QV +PQVM[MTIVO]IOM Ă&#x2026;TU 7V \PM WVM PIVL \PMZM is a Chinese cinema that is state-sanctioned and self-con[KQW][Ta LQZMK\ML I\ \PM ?M[\MZV _WZTL I KQVMUI \aXQĂ&#x2026;ML Ja[]KPĂ&#x2026;TU[I[+ZW]KPQVO<QOMZ0QLLMV,ZIOWV0W][M of Flying Daggers, or Hero. The international nature of \PM[M Ă&#x2026;TU[ TQM[ VW\ WVTa QV \PMQZ KWTTIJWZI\Q^M XZWL]K\QWV but in their very styles, which, while clearly heavily infused _Q\P -I[\MZV \PMUM[ IVL \WXQK[ UISM [QOVQĂ&#x2026;KIV\ KWVKM[sions to the Hollywood style of narrative cinema; for this reason, Crouching Tiger was, counter-intuitively enough, more popular with American audiences than it was with the Chinese themselves, as was Hero in some ways. At the other end of the cinematic spectrum is this Sixth Genera\QWVWN Ă&#x2026;TUUISMZ[_WZSQVOIZW]VLKMV[WZ[PQX\WKZMI\MI cinema that is perhaps more distinctly and honestly Chinese, often making use of hand-held cameras and a quasidocumentary style to address those modern issues that are of true concern to Chinese citizens. Chinese politics, and in particular the questions of censorship and global cultural exchange, have thus become a driving force in the cultural evolution of Chinese-language cinema. )Ă&#x2026;TUQ[IXZWL]K\WN KWV\M`\WN I\QUMIXTIKMIXMWXTM and culture. Chinese-language cinema is no exception, and the political context surrounding the citizens of the PeoXTMÂź[:MX]JTQKWN +PQVIQ[ISMaQVĂ&#x2020;]MVKMQV\PM[\aTM[IVL \PMUM[ WN  \PM Ă&#x2026;TU[ \PI\ \PMa XZWL]KM <PM JQXWTIZQ\a WN 

[39]

Poster advertisement for Pirates of the Caribbean in China (WikiCommons) +PQVM[MTIVO]IOMKQVMUIZMĂ&#x2020;MK\[IN]VLIUMV\IT\MV[QWVQV +PQVM[M XWTQ\QK[ _PW[M ZM[WT]\QWV _QTT PI^M [QOVQĂ&#x2026;KIV\ KWVsequences for international relations and culture. The Peopleâ&#x20AC;&#x2122;s Republic is gradually coming to terms with its potential superpower status, but Chinaâ&#x20AC;&#x2122;s government continues to grapple with the issue of engagement; will Chinaâ&#x20AC;&#x2122;s rise lead to new and expanded intercultural and political exchanges, or will insularity prevail? These questions will be essential to the ongoing evolution both of Chinese diplomacy and of +PQVIÂź[M`XIVLQVOĂ&#x2026;TUQVL][\ZaIVM^WT]\QWV\PI\_QTTPI^M profound consequences for the nature and the magnitude of +PQVIÂź[XZM[MVKMQV\PM_WZTLWN Ă&#x2026;TUIVLQV\PMQV\MZVI\QWVIT community as a whole. Grayson Clary is a freshman in Jonathan Edwards College. He is also a representative of the Yale Film Society. "Taiwan criticises China UN veto." BBC News - Home. P\\X"VM_[JJKKW]SPQM]ZWXM  [\U IKKM[[ML 2IV]IZa  Richter, Paul. "West worries China may undermine Iran sanctions efforts." Los Angeles Times. articles.latimes. KWUR]V _WZTLTINOQZIV[IVK\QWV[  IKKM[[ML2IV]IZa 3 "Beijing likens Cheney criticism to nosy neighbor - Washington Times." Washington Times - Politics, Breaking News, US and World News. http://www.washingtontimes.com/

1

YALE UNDERGRADUATE LAW REVIEW Â&#x152;>WT]UM1[[]M


To Professionalize or Not to Professionalize? The Past, Present and Future of the Chinese Legal System

VM_[UIZ ! Z IKKM[[ML 2IV]IZa 4 Bumiller, Elisabeth. "Chinese and U.S. Military Leaders Hold Talks." New York Times. www.nytimes. KWU_WZTLI[QIUQTQ\IZaP\UT IKKM[[ML 2IV]IZa 5 Wong, Edward. "China Reaches Deep Into Central Asia - NYTimes.com." New York Times. http://www. Va\QUM[KWU_WZTLI[QIKPQVIP\UT'G Z%[KX%[Y%+PQVI <IRQSQ[\IV[\%K[M IKKM[[ML 2IV]IZa 6 Swartz, Spencer, and Simon Hall. "Nigeria, China Sign Major Oil Deal - WSJ.com." Wall Street Journal. http:// WVTQVM_[RKWUIZ\QKTM;*   ! P\UTIKKM[[ML2IV]IZa 7 Xia, Ming. "The Governance Crisis and Democratization in China - New York Times." New York Times. http:// www.nytimes.com/ref/college/coll-china-politics-006.html IKKM[[ML2IV]IZa 8

+ZW]KPQVO <QOMZ 0QLLMV ,ZIOWV   *W` 7NĂ&#x2026;KM 5WRW *W`7NĂ&#x2026;KM5WRWP\\X"JW`WNĂ&#x2026;KMUWRWKWUUW^Q es/?id=crouchingtigerhiddendragon.htm (accessed January  9

+ZW]KPQVO <QOMZ 0QLLMV ,ZIOWV   15,J  <PM Internet Movie Database. http://www.imdb.com/title/ \\!IKKM[[ML2IV]IZa 10

:MKMV\LM^MTWXUMV\[QVUMLQITI_QV+PQVI .ZM[PĂ&#x2026;MTL[ *Z]KSPI][ ,MZQVOMZ ___NZM[PĂ&#x2026;MTL[KWUX]JTQKI\QWV[ XLN[XTIKM[ XLN IKKM[[ML2IV]IZa 11

:MKMV\LM^MTWXUMV\[QVUMLQITI_QV+PQVI .ZM[PĂ&#x2026;MTL[ *Z]KSPI][ ,MZQVOMZ ___NZM[PĂ&#x2026;MTL[KWUX]JTQKI\QWV[ XLN[XTIKM[ XLN IKKM[[ML2IV]IZa  " China sinks Dead Man's Chest | Film | guardian.co.uk  <PM/]IZLQIVP\\X"___O]IZLQIVKW]SĂ&#x2026;TU R]TVM_[IKKM[[ML2IV]IZa 13 +PQVM[M KMV[WZ[ K]\ ]X 8QZI\M[  169=1:-:VM\ Philippine News for Filipinos." Inquirer. http://showbizandstyle.inquirer.net/breakingnews/breakingVM_[^QM_+PQVM[MGKMV[WZ[GK]\G ]XG 8QZI\M[ GIKKM[[ML2IV]IZa 14 "BBC NEWS | Entertainment | Chinese director 'given Ă&#x2026;TUJIV **+6M_[P\\X"VM_[JJKKW]SPQMV\MZ\IQVUMV\ [\UIKKM[[ML2IV]IZa 15 Rose, Steve. " Arts: The fall of Chinese cinema | World news | The Guardian ." The Guardian. http://www. O]IZLQIVKW]S_WZTLI]OKPQVIĂ&#x2026;TU IKKM[[ML 2IV]IZa

To Professionalize or Not to Professionalize? The Past, Present and Future of the Chinese Legal System Marissa Benavides

A

~

s the Chinese Communist Party continues to project its power across the world, it struggles to maintain power within its borders, particularly in the realm of law. If one looks at the legal reforms the Chinese government has enacted in recent decades, it appears that the Chinese Communist Party (CCP) is making efforts to bring about the professionalization of Chinese law along the lines of Western legal models. While such efforts have been successful in urban centers, they have had little effect among more rural communities that have been mired in cultural traditions inherently at odds with the concept of professionalized law. Essentially, these formal, top-down efforts at creating a Western-style â&#x20AC;&#x153;rule of lawâ&#x20AC;? are meeting a cultural stonewall at the local level. Over time, Chinese localities have created their own de facto legal system. This system may not conform to the Western legal standard, but it is suitable for the culture in question, and as such should not be forced out by the imposition of external norms.

YALE UNDERGRADUATE LAW REVIEW Â&#x152;>WT]UM1[[]MCE


International Law

Statues like this one of Confucius at Beijing Language and Culture University abound in Chinese universities. (Allison Rabkin Golden) Building a Harmonious Society

Historical Flaws to the Legal System

One of the fundamental blocks to Western professionalization is the Confucian concept of maintaining a “harmonious society.” Although the modern usage of this phrase has become laden with irony, it nevertheless has incredible ideological power over Chinese citizens, as their social culture is built around this one principle. R.A. Hinde explains, “Chinese morality stems from the Confucian view of the world, which, although experiencing vicissitudes in the twentieth KMV\]Za [\QTT PI[ IV ]VLMZTaQVO QVÆ]MVKMº 6W\ WVTa _I[ harmony among individuals viewed as “the most valuable feature of human existence,” but harmony’s companion, virtue, was seen as “the building of constructive communities.”1 This idea of “community” is key to understanding the complicated nature of Chinese legal development. Its value is moralistic in nature; a successful, harmonious community complies with the order of the universe. To turn to the public institution of law, such as taking a grievance to the local yamun, would be considered morally wrong for the community, even though it may be legally right for the individual.3 In accordance with Confucianism, members of Chinese society believed that “litigation led to… shameless concern in one’s own interests to the detriment of the interests of society.”4 Any citizen who put forth a formal OZQM^IVKM\PMV_W]TLJMTIJMTMLI[[MTÅ[PI[PMZMN][ML\W suffer and thereby preserve social harmony.5

Professional law in China suffered not only from cultural obstacles, but also the vestiges of historical distrust. Law ]VLMZ\PM9QVOLaVI[\a_I[I^QK\QUWN W^MZ_PMTUQVOQVMNÅKQMVKaL]M\WITIKSWN KMV\ZITQbI\QWVIVLWNÅKQITUIVpower, combined with a lack of formal, uniform training across the empire. Local peasants knew that taking disputes to court would more likely cause personal suffering than gain, due to problems such as long processing times for cases, court costs, and the loss of face associated with disturbing the harmony of the community.6 Not only was it socially distasteful to make use of the legal system, it was also more inconvenient.

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The drawbacks inherent in traditional Chinese law led to the phenomenon of local mediation, the practice of settling disputes outside the walls of a yamen. While mediation MVRWaML\ZMUMVLW][XWX]TIZQ\aL]ZQVO\PM9QVO,aVI[\aQ\ was during the rule of Mao Zedong in the mid-twentieth century that local mediation was most strongly promoted as the people’s tool.7 Local mediation has two distinct advantages that appeal to traditional Chinese culture: the delivery of justice from locals who share one’s values, and a reconciliation that allows all parties in contention to save face. Local mediation was favored in China, particularly rural

YALE UNDERGRADUATE LAW REVIEW Œ>WT]UM1[[]M


To Professionalize or Not to Professionalize? The Past, Present and Future of the Chinese Legal System parts of China, because it was justice delivered by a familiar face in a trusted circle of acquaintances, rather than by an unfamiliar judge who would only be part of the community for two years.8 Using a local mediator held a distinct advantage as “Individuals… have tendencies to behave pro-socially and cooperatively towards individuals perceived as members of their own group… People brought up in one culture, having assimilated its precepts into their self-systems, are unlikely to take easily to any other.”9 Second, mediation allowed for UWZM ÆM`QJQTQ\a QV QV\MZXZM\QVO \PM KWVÆQK\ at hand, which allowed locals to “save face” by giving them the opportunity to negotiate their consequences until both parties arrived at an agreement.10 Since the outcome was agreed upon by both parties, no one truly lost, so no one lost respect in the eyes of his associates. Law in Present-Day China Both the Confucian concept of a harmonious society and the historical distaste for NWZUITTMOIT[a[\MU[PI^M[QOVQÅKIV\TaQVÆ]enced the development of professional law in today’s China. In his analysis of Chinese legal reform, scholar Pitman Potter wrote, “While Confucianism and the collectivist norms it has engendered have been severely criticized by many contemporary Chinese thinkers as overly authoritarian and repressive, they remain powerful restraints on the penetration of foreign legal norms associated with liberalism.”11 The Chinese populous is essentially stonewalling attempts to implant Western rule of law in a distinctly non-Western culture.

New regulation standards in action-- this restaurant got a B health rating. (Allison Rabkin Golden)

It is interesting to note the efforts of the Chinese Communist Party (CCP) in overcoming this cultural stonewall by stepping away from the populist ideals of the past towards more professionalized law. Jerome A. Cohen cites the expansion of lawyers’ power in 1996 as an example: Was it coincidence that on the thirtieth anniversary of the launching of China’s infamous Great Proletarian Cultural Revolution, the front-page banner headline of the China Daily trumpeted, “State broadens lawyers’ powers?” …By announcing that the National People’s Congress had just ILWX\ML\PMÅZ[\TI_WVTI_aMZ[[QVKMM[\IJTQ[PUMV\WN \PM People’s Republic of China in 1949, the leadership symbolized its repudiation of an era when lawyers were condemned as the worst.

<PMZMIZMWJ^QW][JMVMÅ\[NWZ\PM++8QVJZQVOQVOIJW]\ the rule of law according to its own interests, such as a more regulated economic development as China continues to cement its place as a giant of the international economy. Of KW]Z[MQ\_QTTIT[WJMVMÅ\NZWUIVQVKZMI[MQVVI\QWVITXIZ\a control. Potter cites the Third Plenum of the Eleventh Central Committee of the Communist Party as an illustration WN  \PM[M JMVMÅ\[# TMOIT XZWNM[[QWVITQbI\QWV _W]TL ¹ZM[\WZM for the regime the monopoly on legitimate coercion that had been lost during the Cultural Revolution.”13 Mediation in Present-Day China Party efforts were not able to overcome local Chinese’ deeply ingrained aversion to professionalized law. So, whether by design or necessity, they allowed the law to adapt to its

YALE UNDERGRADUATE LAW REVIEW Œ>WT]UM1[[]MCE


International Law constituents. Frank Upham describes the modern Chinese judiciaryâ&#x20AC;&#x2122;s informal, morality-based approach to law in rural areas, citing a judge who resorted to travelling to the kang of a debtor to negotiate with a village representative over tea; a policeman who was held accountable for the accidental death of an only remaining son; and a farmer who received an informal relief package the person responsible for his lost leg could not be brought to court.14 These cases were not resolved by a uniform application of law, but rather a subjective application of morality in which the resolution required resorting to unprescribed methods out[QLM \PM Z]TM WN  TI_ <PM \PQZL KI[M QV XIZ\QK]TIZ ZMĂ&#x2020;MK\[ what Potter calls â&#x20AC;&#x153;the tension between formal and informal modes of operationâ&#x20AC;? in the form of guanxi,15 which he says šZMĂ&#x2020;MK\C[E XMZKMX\QWV[ IJW]\ \PM _MISVM[[ WN  QV[\Q\]\QWV[ for managing relationsâ&#x20AC;Ś [it] may serve as a substitute for the norms and processes associated with formal institutions, ITTW_QVO UWZM Ă&#x2020;M`QJTM ZM[XWV[M[ \W QVKZMI[QVOTa KWUXTM` social, economic and political relations.â&#x20AC;?16 The weakness of the legal institution coupled with the use of guanxi has also managed to reinforce traditional distrust of the judiciary, as local judges are frequently deemed corrupt due to their tendencies to bend the law for â&#x20AC;&#x153;relatives, friends, those _PWUNI^WZ[IZMW_MLWZ\PW[MNZWU_PWUJMVMĂ&#x2026;\[KIVJM obtained.â&#x20AC;?17 Compared to this kind of formal adjudication, local mediation is a more trusted and satisfying alternative \WKWVĂ&#x2020;QK\ZM[WT]\QWV The implementation of professionalized law also faces hostility from citizens who view it as the implementation of foreign norms. Wang Shengjun, President of the Supreme Peopleâ&#x20AC;&#x2122;s Court of China, has spoken out against the šPW[\QTM NWZKM[Âş WN  \PM ?M[\ IVL \PMQZ MNNWZ\[ \W QVĂ&#x2020;]MVKM the Chinese legal system in order to â&#x20AC;&#x153;westernize and split China.â&#x20AC;? He has instead urged Chinese citizens to focus on mediation, settlement and popular interests, and claims, â&#x20AC;&#x153;China needs to pursue their own development path, not one dictated by Western models.â&#x20AC;?18 Where Will China Go From Here? ?Q\P[]KPĂ&#x2026;MZKMTa[MXIZI\MLWXQVQWV[WN +PQVM[MIVL?M[\ern legal thought, it seems unlikely that foreign ideals, such as the justice inherent in impartiality, have any chance of spreading throughout China. Political scholar Cao Siyuan made the point, â&#x20AC;&#x153;Without changing the system, trying to overcome local favoritism is like climbing a tree to catch a Ă&#x2026;[PÂş 19 Caoâ&#x20AC;&#x2122;s implication that the current Chinese system Q[QVVMMLWN KWZZMK\QWVZMĂ&#x2020;MK\[IXWX]TIZXMZKMX\QWV\PI\ the rejection of Western professionalized law is a rejection of development and modernization. However, one should not assume Chinese are deliberately eschewing a more intellectualized society; rather, they are using the tools most effective at delivering justice in their society.

it runs contrary to the idea of professionalized law, mediation has enjoyed success and effectiveness as an institution; Potter notes in his review that â&#x20AC;&#x153;the number of additional disputes resolved through mediation and arbitration is burgeoning.â&#x20AC;? He also inadvertently alludes to a future where China will no longer have to remain vigilant against the implementation of Western norms. When speaking about the exportation of these norms to China, he says, â&#x20AC;&#x153;the capacity of liberal industrial economies to promote their preferred regulatory norms as an essential element of globalization derives as much from political and economic power as from the inherent wisdom of the ideas themselves.â&#x20AC;? If this is so, then China will soon have the ability to do unto the West what the West has done unto it. As China rises to prominence, will it try to export its own views? Probably notJ]\Q\_QTTLMĂ&#x2026;VQ\MTaPI^M\PMXW_MZ\W_IZLWNN  pressure from Western governments to reform the Chinese legal system. This forecast of a future China without uniform rule of law can seem troubling to scholars trained in the Western tradition; norms inherent in the rule of law, such as impartiality and uniformity, are often unquestioned as to their validity in governing society. However, one must consider the priorities in constructing a legal system. If a system is to OW^MZVI[WKQM\aQVI_Ia\PI\\PMUIRWZQ\aQ[[I\Q[Ă&#x2026;ML_Q\P the righteousness of the outcome, then the ideals of the system should match the ideals of the society. An experimental approach to the legal system in China, like those delineated in Liebmanâ&#x20AC;&#x2122;s article, has the potential to take the best components of Chinese and Western legal models and mold them into a new system that meets the needs of Chinese society while enabling citizens to interact with the rest of the world from a somewhat familiar legal platform. The phrase â&#x20AC;&#x153;Chinese cultural traditionâ&#x20AC;? can be nebulous, as a society as vast as China will have diverse cultural traditions; however, a few traditions have maintained unquestionable dominance over society over the last few centuries. These traditions, centered on Confucian doctrine, promote a harmonious society over a uniform rule of law; they also incline members of localities to trust those within their social circles over the unknown or distrusted county judges. Furthermore, the informal practice of mediation has allowed Chinese to prosper as they receive morally sound solutions to their problems that would not be availIJTM_Q\PW]\\PMQZ[XMKQĂ&#x2026;K[a[\MU?PQTM+PQVIQ[XZWNM[sionalizing many areas of law, local mediation will always resonate strongly among Chinese citizens as a reasonable, perhaps even preferable, method of dispute resolution. China has long been a country of contradictions; creating law without law would just be one more of their contradictory achievements.

The informal practice of mediation at the local level in +PQVIĂ&#x2026;\[\PMTWKITK]T\]ZMJM\\MZ\PIVZ]TMWN TI_?PQTM

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YALE UNDERGRADUATE LAW REVIEW Â&#x152;>WT]UM1[[]M


To Professionalize or Not to Professionalize? The Past, Present and Future of the Chinese Legal System

Marissa Benavides is a junior in Morse College. She was a student at Peking University, Beijing, in Fall 2010. Hinde, Robert A. "Law and the Sources of Morality." <PM:WaIT;WKQM\a!"!  Cohen, J. A. "Chinese Mediation on the Eve of ModernQbI\QWV 2W]ZVITWN )[QIVIVL)NZQKIV;\]LQM[! 3 John Alan Lehman claims, â&#x20AC;&#x153;[There is a] traditional Chinese view that ethics trump law,â&#x20AC;? in his article â&#x20AC;&#x153;Intellectual Property rights and the Chinese Tradition Section: Philo[WXPQKIT.W]VLI\QWV[Âş2W]ZVITWN *][QVM[[-\PQK[>WT! 6W6W^ 4 Cohen, J. A. "Chinese Mediation on the Eve of ModMZVQbI\QWV  2W]ZVIT WN  )[QIV IVL )NZQKIV ;\]LQM[  !" 5 Id. 6 Id. 7 Lubman, Stanley. â&#x20AC;&#x153;Mao and Mediation: Politics and Dispute Resolution in Communist China.â&#x20AC;? California Law Review, 55.5 (1967): 1 8 )KWUUWVXZIK\QKMQV+PQVI]VLMZ\PM9QVO,aVI[\a 9 Hinde, Robert A. "Law and the Sources of Morality." <PM:WaIT;WKQM\a!"! 10 Clarke, Donald C. â&#x20AC;&#x153;Dispute Resolution in China.â&#x20AC;? JourVITWN +PQVM[M4I_ 11 "Legal Reform in China: Institutions, Culture, and SeTMK\Q^M )LIX\I\QWV  :M^QM_ 4I_  ;WKQIT 1VY]QZa ! "  Cohen, Jerome A. â&#x20AC;&#x153;Reforming Chinaâ&#x20AC;&#x2122;s Civil Procedure: Judging the Courts.â&#x20AC;? The American Journal of Comparative Law 45.4 (1997): 793 13 "Legal Reform in China: Institutions, Culture, and SeTMK\Q^M )LIX\I\QWV  :M^QM_ 4I_  ;WKQIT 1VY]QZa ! " 14 â&#x20AC;&#x153;Who Will Find the Defendant If He Stays With His Sheep? Justice in Rural China.â&#x20AC;? The Yale Law Journal 114  15 â&#x20AC;&#x153;guanxi,â&#x20AC;? lit. â&#x20AC;&#x153;relationships,â&#x20AC;? is the Chinese concept of nurturing oneâ&#x20AC;&#x2122;s connections with others in order to form U]\]ITTaJMVMĂ&#x2026;KQITZMTI\QWV[PQX[#KIVJMXMZ[WVITWZXZWfessional in nature 16 "Legal Reform in China: Institutions, Culture, and SeTMK\Q^M )LIX\I\QWV  :M^QM_ 4I_  ;WKQIT 1VY]QZa ! " 17 Cohen, Jerome A. â&#x20AC;&#x153;Reforming Chinaâ&#x20AC;&#x2122;s Civil Procedure: Judging the Courts.â&#x20AC;? The American Journal of Comparative Law 45.4 (1997): 801 18 Liebman, Benjamin L. "A Return to Populist Legality? Historical Legacies and Legal Reform." Mao's Invisible 0IVL-L8MZZaIVL0MQTUIVV!" 19 Cao Siyuan, â&#x20AC;&#x153;Chinaâ&#x20AC;&#x2122;s Ailing Courts Need Federalist Medicine,â&#x20AC;? Asian Wall St. J., May 9, 1996: 8.  "Legal Reform in China: Institutions, Culture, and SeTMK\Q^M )LIX\I\QWV  :M^QM_ 4I_  ;WKQIT 1VY]QZa ! " 1

"Legal Reform in China: Institutions, Culture, and SeTMK\Q^M )LIX\I\QWV  :M^QM_ 4I_  ;WKQIT 1VY]QZa ! "  However, Donald Clarke does observe in his article â&#x20AC;&#x153;Dispute Resolution in China,â&#x20AC;? that Western states such as the United States have been looking with interest to the Chinese model of mediation as a useful tool to incorporate into their own legal system.  Liebman, Benjamin L. "A Return to Populist Legality? Historical Legacies and Legal Reform." Mao's Invisible 0IVL-L8MZZaIVL0MQTUIVV! 

YALE UNDERGRADUATE LAW REVIEW Â&#x152;>WT]UM1[[]MCE


YULR Interview: Asha Rangappa

YULR INTERVIEW:

Asha Rangappa

Dean of Admissions at Yale Law School by David Chan

for. Students who thrive at Yale are those who like to be in an intimate setting, where they can have small classes and get to know almost all of their classmates and work closely with faculty. These students are able to enjoy what New Haven has to offer, which is a great social scene including fabulous restaurants and theaters, and where they can contribute directly to the underserved populations through the Immigration Clinic or the Landlord-Tenant Clinic, among others. Yale also offers a lot of academic freedom, in terms of choosing courses in and out of the Law School, taking clinics, or pursuing independent research, so itâ&#x20AC;&#x2122;s great for students who want to tailor their legal education to a speKQĂ&#x2026;KQV\MZM[\WZM`XTWZMITW\WN LQNNMZMV\WX\QWV[ Yale also has no grades (that anyone can make sense of) and no class rank. This gives students the freedom to pursue interests beyond the classroom and learn for the sake of learning. Their success doesnâ&#x20AC;&#x2122;t come at the expense of their classmates. As legendary YLS Dean Guido Calabresi X]\Q\[\]LMV\[I\AITMKIVĂ&#x2026;VITTašOM\WNN \PM\ZMILUQTTÂş

Asha Rangappa (Yale Law School) What do you like best about your job as Dean of Admissions at Yale Law School? Thatâ&#x20AC;&#x2122;s an easy one. I get to select the best students in the country to attend (what I think is) the best law school in the country. And most of them come to Yale. From an admissions perspective, it doesnâ&#x20AC;&#x2122;t get better than that. What made you apply to Yale Law School yourself ? What did you enjoy most about your time as a student there? I applied to Yale because it was small, had no grades (more on that below), and an amazing reputation. When I applied to law school, it was largely a no-brainer among applicants that if you got in to Yale, you went. I loved almost M^MZa\PQVO J]\ UW[\ WN  ITT Ua KTI[[UI\M[ ¡ 1 PI^M UWZM and closer friends from law school than from college, which I think is true for a lot of people who attend YLS. Most people donâ&#x20AC;&#x2122;t have that kind of experience in law school, and itâ&#x20AC;&#x2122;s part of what makes Yale unique. What makes YLS the best place to obtain legal education? <PM[KPWWTÂź[[QbMQ\[Ă&#x2020;M`QJQTQ\aIVLQ\[TWKI\QWVIZM\PMZMIsons YLS is the best place to get a law degree. Of course, for some applicants, these same strengths can be seen as weaknesses. So it really depends on what a student is looking

[45]

Can you explain a little bit more on the clinics at YLS and what percentage of students participate in them? Clinics are courses in which you, as a student, have the opportunity to gain hands-on experience by working on legal casework and representing clients. Clinics generally fall into two categories: simulations and live-client clinics. In a simulation, you are essentially â&#x20AC;&#x153;going through the motions.â&#x20AC;? You either work on made-up cases constructed by clinical faculty or on real cases that have concluded. You _ZQ\MJZQMN[Ă&#x2026;TMUW\QWV[IVLIXXMIZQVšKW]Z\ÂşNWZKTQMV\[ who never existed or have already received assistance. At many law schools this is the experience to which you will JMTQUQ\MLQVaW]ZĂ&#x2026;Z[\IVL[MKWVLaMIZ[ In the other type of clinic, the live-client clinic, youâ&#x20AC;&#x2122;re working with real clients on real, on-going legal cases. This QVKT]LM[ UMM\QVO _Q\P aW]Z KTQMV\[ Ă&#x2026;TQVO UW\QWV[ QV ZMIT courts, and representing clients before actual judges and magistrates. You are the attorney for your client. )\AITM4I_;KPWWTITTWN W]ZKTQVQK[IZMTQ^MKTQMV\ Students can start working in a clinic in the spring of their Ă&#x2026;Z[\aMIZIVWX\QWVZMTI\Q^MTa]VQY]M\WA4;<PQ[Q[JMKI][M]VLMZ+WVVMK\QK]\TI_Ă&#x2026;Z[\aMIZ[\]LMV\[KIVIK\]ally appear and present cases in court, under the supervision of a practicing attorney. That means a student can begin representing clients in court his/her 1L year, with TW\[WN O]QLIVKMNZWU4[4[IVL\PMKTQVQKITNIK]T\aWN  course. The clinics range from direct client services to appellate advocacy, and they are not an extracurricular activity, but rather credited courses. While YLS does not have a clinical course requirement, about 80% of Yale students do a clinic before they graduate, and about 40% do more than one.

YALE UNDERGRADUATE LAW REVIEW Â&#x152;>WT]UM1[[]M


Interview: Asha Rangappa

(Grace Patuwo)

Why did YLS choose to move into the three year accelerated JD/MBA program? YLS chose to offer the accelerated program primarily due to interest from both students and faculty in creating a focused program to explore the intersection of law and business. Yale was the third university in the country to offer a threeyear JD-MBA. But unlike other schools offering such a program, Yale’s does not require summer classes. The summer JMNWZM \PM ÅZ[\ aMIZ WN  \PM XZWOZIU IVL []J[MY]MV\ []Umers during the program are open, which means that students can pursue internships and other employment opportunities. The three-year JD-MBA program is structured as follows: ;\]LMV\[[XMVL\PMQZÅZ[\aMIZI\A4;<PMVQV\PM[MKWVL year, participants spend both semesters at SOM, but take one class in the spring at YLS. The third year is spent at YLS. When compared to the four-year program, students lose ability to take one term’s worth of electives at YLS. 0W_M^MZ\PMXZWOZIUQ[M[XMKQITTaJMVMÅKQITNWZ\PW[MQV\MZested in business as it prepares students for the increasingly complex intersection of business and law. What types of summer experiences do you think are helpful for an undergrad who may potentially want to pursue a law degree?

?MLWV¼\M`XMK\WZZMY]QZMIVa[XMKQÅK\aXMWZIUW]V\WN  work experience, whether summer experience or work experience after graduation. Law-related experience is not necessarily going to make an applicant stand out or give them extra brownie points. If a student is not sure about law school and would like to use the summer to explore that decision Ja _WZSQVO QV \PM TMOIT ÅMTL \PI\¼[ OZMI\ IVL 1 MVKW]ZIOM students to do that since going to law school is a big decision, and an expensive one at that. However, if a student wants to use their summer to work on a project or in an area that they IZMLMMXTaQV\MZM[\MLIVLXI[[QWVI\MIJW]\·M^MVQN Q\Q[VWV TI_ZMTI\ML·\PMV\PMa[PW]TLLWQ\_Q\PW]\_WZZaQVOIJW]\ whether that experience will help them get into law school. ?MOM\IXXTQKIV\[_Q\PITTSQVL[WN M`XMZQMVKM[·_WZSQVONWZ VWVXZWÅ\[I[\MIKPMZ[QVKWV[]T\QVOI[RW]ZVITQ[\[QVJIVSQVOM\K·IVL\PW[MM`XMZQMVKM[QVNWZU_PW\PMIXXTQKIV\Q[ and what they bring to the table. So I encourage students to pursue summer experiences that they care about and want to pursue rather than because they think a particular experience will make their applications stronger. How do required courses work at YLS? A4;WNNMZ[Q\[[\]LMV\[]VUI\KPMLÆM`QJQTQ\aIVLNZMMLWU\W LM[QOV I KW]Z[M WN  [\]La \PI\ N]TÅTT[ \PMQZ XZWNM[[QWVIT IVL intellectual interests. Unlike at many other schools where the MV\QZMÅZ[\aMIZQ[KWUXZQ[MLWN ZMY]QZMLKW]Z[M[I\A4;WVTa \PMÅZ[\[MUM[\MZQ[[\Z]K\]ZMLNWZ\PM[\]LMV\)N\MZ\PMÅZ[\ term, students are free to select their own curriculum, includ-

YALE UNDERGRADUATE LAW REVIEW Œ>WT]UM1[[]MCE


Interview: Asha Rangappa

(Grace Patuwo) ing clinical courses. ?Q\P ZM[XMK\ \W \PM ÅZ[\ \MZU MIKP ÅZ[\aMIZ [\]LMV\ I\ A4; JMOQV[ _Q\P NW]Z ZMY]QZML KW]Z[M[ · +WV[\Q\]\QWVIT 4I_+WV\ZIK\[+Q^QT8ZWKML]ZMIVL<WZ\[·WVMWN _PQKP is taken as a “small group” seminar of about 16-17 students. Yale’s small groups, which are at the heart of the ÅZ[\\MZU M`XMZQMVKM IZM ]VQY]M QV TMOIT ML]KI\QWV IVL IZM [QOVQÅKIV\Ta [UITTMZ \PIV \aXQKIT ÅZ[\aMIZ [MK\QWV[ I\ other law schools. They provide students an opportunity to work closely with some of the Law School’s best professors NZWU\PMÅZ[\LIaWN [KPWWT1V[\Z]K\QWVQVTMOITZM[MIZKP and writing is integrated into the substantive course work of the small group, rather than segregated into a separate course, as it is at other schools. )N\MZ\PMÅZ[\\MZU\PMUIQVOZIL]I\QWVZMY]QZMUMV\[IZM an additional 67 units of credit, a class in Criminal Law and Administration, a course substantially devoted to issues of legal ethics or professional responsibility, and the completion of two major papers. Of course, GPA and LSAT score play a critical role in the selection process – but it’s not just about the numbers. So, without revealing any big secrets, can you give a little insight on what the admissions committee is looking for? Because I have fewer offers to make than many law schools, the “soft” factors are super important. In the big picture, one-point differences in LSAT scores or one-hundredth point differences in GPAs are meaningless compared to the actual experiences, interests, and critical thinking skills that [\]LMV\[ IZM OWQVO \W JZQVO \W \PM ÅZ[\ aMIZ KTI[[ ;W IXplicants should focus on these things when preparing their applications. Out of curiosity, who constitutes the admissions committee? )\AITM\PMMV\QZMXMZUIVMV\NIK]T\a·W^MZXMWXTM· serves as the “Admissions Committee.” The admissions

[47]

XZWKM[[_WZS[I[NWTTW_[".QZ[\1ZM^QM_MIKPÅTM.QTM[IZM ZMILQV\PMWZLMZ\PMaJMKWUMKWUXTM\M·QVW\PMZ_WZL[ we do not sort by grades or LSATs. At this stage, I am looking for whether you can 1) perform extremely well acaLMUQKITTaI\AITMIVLUISMI[QOVQÅKIV\KWV\ZQJ]\QWV\W the composition of the incoming class, in terms of (among other things) experience, perspective, leadership, special skills, and future goals. We are very fortunate to have many UWZMXMWXTM_PWÅ\\PMIJW^MKZQ\MZQI\PIV_MPI^MZWWU for in the incoming class. 7VKM1ZM^QM_\PMÅTM[1[MVLIJW]\ WN W]ZIXXTQKIV\ XWWT·KTW[M\WÅTM[·\WW]ZNIK]T\a¹+WUUQ\\MM[º At this stage, each application is sent, in a stack of about ÅTM[\W\PZMMNIK]T\aZMILMZ[-IKPNIK]T\aUMUJMZ][M[ PQ[WZPMZW_VKZQ\MZQI\WZI\MMIKPÅTMWVI[KITMWN  with 4 being the highest (and they have a limited number of each rating to give out). Each faculty member reads inLMXMVLMV\Ta·\PI\Q[\PMNIK]T\aUMUJMZLWM[VW\SVW_ _PW\PMW\PMZ\_WZMILMZ[WN \PMÅTM_QTTJMIVL[W\PMZMQ[ VWLQ[K][[QWVWN \PMÅTM[_Q\PW\PMZXMWXTM·IVLPQ[WZPMZ [KWZM[IZMSMX\KWVÅLMV\QITNZWU\PMW\PMZZMILMZ[ Once the application is circulated through the three readMZ[_MILL]X\PM[KWZM[QV\PM)LUQ[[QWV[7NÅKM)TTIXXTQKIV\[ _PW ZMKMQ^M I  [\ZIQOP\ [ IVL UW[\ _PW ZMceive an 11 (two 4s and a 3) are admitted. There are roughly 50-80 applicants each year who are “presumptive admits” and who bypass the three reader process. Instead, they are reviewed by me and a faculty member who serves as the Chair of the Admissions Committee. These are students who are truly outstanding in M^MZa_IaVW\R][\[KWZM[·IOIQV_MIZM\ZaQVO\WÅTT\PM class with interesting and well-rounded students, not just students who can take tests well. It’s hard to articulate what places a student into the presumptive admit category, so I’ll just borrow Justice Potter Stewart’s view: I know it when I see it.

YALE UNDERGRADUATE LAW REVIEW Œ>WT]UM1[[]M


Interview: Asha Rangappa As evident from our process, we have a very thorough re^QM_XZWKML]ZMQV_PQKPMIKPĂ&#x2026;TMQ[ZMILKIZMN]TTaJaU]Ttiple readers. This process, which has been in place for as long as anyone can remember, allows the perspectives of a JZWILZIVOMWN XMWXTM¡VW\R][\I[MTMK\NM_šILUQ[[QWV[Âş NWTS[¡\WLM\MZUQVM\PMLMX\PIVLLQ^MZ[Q\aWN \PMKTI[[ and also gives each faculty member a personal stake in the W]\KWUM<PMZM[]T\Q[\PMUW[\PQOPTaY]ITQĂ&#x2026;MLQV\MZM[\ing, and talented law school classes in the country and a close knit community for all those who come to Yale. What it means for you, the applicants, is that your chances of getting into YLS are not just based on numbers. In fact, I have had several faculty members tell me that when they ZMILĂ&#x2026;TM[\PMaIZMVW\I[KWVKMZVML_Q\PV]UJMZ[I[\PMa are with some other parts of the application: some focus WV\PMXMZ[WVIT[\I\MUMV\WZ\PM_WZLM[[IaW\PMZ[WV the recommendations, and one even swears by the LSAT _ZQ\QVO[IUXTM?PQTM\PQ[UISM[Q\LQNĂ&#x2026;K]T\\WSVW_š_PaÂş someone does or does not get in, it also means that your entire application, not just your scores, mean a lot to us. How does an applicantâ&#x20AC;&#x2122;s undergraduate institution factor into the process? How do Yalies rank in this system? ?MLMĂ&#x2026;VQ\MTa\ISMQV\WIKKW]V\IVIXXTQKIV\Âź[]VLMZOZIL]I\M QV[\Q\]\QWV ?M KWV[QLMZ \PM LQNĂ&#x2026;K]T\a IVL IKILMUQK rigor of a studentâ&#x20AC;&#x2122;s undergraduate curriculum. Some [KPWWT[ ¡ NWZ M`IUXTM \PM =; [MZ^QKM IKILMUQM[ ¡ IZM VW\WZQW][TaLQNĂ&#x2026;K]T\IVLPI^M[\ZMV]W][XPa[QKITZMY]QZMments alongside the academic ones. A student whom we admit from such a school might have a lower absolute GPA than someone I admit from another school that might be TM[[LQNĂ&#x2026;K]T\IKILMUQKITTa?MPI^M\WTWWSI\I[\]LMV\Âź[ performance in context. We also value institutional diversity, and like to bring in students from a variety of undergraduate schools. So, if you look at our website, we have students from Scripps College, Bob Jones University, and the University of Pittsburgh, for example, in addition to the â&#x20AC;&#x153;typicalâ&#x20AC;? schools you might expect, like Harvard, Yale, and Stanford. Yalies are well represented in each class. This is in part because Yale undergraduates apply to the law school in larger numbers, perhaps because the location is not as much of a deterrent for them as it is for outside students who may have negative perceptions of the city. In addition, Yalies may have a slight advantage in the admissions process because the professors know the caliber of Yale students and it may be easier to evaluate their academic credentials. What would you say, if any, are some general â&#x20AC;&#x2DC;doâ&#x20AC;&#x2122;sâ&#x20AC;&#x2122; and â&#x20AC;&#x2DC;donâ&#x20AC;&#x2122;tsâ&#x20AC;&#x2122; for the personal statement? .QZ[\ 1 _W]TL TQSM \W UMV\QWV \PM  )LUQ[[QWV[ *TWO This past summer and into the fall I wrote a series of blog posts all about what not to do for the personal statement,

called P.S. Boot Camp. For example, â&#x20AC;&#x153;I love to argueâ&#x20AC;? is not a good theme for a personal statement. There is a whole blog post on just this type of essay and why it is not a good idea. )VW\PMZ JQO šLWVÂź\Âş Q[ [TWXXa _ZQ\QVO ¡ QV W\PMZ _WZL[ grammar and typos. You would think that grammar and typos wouldnâ&#x20AC;&#x2122;t be an issue given the caliber of the people who typically apply to Yale, but sloppy writing is one of the biggest deal breakers for our applicants. Iâ&#x20AC;&#x2122;m constantly shocked and amazed, particularly when you compare a candidateâ&#x20AC;&#x2122;s V]UMZQKITXZWĂ&#x2026;TM\W\PMQZ_ZQ\QVO[IUXTM[IVL1[MMZMITTa bad typos and grammatical errors and Iâ&#x20AC;&#x2122;m not really sure what to make of it. As far as â&#x20AC;&#x153;doâ&#x20AC;&#x2122;s,â&#x20AC;? there are some common themes to successful personal statements. Keep in mind that Iâ&#x20AC;&#x2122;m basing my suggestions on what I see working in Yaleâ&#x20AC;&#x2122;s admissions process, and other admissions folks from different schools may disagree. But I think that thereâ&#x20AC;&#x2122;s a way to make your personal statement a good one, and a way to make a good personal statement a great one. A good personal statement provides a coherent narrative of what has brought you to this point (in your life, of applying to law school, or a combination of these two). What this narrative consists of will depend on the person writing it. For some, it may focus on their upbringing or cultural background. For others, it may be an intellectual journey, where KMZ\IQV QLMI[ WZ KW]Z[M[ QVĂ&#x2020;]MVKML aW] )VL NWZ W\PMZ[ Q\ may be one or several experiences, personal or professional, that were meaningful. Whatever the narrative is, the reader OM\[IVQLMIWN \PMUIRWZM^MV\[\]ZVQVOXWQV\[QVĂ&#x2020;]MVKM[ or experiences that make up who you are. This personal [\I\MUMV\N]VK\QWV[M[[MV\QITTaTQSMIVWVXIXMZQV\MZ^QM_¡ Q\Âź[SQVLWN TQSMIOTWZQĂ&#x2026;MLKW^MZTM\\MZQVNIK\?MOM\IVQLMI WN _PWaW]IZM_PI\Âź[OWVMWVQVaW]ZTQNMIVL¡QUXTQKQ\Ta WZM`XTQKQ\Ta¡_PaaW]IXXTQML\WTI_[KPWWT The applicant with a great personal statement takes the above personal statement, and goes a step further by relating the things they have chosen to mention to something that is larger than themselves. I donâ&#x20AC;&#x2122;t mean that they go on to pon\QĂ&#x2026;KI\M IJW]\ \PMQZ W_V XMZ[WVIT XPQTW[WXPa WN  TQNM 1 IT[W donâ&#x20AC;&#x2122;t mean that they have to choose some global issue or XTI\NWZU¡\PQ[Q[VÂź\\PM5Q[[)UMZQKIKWV\M[\?PI\1UMIV is that the great personal statement makes connections between the experiences or events that the applicant has highlighted and, say, a larger idea or a theme that it made the applicant consider or explore further. Or, for someone who wrote about their upbringing or background, perhaps they now evaluate those experiences from a new and different perspective and can make a connection between those experiences and issues they later became interested in. Another way to put this is that this type of personal statement takes [WUM\PQVO\PI\_I[UMZMTaLM[KZQX\Q^M¡IKW^MZTM\\MZ¡IVL UISM[ Q\ QV\W [WUM\PQVO \PI\ Q[ ZMĂ&#x2020;MK\Q^M ¡ IV M[[Ia <PQ[

YALE UNDERGRADUATE LAW REVIEW Â&#x152;>WT]UM1[[]MC E


Interview: Asha  Rangappa allows us to learn not only what you are about and what you’ve done, but also how you think and what matters to aW])ZMÆMK\Q^MXMZ[WVIT[\I\MUMV\LMUWV[\ZI\M[IVIJQTity to think critically and analytically about one’s own experiences, which in turn suggests that the person will be a thoughtful and insightful contributor to the classroom IVL\PMTI_[KPWWTKWUU]VQ\a·IVL\PI\¼[_PI\_MIZM looking for.

JM\W\PMTMOITÅMTL\PMJM\\MZQ\_QTTJM;WQN IVIXXTQKIV\ PI[JMMVIXIZITMOITQVITI_WNÅKMWZ_WZSMLNWZIR]LOM then that might be helpful, again, as a last resort. In order to avoid having this problem in the future, I suggest students plan ahead if they are still in school and thinking of taking time off before applying to law school. They can OM\\PMQZZMNMZMVKM[ÅTML_Q\P4;)+_Q\P_PQKPaW]KIVOM\ IVIKKW]V\NWZÅ^MaMIZ[

What are the general guidelines on what makes a great letter of recommendation? First of all, it is extremely important to have at least two academic references, even if you have been out of school for a while. Academic references are going to carry the most weight. Period. Particularly if you have a weaker part of your application, you really need to have phenomenal academic references that are willing to vouch for your performance as a student. Since most students are admitted through faculty review, it is important to show your academic promise and what you would be like as a student in the classroom through these letters.

Finally, in terms of submitting additional letters, students should only submit more than two letters if the additional recommenders know them well and are going to rave about them; additional letters which are short or perfunctory don’t add anything and can even take away from their application. If you’re going to submit a third letter and you have a choice, say, between an academic reference and a XIZ\VMZ I\ \PM TI_ ÅZU _PMZM aW]¼^M JMMV _WZSQVO · OW with the academic reference. The only exception would be if the partner is a Yale Law School alumnus or someone who has taught here. If the potential recommender has some intimate knowledge of Yale as a former student or lecturer, then a letter from them can carry some weight because although they may not be looking at you from an academic perspective, they have a frame of reference that allows them to compare you to the kind of students who are here. Otherwise, frankly, non-academic references for the third or fourth letters are not all that insightful.

The honest truth is that all else being equal, an applicant who has two or more academic references that attest to the fact that s/he is an intellectual superstar will have an advantage over another applicant who only has one recommendation which speaks to academic strengths and another from an employer that says that s/he was a great team player. It is also important to keep in mind that it is the detail provided in the reference, and not the grade that you received in the class, that matters most. This is a little hard to control since an applicant will (if wise) waive his/her right to read the recommendation. But know that even a detailed ZMNMZMVKMNZWUI<)_PWKIVOQ^M[XMKQÅKM`IUXTM[WN IV applicant’s superior analytical ability, writing, and insights made into the subject material is preferable to a general, perfunctory reference from a big-name prof who gave an applicant an A but can’t remember what you look like. And someone who has worked with an applicant over a XMZQWLWN \QUM·NWZM`IUXTMI[MVQWZ\PM[Q[IL^Q[WZ·_PW can talk about a particular topic explored, the depth of research, and the cogency of the applicant’s argument, is an ideal recommender.

)VaÅVIT_WZL[WN IL^QKMNWZ\PW[MIXXTaQVO\WA4; in the future? Relax! The law school admissions process is extremely stressful, but while it seems huge, there are also more important things in life. Most applicants I see are students _PWM^MVQN \PMaLWV¼\OM\QV\WAITM_QTTOM\QV\W^MZaÅVM TI_[KPWWT[;\IaKWVÅLMV\QV\PQ[NIK\IVL\ISM\PM\QUM\W MVRWa_PI\aW]IZMLWQVOVW_·_PM\PMZQ\Q[[I^WZQVO\PM last year of college (trust me, a decade from now you will give anything to be able to have just one day of it back) or getting everything you can out of the job you are working in before you enter the fast-paced world of law school. EvMZa\PQVO_QTT_WZSW]\ÅVMQV\PMMVL David Chan is a junior in Silliman College.

If an applicant has been out of school for a few years, I would suggest he/she go back to their college professors and see if anyone would be willing to write a letter. Only I[ITI[\ZM[WZ\·IVIXXTQKIV\PI[JMMVW]\WN [KPWWTNWZ 10 years, none of their college professors remember them, M\K·[PW]TL\PMIXXTQKIV\[MMSW]\MUXTWaMZZMKWUUMVdations that will speak to the kinds of things that an academic reference will. So, an applicant would want an employer to address writing and analytical skill, intellectual curiosity, etc. Obviously, the closer the recommender can

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YALE UNDERGRADUATE LAW REVIEW Œ>WT]UM1[[]M


Interview: Guhan Subramanian

YULR INTERVIEW:

Guhan Subramanian

Harvard Law School, Harvard Business School by David Chan

Guhan Subramanian (Harvard Business School)

Guhan Subramanian is the Joseph Flom Professor of Law and Business at the Harvard Law School and the H. Douglas Weaver Professor of Business Law at the Harvard Business School. He is the only person in the history of Harvard University to hold tenured appointments at both HLS and HBS. At HLS he teaches courses in negotiations and corporate law. At HBS he teaches in several executive education programs, such as Strategic Negotiations, Changing the Game, Managing Negotiators and the Deal Process, and Making Corporate Boards More Effective. He is the faculty KPIQZNWZ\PM2,5*)XZWOZIUI\0IZ^IZL=VQ^MZ[Q\aIVL\PM>QKM+PIQZ for Research at the Harvard Program on Negotiation. Prior to joining the Harvard faculty he spent three years at McKinsey & Company in their 6M_AWZS*W[\WVIVL?I[PQVO\WV,+WNÅKM[

What do you like best about your job? The nicest things about being the chair of the JD/MBA program is that I get to spend time with really interesting, thoughtful and successful students who are interested in law and business. The interactions are great, and it is fun to talk to them. Why did you choose to pursue the JD/MBA? I enjoyed it because I was interested in issues of law and business. The way we structure it at Harvard is that you spend one year in the law school and another year in the business school, which are both pretty intensive experiences in themselves. Then you spend the next two years at both schools where you try to combine the law and business perspectives. I found that interesting, and I think that Q[_Pa[\]LMV\[ÅVL\PMXZWOZIUQV\MZM[\QVOI[_MTT What skills does the JD/MBA program offer that I2,WZ5*)ITWVM_QTTVW\'5WZM[XMKQÅKITTaOQ^en the extra opportunity cost of doing JD/MBA, why would a JD/MBA program be worth the time and money? Certainly the JD/MBA does not give you any particular ability about business that doing just a JD would not. And if you want to go into business, why then go to law school? Indeed, it is not obvious on the surface what the two degrees give you. That said, I talk to JD/MBA alums all the time, and the most common things I hear is that they often don’t know the exact reasons why they did the joint proOZIUI\\PM\QUMJ]\QVZM\ZW[XMK\ÅVLITW\WN ^IT]MQV the joint perspective… So I do think that people do their jobs differently because of the joint training that they get in the program.

Harvard Law School Austin Hall (WikiCommons)

How do today’s employers view the JD/MBA program? Does it offer one a career advantage? There is a certain signal that you send when you have both a JD and an MBA. It shows that you are capable of thinking like a lawyer, and also have a certain sophistication about business issues, and that makes someone a more attractive candidate than they would be otherwise. How would you respond to critics who say that a JD/ MBA is a sign of indecisiveness, because the individual is not sure if he wants to go into business or law? I don’t think that is really a criticism. Most people tell me that law and business are so interwoven with each other that a deep ]VLMZ[\IVLQVOWN JW\PQ[IJMVMÅ\IVLVW\IKW[\

YALE UNDERGRADUATE LAW REVIEW Œ>WT]UM1[[]MCE


Interview: Guhan Subramanian

Harvard Gates (WikiCommons) Based on your experience, are JD/MBA graduates more likely to pursue business or legal careers? Why do you think that is the case? In the early years, most graduates started off in law, typiKITTaQVTI_ÅZU[<PMVUW[\WN \PMUUW^MQV\WJ][QVM[[ RWJ[Å^M\WaMIZ[W]\;\IZ\QVOQV\PM¼![IVL\PM[ most went straight into business jobs, usually consulting and banking, and more recently, into hedge funds and pri^I\MMY]Q\a<PI\XZWJIJTaZMÆMK\[\PMMKWVWUaIVL_PI\ was perceived to be a hot industry in those times. But in the past few years, most graduates have been going back to law ÅZU[7N KW]Z[MQ\Q[[\QTT\WWMIZTa\W\MTTQN \PMa_QTT[\IaQV law or move on to the business side. What makes Harvard’s JD/MBA program unique? I guess I won’t try to compare Harvard’s program with other schools because I am not sure what the other schools LWJ]\_PI\1KIV[IaQ[\PI\\PMZMIZMLMÅVQ\MIL^IV\IOM[ to study law and business, and the interaction thereof at the Harvard Law School and the Harvard Business School, which are individually thought to be very pre-eminent in \PW[M \_W ÅMTL[ )VL QV XIZ\QK]TIZ 0IZ^IZL 4I_ ;KPWWT has a large business law faculty, and therefore there are obvious strong connections between the law school and

[51]

business school. Finally, the business school and the law school at Harvard have two very different perspectives. The law school tends to focus more on policy and institutional design while the business school tends to focus on the managerial perspective. So the method of teaching and the philosophies of both schools are so different, it is in some ways the strength of the program to offer these very different perspectives and lenses on the same set of issues. ;W NWZ M`IUXTM \ISM IV Q[[]M TQSM KWV[]UMZ ÅVIVKM IVL KZMLQ\KIZLTMVLQVO·I\\PMTI_[KPWWTXIZ\WN \PMLMJI\M and inquiry focuses on what kinds of rules ought there be around predatory lending. At the business school, the issue is on the ethics from a private sector perspective of whether one should engage in predatory lending, and if so, what are the limits of that kind of activity. That is just an example of how one issue might be approached in different ways at both the law and business schools. I understand that one has to apply to, and be acKMX\ML \W JW\P 0*; IVL 04; QV WZLMZ \W JM WNÅcially accepted to the joint program. Is there a particular person the program is looking for, and how should a potential applicant craft his or her application? The process works in that the applicant applies individu-

YALE UNDERGRADUATE LAW REVIEW Œ>WT]UM1[[]M


Interview: Guhan Subramanian ally to each school, and each school decides on their own whether to admit that applicant or not. Once admitted to both schools, they apply to the program. There is a theoretical cap on the size of the program and if it were to ever come close to that cap, there might be some substantive review of the applications at the joint program level. But historically we have never come close to that cap, so it tends to be pretty perfunctory to be admitted to the joint program once you are admitted to both schools individually. What type of summer experiences would you type a potential undergraduate should pursue if he or she is thinking about the JD/MBA program? I don’t think that is terribly relevant for a JD/ MBA program. Most students in the joint program should have full time work experience between college and the start of the program, because of the business schoolwork requirement. So full time work experience will be more important than summer jobs held during college both at the business school and at the law school. ?PI\ÅVITIL^QKM_W]TLaW]OQ^M\WI[\]LMV\KWVsidering a JD/MBA program? I always thought it was a bad idea to think too hard about what to do and how to do it. Of course, if you want to go to medical school you have to complete all the requirements, and you want to make sure not to miss any requirements

Harvard Business School (Creative Commons) along the way. But I would not make the JD/MBA program or any program an end goal in itself. It is just a means for achieving what you want to achieve professionally and personally. So my advice to a Yale undergraduate is to take KTI[[M[\PI\aW]ÅVLQV\MZM[\QVOIVLZMTM^IV\\WaW]ZW^MZITT career development, and if that is better developed through a JD/MBA, then that’s great and I look forward to seeing you in our program in the future. David Chan is a junior in Silliman College.

YALE UNDERGRADUATE LAW REVIEW Œ>WT]UM1[[]MCE


Special Features

The Myth of the Unaffordable: Avenues to Financing a Law School Education by Tobias Kuehne

T

he costs of a legal education are known to hover around $70,000 per year: $40,000 to $48,000 for tuition, approximately $15,000 for room and board, and an additional $10,000 for miscellaneous expenditures, such as health care, books, and travel. These staggering prices, which are naturally expected to rise, add another weight to the daunting decision of whether to go to law school, and it seems to be only a matter of time until an institution breaks the $50,000 tuition ceiling. >QZ\]ITTa ITT WN  \PM TMILQVO QV[\Q\]\QWV[ WNNMZ \PMQZ [\]LMV\[ I ^IZQM\a WN  I^MV]M[ NWZ UMM\QVO \PW[M KW[\[ <PM[M WX\QWV[ IZM KT]UXML\WOM\PMZ]VLMZ\PM\MZU¹ÅVIVKQITIQLº_PQKPKIV\ISMWV^I[\TaLQNNMZMV\[PIXM[IVL[QbM[I\M^MZaTI_[KPWWT*M[QLM[[\]LMV\IVLXIZMV\KWV\ZQJ]\QWV[\PM\PZMMUIQVXQTTIZ[WN IÅVIVKQITIQLXIKSIOMIZMOZIV\IQLIVLQV[\Q\]\QWVIT[KPWTIZships (need-based and/or merit-based, depending on the institution); term-time work and summer public interest work funded by the law school; and loans. The exciting news, however, is that most top- and middle-tier law schools have instituted loan forgiveness programs and loan repayment assistance programs that help their graduates to pay back their loans (see “Useful Links” for a link to the full list), provided that they meet certain criteria, such as not exceeding a certain income bracket or working in the public interest sector or government service.

Loans

Financial (Grant) Aid

<PMÅZ[\UWZITWN \PMÅVIVKQITIQLXZWKM[[Q[\PI\]VTM[[WVM is able to pay for one’s legal education completely out-ofXWKSM\TWIV[IZMIVQVM^Q\IJTMKWUXWVMV\WN \PMÅVIVKQIT aid package. Every law school expects its students to take out a minimum amount in loans. For example, Stanford M`XMK\[  1 per year, while Yale expects $37,500$39,500 per year.

Beyond the annual amount which the student is expected to take out in loans, institutions may provide their students _Q\PÅVIVKQITIQLQV\PMNWZUWN OZIV\[\PI\LWVW\VMML\W JMZMXIQL)NM_[KPWWT[WNNMZMV\QZMTaVMMLJI[MLÅVIVKQIT aid, whereas others offer aid that is based on either merit or a combination of need and merit (see chart for more detailed information). Institutions with only need-based ÅVIVKQIT IQL XZWOZIU[ I[[M[[ \PM IXXTQKIV\¼[ LM\MZUQVML ÅVIVKQIT VMML \W LMKQLM MTQOQJQTQ\a <PM IXXTQKIV\ PI[ \W submit her income information, as well as that of her parents and spouse, if applicable, upon which the law school determines how much funding to provide. The remaining gap must be closed with money from the student’s personal assets; parental contributions, which generally decrease [QOVQÅKIV\TaWVKM\PM[\]LMV\\]ZV[aMIZ[WTLIVLLQ[IXXMIZQN \PM[\]LMV\Q[!aMIZ[WZWTLMZ6); term-time work; or further loans.

In general, those monies can come from federal sources, such as the Perkins Loan, Federal Direct Loans, or Federal Direct GradPLUS Loans, which are capped at annual IUW]V\[JM\_MMVIJW]\ IVL IVLKWUMI\ KWUXIZIJTaNI^WZIJTMÅ`MLQV\MZM[\ZI\M[3 The remainder of the loan component can be met with loans from private lenders. International students are not eligible for federal loans and usually require an American co-signer able to borrow from private lenders. Yale Law School and Harvard Law School, however, are exceptional cases that offer their international students to take out loans from the institution itself without an American co-signer and at interest rates similar to those of federal loans open to American students.4 5

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Students can also seek outside scholarship money to meet their additional needs. Depending on the institution, outside scholarship money can also be used to reduce student TWIV[ )\ IV QV[\Q\]\QWV I_IZLQVO VMMLJI[ML ÅVIVKQIT

YALE UNDERGRADUATE LAW REVIEW Œ>WT]UM1[[]M


The Myth of the Unaffordable: Avenues to Financing a Law School Education

(Grace Patuwo)

IQL PW_M^MZ \PQ[ XZWKM[[ LWM[ VW\ OW WV QVLMÅVQ\MTa .WZ example, at Yale Law School, scholarship money in excess of $15,000 may not be used to reduce loans, but instead ZML]KM[ÅVIVKQITIQLOZIV\MTQOQJQTQ\aNZWU\PM]VQ^MZ[Q\a7 In comparison, New York University Law School operates WVIVMMLJTQVLILUQ[[QWV[XWTQKaJ]\I_IZL[ÅVIVKQITIQL based on a combination of need and merit to “recruit the strongest possible class.”86A=M^IT]I\M[ÅVIVKQITIQLIXplications individually and determines the amount to be borrowed in each case. Duke Law School offers aid grants and scholarships “on the basis of either merit or merit and need,”9 a trend which suggests that the availability of needJI[MLÅVIVKQITOZIV\IQLI\ITI_[KPWWTTWW[MTaKWZZM[XWVL[ to its ranking against peer institutions: The higher an institution’s place in one of the conventional rankings, the more TQSMTaQ\WNNMZ[VMMLJTQVLÅVIVKQITIQL Summer Public Interest Work, Term Time Work >QZ\]ITTa ITT TI_ [KPWWT[ WNNMZ N]VLQVO NWZ [\]LMV\[ LWQVO summer work in the public interest sector, as well as jobs during the academic term. Students are generally eligible for at least one summer of funding, which typically around $5,000.10 Students are not expected to earn money beyond

their assessed student contribution to pay part of their educational expenses during the summer. During the academic term, students also have the opportunity to work in paid jobs offered through the law school.11 Comparable to the undergraduate system, students can earn wages to meet their student contribution and living expenses. Law schools _Q\P[WTMTaVMMLJI[MLÅVIVKQITIQLPW_M^MZUIaQUXW[M a cap on student earnings, beyond which any excess income ZML]KM[ ÅVIVKQIT OZIV\ IQL MTQOQJQTQ\a 1V \PM KI[M WN  AITM 4I_;KPWWTQVKWUMJMTW_ KIVJM][ML\WZML]KM TWIV[_PMZMI[IVaQVKWUMQVM`KM[[WN  ZML]KM[Ånancial aid eligibility. Loan Repayment Assistance Programs While an estimated minimum debt of $100,000 upon graduation may not appear to indicate that law schools offer JZWILÅVIVKQITIQLXZWOZIU[\PMUW[\KWUXZMPMV[Q^MPMTX is actually available after graduation. Most top- and middletier law schools have adopted their own version of a loan forgiveness program or loan repayment assistance program (see “Useful Links”). The basic motivation of loan forgiveness programs is to support those law school graduates who work in comparatively low-paying jobs in the public interest sector or government service to repay their loans. Usually, a

YALE UNDERGRADUATE LAW REVIEW Œ>WT]UM1[[]MCE


Special Features

at Yale, Harvard, and the University of Michigan Law School, to name a few. Any job in the legal profession (only clerkships are generally excluded) in which the graduate earns an income below the respective institution’s threshold is eligible for loan repayment assistance.15 16 17 In other models, such as that of UC Berkley, the graduate has to have a minimum debt around $100,000 upon graduation to be eligible for loan repayment assistance.18 At Washington University in St. Louis, loan assistance is graduated by income level, and is substantial only for students with extremely low-paying jobs.19 >IVLMZJQT\ WVTa assists in repaying loans issued through the Federal Direct Loan Program. While such restrictions may indicate a stark discrepancy in various loan forgiveness programs’ generosities, the trend is pointing to increasing support, as [M^MZITTI_[KPWWT[QVKT]LQVO=>)IVL=+*MZSMTMaPI^M recently announced plans to revamp their loan repayment assistance programs. Conclusion

(Creative Commons) graduate has to work in a qualifying job, which is either for IVWVXZWÅ\WZOIVQbI\QWV[]KPI[IKIOW^MZVUMV\IT ]VQ\ WZ I XZQ^I\M ÅZU LMLQKI\QVO PITN  WN  Q\[ _WZS I[ XZW bono. Then the university uses the graduate’s income to assess how much of the loan repayments she has to shoulder, while the university pays for the rest.13 The university determines a threshold of income (usually between $60,000 to $70,000 a year), below which the graduate has to contribute nothing to her loan repayments. If the graduate earns more than the designated threshold, then the university LM\MZUQVM[IXMZKMV\IOM\aXQKITTaIJW]\ WN \PMM`cess income she must contribute to her loan payments.14 A hypothetical scenario would be: A graduate from a school with a threshold of $60,000 and a prescribed contribution WN  WN M`KM[[QVKWUMPI[IVIVV]ITTWIVXIaUMV\WN 

1N [PMUISM[ [PMPI[\WKWV\ZQJ]\M  WN  · %  Several loan forgiveness programs stand out among those of their peer institutions. Models that do not restrict loan repayment assistance to public interest jobs can be found

[55]

The general picture that emerges from a survey of oppor\]VQ\QM[QVÅVIVKQVOITMOITML]KI\QWVQ[\PI\TI_[KPWWT[ a) expect their students to live frugally, as loans are an ]VI^WQLIJTM IVL N]VLIUMV\IT XIZ\ WN  \PM ÅVIVKQIT IQL package at every institution, and b) generally do not toss their graduates into the real world leaving them sitting on LI]V\QVOLMJ\[8ZW^QLMLITI_[KPWWTOZIL]I\MÅVL[IRWJ QV\PMTMOITÅMTL[PMKIVKPWW[M\W_WZSQVIPQOPXIaQVO XW[Q\QWV·QV_PQKPKI[MPMZLMJ\_WZZQM[TM[[MVKWV[QLMZIJTaJMKI][MWN PMZQVKWUM·WZQVITW_MZXIaQVOXW[Qtion in the public interest sector, which also alleviates debt concerns as her alma mater’s supportive loan repayment assistance kicks in. On the other hand, Law Schools seem to deliberately avoid relieving their students to take out any loans at all, since grants generally only become available once the student has taken out a base amount in loans [MM)XXMVLQ`<MZU\QUM_WZSWZW\PMZUMI[]ZM[Ja the student to reduce the need to take out loans therefore WVTa_WZS\WZML]KMOZIV\I^IQTIJQTQ\aI\ÅZ[\_PQKPUISM[ it almost obligatory for the prospective public interest lawyer to take advantage of her school’s loan forgiveness program. Despite this drawback, the main moral to be taken away is that, while, the price of law school may seem staggering, most law schools have installed mechanisms to diffuse the weight of those costs and make it bearable. And for a student who is admitted to several institutions, a OMVMZW][ÅVIVKQITIQLXIKSIOMUIaJMKWUMIVQUXWZ\IV\ factor in her decision which Law School to attend. Appendix 1: Useful Links Financial Aid Handbooks: 1. Yale: http://www.law.yale.edu/documents/pdf/Financial_Aid/FinAidHandbook.pdf  ;\IVNWZL" P\\X"___TI_[\IVNWZLML]XZWOZIU\]-

YALE UNDERGRADUATE LAW REVIEW Œ>WT]UM1[[]M


The Myth of the Unaffordable: Avenues to Financing a Law School Education

Q\QWVRLLWK0IVLJWWS!XLN  ,]SM" P\\X"___TI_L]SMML]ILUQ[Ă&#x2026;VIVKQIT handbook 4. U Michigan: http://www.law.umich.edu/currentstudents/studentservices/handbook/Documents/handJWWSXLN 

grams: http://www.equaljusticeworks.org/resources/student-debt-relief/law-school-lraps/list-law-school-lraps 13. The Equal Justice Works website provides a useful over^QM_ NWZ XZMTI_ ]VLMZOZIL[ M`XTWZQVO \PMQZ WX\QWV[ \W Ă&#x2026;nance Law School: http://www.equaljusticeworks.org/prelaw 14. Law School ranking by tuition: http://www.ilrg.com/ rankings/law/tuition.php/1/desc/Tuition 15. A great tool for searching scholarships and calculating costs: http://www.admissionsdean.com/paying_for_law_ school 16. The same website offers pie charts showing percentages WN 4I_;KPWWT[\]LMV\[ZMKMQ^QVOĂ&#x2026;VIVKQITIQL"P\\X"___ admissionsdean.com/law_schools/yale-law-school/tuitionIVLĂ&#x2026;VIVKQITIQL OMVMZITPMTX[Q\M\WĂ&#x2026;VL[KPWTIZ[PQX["P\\X"___]TQVS[ com/lawschoolscholarships-lawschoolgrantsaid.htm 18. another general guide: http://lawschool.about.com/ WLĂ&#x2026;VIVKQITUIVIOMUMV\IĂ&#x2026;VIVKQITIQLP\U ! \<PM WNĂ&#x2026;KQIT 4;)+ [Q\M WV 4I_ ;KPWWT Ă&#x2026;VIVKQIT IQL" P\\X"___T[IKWZORLĂ&#x2026;VIVKMĂ&#x2026;VIVKQITIQLW^MZ^QM_I[X

General Financial Aid sites of various institutions: 5. Harvard: http://www.law.harvard.edu/prospective/jd/ Ă&#x2026;VIQLQVLM`P\UT 6A="P\\X"___TI_Va]ML]Ă&#x2026;VIVKQITIQLQVLM`P\U  =8MVV" P\\X"___TI_]XMVVML]XZW[XMK\Q^MRLĂ&#x2026;nancing.html  =>)" P\\X"___TI_^QZOQVQIML]P\UTXZW[XMK\Q^M[ Ă&#x2026;VIQLĂ&#x2026;VIQLP\U 9. Washington University: http://www.law.washington. ML]Ă&#x2026;VIQL  = +PQKIOW" P\\X"___TI_]KPQKIOWML]Ă&#x2026;TM[Ă&#x2026;TM Handbook.pdf 11. UC Berkeley: http://www.law.berkeley.edu/58.htm Miscellaneous )N]TTTQ[\WN 4I_;KPWWT[_Q\P4WIV.WZOQ^MVM[[8ZW-

)XXMVLQ`"0MZMIZM\_W[IUXTMĂ&#x2026;VIVKQITIQLXIKSIOM[WN  two of the most generous Law Schools, Yale and Harvard

minus minus minus minus equals

Total Cost of Attendance ;\]LMV\-IZVQVO[+WV\ZQJ]\QWV Student Assets contribution Parental Contribution Spouse Contribution Your Amount of Need

$70,450

 $ 1,000 $ 5,000 $0 $61,950

plus plus

Base Loans /ZIV\)QL

$37,500



minus minus minus minus equals

;\]LMV\-IZVQVO[+WV\ZQJ]\QWV Student Assets contribution Parental Contribution Spouse Contribution Your Amount of Need

 $ 1,000 $ 5,000 $0 $61,950

plus plus plus

Outside Scholarship *I[M4WIV[  /ZIV\)QL 

$ 5,000









 

Fig.1: Example Financial Aid Package Yale Law School: Grant Aid kicks in after the minimum loan has been taken out, scholarships can be used to reduce loans23

YALE UNDERGRADUATE LAW REVIEW Â&#x152;>WT]UM1[[]MCE


Special Features

minus minus equals

Student Budget Assessed Student Contribution Assessed Parent Contribution Demonstrated Need

plus plus plus

.MLMZIT;\INNWZL4WIV[  Most Favorable Available Loans HLS Grant

Scenario 1: Eligible for HLS Grant (need greater than $38,600)

Scenario 2: Eligible for Loans only (need less than $38,600)

$ 70,100 $ 4,000 $ 9,600 $ 56,500

$ 70,100 $ 4,000 $ 35,000 $ 31,100

  $ 16,100 $ 17,900







Fig.1: Example Financial Aid Package Harvard Law School: Grant Aid kicks in after the minimum loan has been taken out24

Tobias Kuehne is a junior in Branford College.

http://www.law.stanford.edu/program/tuition/jd/ LWK0IVLJWWS!XLN X IKKM[[ML 5IZKP    http://www.law.yale.edu/documents/pdf/Financial_ )QL.QV)QL0IVLJWWSXLNXIKKM[[ML5IZKP  3 http://www.law.yale.edu/documents/pdf/Financial_ )QL.QV)QL0IVLJWWSXLNXIKKM[[ML5IZKP  4 Ibid, p.14 5 http://www.law.harvard.edu/current/sfs/basics/policy/ QV\MZVI\QWVITP\UTIKKM[[ML5IZKP  6 [MM^IZQW][ร…VIVKQITIQLPIVLJWWS[QVยน=[MN]T4QVS[ยบNWZ details 7 http://www.law.yale.edu/documents/pdf/Financial_ )QL.QV)QL0IVLJWWSXLNXIKKM[[ML5IZKP  8 http://www.law.nyu.edu/financialaid/scholarships/inLM`P\UIKKM[[ML5IZKP  9 P\\X"___TI_L]SMML]ILUQ[ร…VIVKQIT IKKM[[ML 5IZKP  10 [MM^IZQW][ร…VIVKQITIQLPIVLJWWS[QVยน=[MN]T4QVS[ยบNWZ details 11 Ibid.  http://www.law.yale.edu/documents/pdf/Financial_ )QL.QV)QL0IVLJWWSXLNX IKKM[[ML5IZKP  13 [MM^IZQW][ร…VIVKQITIQLPIVLJWWS[QVยน=[MN]T4QVS[ยบNWZ details 14 Ibid. 15 http://www.law.yale.edu/documents/pdf/Financial_ )QL.QV)QL0IVLJWWSXLNXIKKM[[ML5IZKP  16 http://www.law.harvard.edu/current/sfs/lipp/index. P\UTIKKM[[ML5IZKP  17 http://www.law.umich.edu/currentstudents/financialaid/Documents/debtmanagement.pdf, p.1 (accessed 5IZKP  18 http://www.law.berkeley.edu/194.htm (accessed March   19 P\\X"TI__][\TML]4:)8IKKM[[ML5IZKP  1

[57]

http://law.vanderbilt.edu/academics/clinical-legal-education/loan-repayment-assistance-program/download. I[X`'QL%! XIKKM[[ML5IZKP   P\\X"___TI_^QZOQVQIML]P\UTVM_[G[XZ^TNX P\UIKKM[[ML5IZKP   h t t p : / / b e r k e l e y. e d u / n e w s / m e d i a / r e l e a s M[!!GTWIVNWZOQ^MVM[[[P\UT IKKM[[ML 5IZKP    http://www.law.yale.edu/documents/pdf/Financial_ )QL.QV)QL0IVLJWWSXLNXIKKM[[ML5IZKP  http://www.law.harvard.edu/current/sfs/basics/cost/ XIKSIOM[P\UTIKKM[[ML5IZKP 

YALE UNDERGRADUATE LAW REVIEW ยŒ>WT]UM1[[]M


Kosovo: The Country’s Unique Path to Independence and Its Status in International Law

Kosovo: The Country’s Unique Path to Independence and Its Status in International Law The YULR chats with Garentina Kraja: native of Kosovo, former World Fellow and current Yale undergraduate Garentina Kraja has reported on political issues, security, terrorism, and economics in Kosovo, Macedonia, and Albania for the Associated Press. At age 19, she began working as a journalQ[\ KW^MZQVO \PM KWVÆQK\ QV 3W[W^W QVQ\QITTa NWZ 3WPI ,Q\WZM 3W[W^W¼[ ÅZ[\ QVLMXMVLMV\ VM_[XIXMZ )V IK\Q^Q[\ [PM IT[W helped establish the post-pessimists, a group of young people from the former Yugoslav states who have held “ethnic tolerance” conferences throughout Europe. Kraja was one of the ÅZ[\RW]ZVITQ[\[\WZMXWZ\WV\PMZMJMT3W[W^W4QJMZI\QWV)ZUa As a result of her coverage of sensitive topics, she was eventualTaNWZKML\WÆMM\W5IKMLWVQI_PMZM[PMKWV\QV]MLPMZZMXWZ\ing as a refugee. After the war ended and Kosovo was placed under UN rule, Kraja reported on Kosovo’s Serb minority who faced reprisal attacks by ethnic Albanians. She is concurrently studying for both her Bachelor’s and Master’s Degrees at Yale. YULR: ,M[XQ\M PI^QVO WNÅKQIT =VQ\ML 6I\QWV[ LQ[IXproval in 2007, do you think that Kosovo should have declared independence the way it did on February 17, 2008? Garentina Kraja: Kosovo’s declaration of independence was not an ad hoc decision made by Kosovo leadership. It was the outcome of a long process that included a decade of repression by Serbia’s leadership, a war, and ten years of international administration. Moreover, independence was declared only after years of negotiations between Kosovo and Serbia failed to produce a solution that was acceptable to both sides. Kosovo’s parliament declared independence following the recommendation of UN Secretary General’s Special Envoy Marti Ahtisaari, who proposed Kosovo’s legal secession from Serbia to be the only viable solution. The declaration of independence was based on Ahtisaari’s blueprint, which, among other issues, offers broad constitutional guarantees to Kosovo’s Serb minority and placed Kosovo under international supervision. Though Kosovo is now largely run by locally elected leaders, the international presence is tasked to oversee the implementation of this proposal that led to independence-- it retains veto power to override any decision that breaches the spirit of Ahtisaari’s plan. While the UN did not approve Kosovo’s independence and its secession from Serbia was unilateral, it is important to rememJMZ\PI\\PMLMKTIZI\QWVQ\[MTN _I[KWWZLQVI\ML_Q\P=;WNÅKQIT[ QV?I[PQVO\WVIVL-]ZWXMIV=VQWVWNÅKQIT[QV*Z][[MT[1\_I[ \PM=;IVLUW[\WN \PM-=KW]V\ZQM[\PI\_MZMIUWVO\PMÅZ[\ ones to recognize Kosovo as an independent country just hours after its parliament declared independence.

Celebration Following Kosovo’s Declaration of Independence, Times Square 2008 (Grace Patuwo)

Of course, I think many in Kosovo and in the region would have preferred a broader international consensus and support for independence, but given the realities at the United Nations, especially Russia’s opposition to secession, it would have been futile to wait for those political attitudes to change any time soon. It’s also important to understand that the legal limbo in which Kosovo’s citizens lived for nearly two decades had made the situation untenable. The country and its people were stuck between a horZQJTMXI[\IVLIV]VSVW_VN]\]ZMUISQVOQ\LQNÅK]T\NWZ3W[W^W\W develop. The declaration of independence is in part a response to this political uncertainty.

YALE UNDERGRADUATE LAW REVIEW Œ>WT]UM1[[]MC E


Special Features YULR: What are your views on the International Court of Justiceâ&#x20AC;&#x2122;s advisory opinion that Kosovoâ&#x20AC;&#x2122;s declaration of independence does not violate international law? GK: I cannot give an expert comment on the International Court of Justiceâ&#x20AC;&#x2122;s advisory opinion. However, as a citizen of Kosovo, I felt relieved the day the Court found that the declaration of independence did not violate international law. Although this advisory opinion is not legally binding, it still carries much moral weight, and it is important for both people in Kosovo and Serbia because it recounts each phase that led to the declaration of independence. It showed that the quest for independence was a very long and complicated process and not something that happened suddenly. YULR",WaW]\PQVS\PMIL^Q[WZaPI[PIL[QOVQĂ&#x2026;KIV\QUpact on how Serbia views the situation? Do you think it has made other countries more willing to recognize the independence of Kosovo? GK: Since Serbia asked for ICJâ&#x20AC;&#x2122;s opinion on the matter, I thought that the Courtâ&#x20AC;&#x2122;s ruling would satisfy its demands. My real hope, and one that I have since failed to see happen, is for the ruling to provide that tipping point which would open the way to a more constructive approach of Serbia toward Kosovo. In my opinion

that has not happened yet, and there is no sign of shifting attitude any time soon. As to other countriesâ&#x20AC;&#x2122; willingness to recognize Kosovo, one prevailing hope in the aftermath of the ruling was that the ICJ decision would enhance Kosovoâ&#x20AC;&#x2122;s position, for there are still many countries for which the declaration of independence remains controversial. This hope, however, has yet to materialize because the ICJ ruling did not necessarily trigger more international recognition. Recognition remains a sensitive issue in Kosovo. It is unclear why the advisory opinion has not brought more recognition, but I think it has made Kosovoâ&#x20AC;&#x2122;s leadership think harder about how to reach out to countries that have yet to be persuaded that Kosovo is a viable state. YULR: One of the main concerns about the advisory opinion is that it could set a precedent that could apply to other separatist movements. Do you think this will PI^M [QOVQĂ&#x2026;KIV\ QUXTQKI\QWV[ NWZ W\PMZ UW^MUMV\[ QM South Ossetia and Abhazia in Russia, Taiwan etc? Do you think Kosovo is a special case (as a number of states have argued) and why? GK: The ICJ ruling is unlikely to have any impact upon separatist movements, as initially feared. On the contrary, one could argue that there is less hope now for separatists in Cyprus or Republika Srpska, to cite two examples from the Balkans. As the Court states, their declarations of independence were based on the unlawful use of force, which is a violation of the peremptory law, the jus cogens (ICJ advisoy decision, pp. 30). These declarations have already been condemned and deemed illegal by Security +W]VKQTZM[WT]\QWV[QV! IVL!! In the case of Cyprus - the ICJ spells out - the Security Council has clearly spoken of one state and the integrity of its borders. No such clarity existed on Kosovo. The Court noted that in the context of Kosovo, the Security Council had never taken such position. To be more precise, there is no UN resolution that mentions the shape or the nature of Kosovoâ&#x20AC;&#x2122;s political status before Resolution \PMTMOITLWK]UMV\M[\IJTQ[PQVO\PMKQ^QTIVL[MK]rity assets of Kosovo after the 1999 NATO intervention. :M[WT]\QWVVM^MZZMITTa[Ia[_PI\SQVLWN [\I\M3Wsovo should be, leaving the issue open.

The International Court of Justice (David Chan)

I would like to add here that the Court chose not to comment on the way Kosovo thinks of its independence, whether as an act of self-determination or a remedial secession. The question asked by Serbia and the Court rightly focused on the possible violation of international TI_I[M`XZM[[MLQV3W[W^W\PZW]OPZM[WT]\QWVIVL all its emanations. Yet, this is how Kosovoâ&#x20AC;&#x2122;s leadership has presented independence: a sui generis case. In this sense, Kosovoâ&#x20AC;&#x2122;s declaration of independence should be seen as I XZWOZM[[Q^M XZWKM[[ LMĂ&#x2026;VQVO MNNWZ\[ Ja 3W[W^WÂź[ )TJInians to accommodate their existence in the Kingdom WN A]OW[TI^QI\PMV<Q\WÂź[A]OW[TI^QIIVLĂ&#x2026;VITTa5QTW[M-


Kosovo: The Country’s Unique Path to Independence and Its Status in International Law vic’s Yugoslavia, at which point the rights achieved by the majority population were abolished by a regime whose merciless violent record peaked in Kosovo in 1999. The declaration of independence points to the failure of the “the sovereign” to protect and care for Q\[XWX]TI\QWVQVKT]LQVOUQTTQWVM\PVQK)TJIVQIV[I[_MTTI[\PM exhaustion of the peaceful attempts by the representatives of Kosovo Albanians to come to an agreed solution. YULR: In more practical terms, how and when do you think Kosovo will gain the full recognition of the international community? GK: Kosovo’s struggle to become a member of international institutions will have been successfully completed when it becomes a full member of the United Nations. This task has so far been JZWSMVLW_VQV\W\_W\QMZ[WN UMI[]ZMUMV\<PMÅZ[\WVMPI[\W do with Kosovo’s internal performance: its success or lack of it in setting up and maintaining functioning democratic institutions, a free market economy and upholding human rights. The second is bound to Serbia and it’s more complicated because it requires an IOZMMUMV\\PI\LMÅVM[ZMTI\QWV[JM\_MMV\PM\_WKW]V\ZQM[-IKP of the two tiers is intertwined like a double helix. Democratic institutions and their success are measured against the yardstick of the exercise of rights of the Serb minority. Despite countless efforts by Kosovo’s leadership to accommodate the Serb minority, Q\PI[XZW^MVLQNÅK]T\\WLW[WJMKI][MWN *MTOZILM¼[VWVKWWXMZItion that seeks to undermine Kosovo’s sovereignty. Every attempt by Kosovo’s government and different international organizations \WZMQV[\Q\]\MI]\PWZQ\aIVLMZWLM;MZJQI¼[QVÆ]MVKMW^MZ\PM;MZJ minority has been met with a violent reaction by the Serb minority. This is particularly visible in Kosovo’s Serb-dominated north, an area, where neither Kosovo’s government nor the EU mission that supervises its conduct have any control. In many ways, this process has more to do with Kosovo’s external image as a country seeking to conform to the expectations of its Western supporters, but the ways its success will be gauged remains unclear, especially since one end of its success is in Serbia’s hands and beyond Kosovo’s control. Garentina Kraja is a senior in Timothy Dwight College.

YALE UNDERGRADUATE LAW REVIEW Œ>WT]UM1[[]MCE


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Yale Undergraduate Law Review, Volume I, Issue II  

Yale Undergraduate Law Review, Volume I, Issue II

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