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Digital Trade Diversity: A Critical Primer on the Evolving Nature and Regulation of Intangible Import- Export Transactions
(Soochow Law Journal, 2024-03-29) Bhala, Raj; Stonebreaker, Brien
In the ever-evolving world trading system, digital trade is a complex, multi-faceted phenomenon that challenges traditional legal frameworks. This article explores cross-border regulation of digital import-export transactions, arguing a central thesis summed up in one word: “diversity.” The diverse nature of digital trade and its regulation is evident from a critical evaluation of the impact of digital trade on global economies, including market expansion and supply chain efficiency, and costs such as workforce adaptation and rich-poor divisions. There is no universally agreed upon definition of “digital trade.” This article identifies a range of possibilities, covering the methodology and subject matter of an import-export transaction. It also points out that the diversity in digital trade is apparent from the absence of a universally agreed-upon definition of the term “data,” leading to fragmented approaches to data protection and management. Likewise, digital trade agreements (DTAs) are hardly monolithic. The article proposes they may be plausibly categorized as “nonexclusive” and “exclusive.” It highlights notable non-exclusive DTAs, such as the United States-Mexico Agreement (USMCA) and the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP), which have impressive Chapters on digital trade. The article also assesses noteworthy exclusive DTAs: the U.S.-Japan Digital Trade Agreement (USJDTA), known for its “Data Free Flow with Trust” philosophy, and the innovative Digital Economy Partnership Agreement (DEPA) designed for adaptability and scalability. Worryingly, digital trade diversity is exacerbated by “national security” concerns. There are national security exceptions in DTAs, the invocation of which in a schismatic geopolitical climate can undermine efforts to forge a harmonious regulatory framework across borders. The article concludes with a call for renewed leadership by major powers – America, China, and India – toward some measure of unity amidst this diversity.
Decoupling Defined: Four Theories and Four Illustrations from the Sino-American Trade War
(University of Washington School of Law, 2024-10-28) Bhala, Raj
This article seeks to bring clarity to a much used, yet ill-defined, term “decoupling.” The article explores the theory and practice of “decoupling” in the context of the Sino-American Trade War, which, launched in March 2018, shows no sign of a ceasefire. As to theory, this article argues that conceptually, “decoupling” takes (at least) four forms. There is efficiency, jurisprudential, security, and values decoupling. As to practice, this article shows these four theoretical typologies of decoupling are obvious today. This theory and practice are illustrated (respectively) with respect to labor-intensive industries, commercial transactions in rule-of-man jurisdictions or with military-related firms, or which undermine freedom of conscience. Amidst the present Trade War, the article counsels for an expectation of more four-pronged based decoupling.
The Corporate Transparency Act Desk Book: Practical Guidance for Beneficial Owners and their Professional Advisors
(University of Kansas, 2024-10-21) Quick, William E. H.
The Corporate Transparency Act requires certain corporations, limited liability companies, limited partnerships, statutory trusts and other similar entities (including both privately held and non-profit business entities), designated as reporting companies, to report their direct and indirect natural person beneficial ownership information to the Financial Crimes Enforcement Network within the U.S. Department of Treasury. Certain categories of entity attributes are expressly exempted from the CTA’s reporting requirements, but the vast majority of businesses operating in the U.S. are not so exempted. FinCEN estimated over 37 million reporting companies would be required to report in the first compliance year alone. The information to be reported under the CTA is referred to as beneficial ownership information, and is reported into FinCEN’s beneficial ownership secure system through filing a beneficial ownership information report via an online portal. The collected information includes personal identifying information about specific individuals directly or indirectly associated with the reporting company. Collected information is maintained by FinCEN and made accessible to authorized users of FinCEN’s beneficial ownership information technology system, which include certain governmental agencies, domestic and foreign law enforcement and, in some instances, financial institutions, each upon strict terms of use. Importantly, the collected information is not available to the general public, is not available to the press through Freedom of Information Act requests, and may only be accessed and used for proper purposes by authorized governmental (including law enforcement) and financial institution recipients. Significant penalties, including steep fines and significant federal prison terms, exist for violators of the permitted access requirements. Fines also exist for direct and indirect violators of the CTA’s reporting obligations, along with federal prison terms for willful violation of the CTA. The CTA is intended to serve the public interest by combatting the use of “shell” companies in the commission of money laundering, financial fraud and other domestic and international illicit activity and corrupt practices. However, the reach of the CTA is much broader, and includes business insiders and affiliates, service providers, financial institutions, state and tribal government agencies and law enforcement, and others dealing with many U.S. entities and U.S. operated international business entities, including business entities in existence prior to and formed after the CTA’s enactment.
Protecting the Ogallala Aquifer in Kansas from Depletion: The Teaching Perspective
(Journal of Land, Resources, and Environmental Law, 2004) Peck, John
When I first started teaching water law, I visited water users in Western Kansas and learned of their problems in obtaining and maintaining groundwater rights from the Ogallala Aquifer. Then I began to hear criticism from people outside Western Kansas: "Don't grow corn and soybeans where only wheat should grow." "Shut down irrigators and beef packing plants." "Conserve groundwater for future generations." "Establish a Buffalo Commons." The questions of whether curtailing existing water rights to achieve safe yield would amount to a "taking," how to preserve the Ogallala Aquifer, and whether to preserve the Aquifer for future generations have been excellent issues for classroom discussion. Eastern Kansas has rains and rivers. Western Kansas has the Ogallala Aquifer. Western Kansas is sparsely populated. Agriculture dominates the economy. Large-scale irrigation, cattle feed yards, and beef processing plants are vital industries. An influx of immigrant workers has changed the racial, nationality, and ethnic mix of southwest Kansas cities. Originally, Kansas followed the riparian doctrine for streams and the absolute ownership doctrine for groundwater. With the 1945 Water Appropriation Act, the Kansas legislature changed to the appropriation doctrine for both streams and groundwater. It protected existing rights with "vested rights" for water already being used. In 1957, following Professor Shurtz's recommendations that the appropriative water rights needed legislative protections, the legislature amended the Act to state expressly that water rights are "real property right[s], appurtenant to ... the land on or in connection with which the water is used."
The Forced Labor Revolution in U.S. International Trade Law
(The International Lawyer: A Triannual Publication of the ABA Internation Law Section, 2024) Bhala, Raj
What should the relationship be between the promotion of labor rights and the importation of foreign-origin merchandise? Specifically, should America allow into its customs territory imports made with forced labor? The conventional answer, evidenced by U.S. international trade law since 1930, has been a reasonably tight ban on such products. But allegations of genocide orchestrated by the Chinese Communist Party (CCP) against Uyghur Muslims in Xinjiang underscored bipartisan concern that the Section 307 ban needed tightening. The legislative response-the Uyghur Forced Labor Prevention Act, enacted on December 23, 2021, and effective June 21, 2022-did that, and more, by creating a rebuttable presumption that any item manufactured in whole or in part in Xinjiang, or by a company connected thereto, the UFLPA revolutionized U.S. international trade law. Simply put, the UFLPA is a dramatic change evincing a newfound American commitment to root out labor rights degradations from cross-border supply chains.
Evolving Water Law and Management in the U.S.: Kansas
(20 University of Denver Water Law Review 15, 2016) Peck, John
Situated in the geographical center of the country, Kansas is a state in the tier of states from the Dakotas to Texas that mark the transition from the humid East to the arid West. Elevation rises from under seven hundred feet above sea level in eastern Kansas to over four thousand feet in the west. Rivers generally run from the dry west to the wetter east. Western Kansas is underlain by the High Plains Aquifer, which extends its reach to several other states. Roughly one-third the state’s population resides in the two main population centers--the Kansas City-Lawrence-Topeka corridor in northeast Kansas and the Wichita-Salina area in central to south-central Kansas. This article focuses on the last fifty years of Kansas water allocation management. It excludes water quality and interstate issues. To understand this period and to place it in context, however, one must view the preceding period from statehood in 1861 to 1965. After briefly describing this earlier period, this article examines the fifty years from 1965 to 2015, and then concludes with some observations about the future.
Don't Be Stupid or Mean: Be Aware of-Slander of Title in Kansas
(Kansas Bar Journal, 2024-05) Peck, John; Steadham, Christopher
This article is about the tort of slander of title in Kansas. A possible cause of action can arise in a variety of contexts and can cause problems for owners of property interests and their lawyers. The descriptors we use in our title, "stupid" and "mean:' are two of the three ways the West Virginia Supreme Court described some defendants assessed with punitive damages. The court upheld substantial punitive damages awarded by the trial court in that slander of title case. We describe the case in Section III.A. below. Real estate professionals file documents in the register of deeds office to give notice of ownership interests and of claims against the title. Persons and entities interested in ascertaining the status of title to particular land consult these records to draw conclusions and make business decisions. Most documents filed in the public records are valid and likely contain correct information. Most land titles, however, are not entirely clean and totally without blemish. Legitimate interests such as mortgages, liens, easements, court records, leases, and other interests may show that a particular title is encumbered. A prospective purchaser might require some or all of these legitimate encumbrances to be removed before the purchaser will close a sale. But occasionally a cloud appears that is false and illegitimate. Consider the following four fact situations: 1. A law student disgruntled with his grade in a class files a document in the register of deeds office falsely claiming an interest in the farm owned by the law professor of that class. 2. An unfriendly homeowner next to neighbors whose house is on the market puts up a sign in her own yard claiming falsely that any purchaser of his neighbors' house and lot would be buying a lawsuit because the neighbors' land title is clouded. 3. An employee of a bank that holds a mortgage on a piece of property falsely claims orally during a meeting with the owner and prospective buyer that the bank owns the property outright. 4. A member of a sovereign citizens group files a "commercial lien" against a home owned by a local judge. The first situation is hypothetical, the second happened in Malibu, California, and the third happened in Kansas. The fourth is an example of tactics used by various splinter groups to gum up title to land owned by public officials and others. All four situations suggest the possibility of a lawsuit for slander of title. Section II provides background about this tort. In Section III we describe a few Kansas cases that illustrate both successful and unsuccessful results. We briefly note in Section IV some related Kansas statutes. In Section V, we examine the first hypothetical situation posed above as well as another situation. Section VI is a brief conclusion.
International Trade Law: A Comprehensive E-Textbook, Volume 8 Growth, Development, and Poverty (6th edition)
(Wheat Law Library, University of Kansas, 2024-05-24) Bhala, Raj
Does participation in cross-border importation, exportation, and direct and portfolio investment enhance human well-being? In particular, does international trade stimulate economic growth and development, and does it alleviate poverty? These hotly debated controversies are the heart of Volume Eight. To engage in this debate, it is necessary to understand Development Economics. That is the subject of Part One. How are “growth,” “development,” and “poverty” defined and measured? Armed with clear answers, this Part describes the classic theoretical models of economic growth, development, and poverty reduction. They include Rostow’s Stages of Economic Growth, and the Fei-Ranis Labor Surplus Model. The potential role of trade in them is highlighted. Equally importantly, this Part also reviews the empirical record of the contribution of trade to growth, development, and poverty across the half-century following the end of the Second War and de-colonization. Thus, the records of countries that pursued export-oriented versus import-substitution policies are contrasted. Part Two spells out and critically analyzes the leading programs in International Trade Law designed to benefit developing and least developed countries: the Generalized System of Preferences (GSP), a GATT-WTO exception to the most-favored nation (MFN) obligation. This Part also highlights one among many national-level, targeted preference schemes, namely, the U.S. African Growth and Opportunity Act (AGOA). Unfortunately, GSP and AGOA have underrealized their full potential to help poor countries. This Part explains why they have not done so. Volume Eight, and thus the eight-Volume set, conclude with a review and evaluation of the trade laws and policies of India. India is the world’s most populous country, the world’s largest democracy, and the world’s most religiously pluralistic country. Its trade regime, characterized by import substitution and protectionism in the decades after the 15 August 1947 British Partition of the Indian Sub-Continent, pivoted in 1991 to openness. But, the pivot is partial: India’s trade liberalization is inchoate, and its free trade agreement (FTA) program is only modestly ambitious. What might the future hold for India and, therefore, the world? Overall, Volume Eight clearly manifests the interdisciplinary nature of International Trade Law through the pressing questions of inequality and injustice in the world trading system. Like the other seven Volumes of International Trade Law: A Comprehensive E-Textbook, this Volume is available Open Access, and thus freely, quickly downloadable.
International Trade Law: A Comprehensive E-Textbook, Volume 7 Free Trade Agreements, Labor, and Environment (6th edition)
(Wheat Law Library, University of Kansas, 2024-05-24) Bhala, Raj;
If the question is, “what areas of International Trade Law are blazing?,” then Volume Seven encompasses the answer: free trade agreements (FTAs), labor, and environment. With no end in sight to decades of paralysis at the World Trade Organization (WTO), the “action” on market access and social justice issues is at the regional level. So, Part One covers the theory and practice of FTAs and customs unions. FTAs and customs unions (CUs) are more than economic agreements; they also are instruments to advance political and national security interests of the Parties to them. Philosophies differ as to how ambitious they should be, from American-style exhaustiveness to Indian-style boundedness. Perspectives differ on what countries should be invited into an FTA – Taiwan? And, they differ on whether to remain in a deal – as the Brexit divorce debacle memorably shows. Part Two pays respect to the multilateral disciplines on FTAs and CUs. WTO Members are supposed to adhere to certain parameters when they negotiate, draft, and execute such deals. That they do not always do so is problematic, and helps explain the frenzied activity in this space. No FTA or CU can function without Rules of Origin (ROOs). They are the subject of Part Three. In contrast to ROOs discussed in Volume Three (Customs Law), which are nonpreferential, ROOs in the context of an FTA or CU (or a poor-country preference scheme) are preferential. How, and why, that is so, and what is at stake, are explored in Part Three. The North American Free Trade Agreement (NAFTA), both version 1.0 and 2.0 (the latter known as the United States Mexico Canada Agreement, or USMCA), furnishes an excellent case study of how ROOs function. NAFTA 1.0 and 2.0 also illustrate how ROOs can advance favored sectoral interests (e.g., autos and auto parts) and labor rights (e.g., wages and dispute settlement), and how they can be looser (encouraging third-country inputs) or tighter (i.e., protectionist). Part Four demonstrates that free trade, in a pure sense, never is purely free. “Free” Trade Agreements are really “Managed Trade Agreements.” Using Staging Categories (SCs), Duty-Free, Quota Free (DFQF) treatment rarely is accorded to 100 percent of merchandise traded among FTA Parties immediately upon Entry into Force (EIF). Likewise, Parties hold back from liberalization commitments certain sensitive sectors, and reserve the right to snapback protections using safeguards. Analogous limitations – sometimes even more protective ones – exist for provisions on services and foreign direct investment (FDI) flows. Parts Five and Six cover labor issues. The linkage between trade and labor rights always mattered, as the 1948 Havana (International Trade Organization, or ITO) Charter prove. Today this link is at the forefront of trade politics and social justice debates. Part Five examines several critical legal and policy questions: What are “internationally recognized workers’ rights”? What role does the ILO play in defining and advancing them? To what extent does an FTA, through (for example) labor arbitration proceedings, enforce those rights? This Part also lays out new rules – such as the U.S. Uyghur Forced Labor Protection Act (UFLPA) – to cleanse merchandise supply chains of forced labor. Because of these questions and rules (plus those concerning the environment in Part Seven and national security in Volume Three), it is not too much of an overstatement to say that International Trade Law is very much about supply chain management. Part Seven covers another vital linkage in world trade, that between trade and the environment. Neither GATT-WTO nor FTA provisions can, by themselves, solve the problem of climate change. But, they can play a role in adaptation and mitigation. This Part begins with in-depth coverage of GATT-WTO exceptions to promote conservation of exhaustible natural resources and support sanitary and phytosanitary (SPS) measures, showing how the restrictive Two Step Test developed through cases dating to the 1990s has limited the practical effect of those exceptions. Accordingly, WTO Members – led by the European Union (EU) – have proposed, and indeed implemented, their own trade-restrictions to deal with climate change. Overall, Volume Seven has an underlying implicit theme of “WTO be damned.” On market access, labor, and environmental matters, some WTO Members have ceased waiting for action at the multilateral level. They are pursuing their interests in these areas – otherwise, they are left behind by not only certain other Members, but also their own domestic constituencies. Like the other seven Volumes of International Trade Law: A Comprehensive E-Textbook, this Volume is available Open Access, and thus freely, quickly downloadable.
International Trade Law: A Comprehensive E-Textbook, Volume 6 Special Sectors (6th edition)
(Wheat Law Library, University of Kansas, 2024-05-24) Bhala, Raj
Every trading nation has “sensitive sectors.” They are the areas of economic endeavor a country desires to insulate from the competition of freely-traded exports. The sensitivities may be based on cultural legacies (think beef in Korea), political calculations (think dairy products in Canada), or economic consequences (think high-employment sectors in India). These sensitivities are the subject of Volume Six. Part One covers the quintessential sensitive sector: agriculture. Though farm and farm-related endeavors employ a small fraction of the labor force in developed countries, the percentages are higher in developing and least developed countries. Moreover, agriculture is the one sector that effects every person – everyone must eat. So, this Part steers through the three legs of agricultural trade liberalization per the world’s first multilateral deal on cross-border transactions in this sector, the World Trade Organization (WTO) Agreement on Agriculture: market access; domestic support; and export subsidies. Further, this Part deals with a closely related matter of concern from ancient to modern times – sanitary and phytosanitary (SPS) standards, which are the subject of the WTO SPS Agreement. Alas, many controversies remain in this sector, including reforms to the Green Box and (as India presses) public stockholding for food security, and improper invocations of SPS protections. Part Two deals with the dominant economic sector in developed countries: services. It is in services where most of the labor force is employed in them, and migrating from agriculture-based to services-based economies is the goal of developing and developing countries. This Part explains how services are categorized in Sectors, Sub-Sectors, and Sub-Sub-Sectors, and how they are traded across borders through four Modes of delivery. Then, the rules of such trade – horizontal (general) obligations, and specific commitments and exceptions – under the General Agreement on Trade in Services (GATS) are explained. Vitally, how to read a Services Schedule, and thus how to understand the multi-dimensional character of services trade liberalization negotiations, are spelled out, and the limited WTO jurisprudence is untangled. Part Three is about a highly contentious sector in which rich countries seek to maintain a lead, and poor countries hope to develop a comparative advantage: patents, trademarks, and copyrights – that is, IPRs. The WTO Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPs) is the focal point of this Part, both its textual provisions and WTO case law under it. So, too, are novel challenges, such as compulsory licensing and vaccine nationalism, some of which were highlighted by the COVID-19 pandemic. And, as in any area of International Trade Law, there are problems of enforcement, hence this Part reviews how, why, and who is responsible for policing intellectual property rights (IPRs). Part Four deals with the new frontier of sensitive sectors, namely, digital trade (including electronic commerce). What is digital trade? What is its relation to electronic (e-) commerce? Is it properly the subject of International Trade Law, or does it also implicate issues of antitrust (competition law), and cyber-security? What Digital Trade Agreements currently exist, and what do they say? Which countries incline toward free trade in digital services, and which champion barriers (e.g., data localization), and why? All such questions are in play in this Part. Overall, Volume Six conveys the vital point that unabashed, across-the-board, laissez-faire free trade policy is a quixotic goal in the mind of an ideological economist. In truth, countries understandably need to balance their inclination to free trade against adjustment costs. Like the other seven Volumes of International Trade Law: A Comprehensive E-Textbook, this Volume is available Open Access, and thus freely, quickly downloadable.
International Trade Law: A Comprehensive E-Textbook, Volume 5 Remedies (6th edition)
(Wheat Law Library, University of Kansas, 2024-05-24) Bhala, Raj
Every trading nation has “sensitive sectors.” They are the areas of economic endeavor a country desires to insulate from the competition of freely-traded exports. The sensitivities may be based on cultural legacies (think beef in Korea), political calculations (think dairy products in Canada), or economic consequences (think high-employment sectors in India). These sensitivities are the subject of Volume Six. Part One covers the quintessential sensitive sector: agriculture. Though farm and farmrelated endeavors employ a small fraction of the labor force in developed countries, the percentages are higher in developing and least developed countries. Moreover, agriculture is the one sector that effects every person – everyone must eat. So, this Part steers through the three legs of agricultural trade liberalization per the world’s first multilateral deal on cross-border transactions in this sector, the World Trade Organization (WTO) Agreement on Agriculture: market access; domestic support; and export subsidies. Further, this Part deals with a closely related matter of concern from ancient to modern times – sanitary and phytosanitary (SPS) standards, which are the subject of the WTO SPS Agreement. Alas, many controversies remain in this sector, including reforms to the Green Box and (as India presses) public stockholding for food security, and improper invocations of SPS protections. Part Two deals with the dominant economic sector in developed countries: services. It is in services where most of the labor force is employed in them, and migrating from agriculturebased to services-based economies is the goal of developing and developing countries. This Part explains how services are categorized in Sectors, Sub-Sectors, and Sub-Sub-Sectors, and how they are traded across borders through four Modes of delivery. Then, the rules of such trade – horizontal (general) obligations, and specific commitments and exceptions – under the General Agreement on Trade in Services (GATS) are explained. Vitally, how to read a Services Schedule, and thus how to understand the multi-dimensional character of services trade liberalization negotiations, are spelled out, and the limited WTO jurisprudence is untangled. Part Three is about a highly contentious sector in which rich countries seek to maintain a lead, and poor countries hope to develop a comparative advantage: patents, trademarks, and copyrights – that is, IPRs. The WTO Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPs) is the focal point of this Part, both its textual provisions and WTO case law under it. So, too, are novel challenges, such as compulsory licensing and vaccine nationalism, some of which were highlighted by the COVID-19 pandemic. And, as in any area of International Trade Law, there are problems of enforcement, hence this Part reviews how, why, and who is responsible for policing intellectual property rights (IPRs). Part Four deals with the new frontier of sensitive sectors, namely, digital trade (including electronic commerce). What is digital trade? What is its relation to electronic (e-) commerce? Is it properly the subject of International Trade Law, or does it also implicate issues of antitrust (competition law), and cyber-security? What Digital Trade Agreements currently exist, and what do they say? Which countries incline toward free trade in digital services, and which champion barriers (e.g., data localization), and why? All such questions are in play in this Part. Overall, Volume Six conveys the vital point that unabashed, across-the-board, laissez-faire free trade policy is a quixotic goal in the mind of an ideological economist. In truth, countries understandably need to balance their inclination to free trade against adjustment costs. Like the other seven Volumes of International Trade Law: A Comprehensive ETextbook, this Volume is available Open Access, and thus freely, quickly downloadable.
International Trade Law: A Comprehensive E-Textbook, Volume 4 National Security (6th edition)
(Wheat Law Library, University of Kansas, 2024-05-24) Bhala, Raj
The significance of the link between trade and national security cannot be overstated. While it is a link dating to ancient times (as Volume One observes), in the post-Cold War era, it is fair to say trade policy is national security policy, or a part thereof, and vice versa. Thus, Volume Four is about the theory and practice of this link. Part One covers border security in a post-9/11 world. After that terrorist attack, the function of the U.S. Customs Service – renamed Customs and Border Protection (CBP) – enlarged from clearance of merchandise (discussed in Volume Two) to protecting America’s borders. The job of CBP now includes ensuring only “good goods and good people” enter the U.S. customs territory. That is likewise the task of customs authorities around the globe. Here, again, the U.S. national-level measures have been studied in other countries, and at the World Customs Organization (WCO), as role models to one degree or another. Part Two is about how “national security” is defined in theory and practice. Both the multilateral level, i.e., Article XXI of the General Agreement on Tariffs and Trade (GATT) and Article V of the General Agreement on Trade in Services, and the U.S. level, i.e., the array of Presidential authorities to deal with “national security” challenges, are reviewed. So, too, is the controversy as to whether World Trade Organization (WTO) adjudicators do, or even should, have any subject matter jurisdiction over the invocation by WTO Members of national security as a reason to derogate from a GATT-WTO obligation. Parts Three and Four concern two of the most important manifestations of the link between trade and national security – Section 232 and export controls, respectively. Again, both theory and practice are discussed. Section 232 allows the President to adjust imports to avoid an impairment to national security. Steel and aluminum imports are among the key targets for this weapon. Export controls are relevant to nuclear, military, or dual-use (civilian and military) items. The U.S. reasons for controlling such exports, and how it does so, are evaluated. Parts Five, Six, and Seven treat a third key instance of the trade-national security nexus, namely, trade sanctions. Part Five is theoretical, asking whether trade sanctions are “moral.” Different criteria for evaluating what constitutes “moral” behavior are laid out. Parts Six and Seven are practical, with two major case studies, Iran and Russia, respectively. Like the U.N., and other WTO Members, the U.S. has maintained a dizzying array of sanctions against Iran ever since the 1979-1981 Hostage Crisis. These sanctions are explained chronologically. Associated with those sanctions is Iran’s alleged nuclear weapons program. So, a critical analysis of the terms of the Joint Comprehensive Plan Of Action (JCPOA, i.e., the July 2015 Iran Nuclear Deal) is offered. Further, since Russia’s February 2022 invasion of Ukraine, America and its Allies have slapped sanctions on Russia, and ratcheted them up. These punishments include innovative actions, such as price caps on oil and natural gas. Overall, Volume Four examines all aspects of the concept of “national security” and logic for linking it to measures such as import adjustment, export controls, and trade sanctions. Included in this treatment are moral arguments for and against those measures. The Volume thus embraces the detailed legal rules at issue, and from them infers grand questions. Like the other seven Volumes of International Trade Law: A Comprehensive E-Textbook, this Volume is available Open Access, and thus freely, quickly downloadable.
International Trade Law: A Comprehensive E-Textbook, Volume 3 Customs Law (6th edition)
(Wheat Law Library, University of Kansas, 2024-05-24) Bhala, Raj
Volume Three, Customs Law, is about a (maybe the) “bread-and-butter” specialty within International Trade Law, namely, the clearance of merchandise exported from one country into the customs territory of another country. Every article of merchandise shipped across an international boundary must satisfy the customs rules of the importing country. Though the GATT-WTO regime contains treaties on Customs Law, most of the key rules are at the national level. So, the focus of this Volume is on U.S. Customs Law. As the dominant player in world trade, and the one with the most sophisticated set of customs rules dating to the founding of the American Republic, that focus is the most influential example. Part One deals with the answer to an obvious question: how is it known whether a good is “foreign,” and thus being imported? The answer is a Rule of Origin. That answer belies the complexity of identifying and applying the correct ROO for a shipment of merchandise. This Part, however, expounds on the different conceptual types of ROOs, and how they are employed in practice. Part Two deals with the answer to a non-obvious question: what options exist for bringing merchandise into an importing country? Most merchandise is entered for consumption, but there are other possibilities. Warehouses and FTZs are among the leading alternatives, and afford importers and exporters alike transactional and strategic flexibility. Parts Three and Four deal with the heart of the customs clearance process – classification and valuation, respectively. Tariff liability owed by an importer of record depends on the proper classification of merchandise in the Harmonized Tariff Schedule, which yields an applied duty rate, multiplied by the value of the product, which thus yields a specific tariff figure. Both processes, classification and valuation, are zero-sum games: importers seek to minimize their tariff liability, while governmental customs authorities, like U.S. CBP, wish to maximize tariff revenue. The games are refereed, as it were, by rules on product classification, such as the GRI, and on methodologies for valuation. These rules and methodologies, along with the vast U.S. case law on them, and how to read a Tariff Schedule, are covered in this Part. Finally, Part Five summarizes special Customs Law programs under U.S. Customs law. One program, drawback, allows importers to be refunded certain tariffs on inputs they previously paid, when finished merchandise is exported. A second program, pre-shipment inspection, can help speed up the customs clearance process by taking care of necessary checks in the exporting country. PSI can be especially helpful to developing and least developed countries, ensuring their merchandise – including perishable products – are not held up at entry ports in developed countries because they fail the checks. Likewise, poor countries can benefit from trade facilitation and the possibilities afforded by the WTO Trade Facilitation Agreement. Overall, Volume Three provides highly practical material used in the everyday life of International Trade Lawyers around the world. This Volume further underscores the importance that customs clearance be as algorithmic a process as possible, so as to expedite trade by minimizing inefficiencies and/or opportunities for corruption. Like the other seven Volumes of International Trade Law: A Comprehensive E-Textbook, this Volume is available Open Access, and thus freely, quickly downloadable.
International Trade Law: A Comprehensive E-Textbook, Volume 2 Fundamental Multilateral Obligations (6th edition)
(Wheat Law Library, University of Kansas, 2024-05-24) Bhala, Raj
Volume Two, Fundamental Multilateral Obligations, provides in-depth coverage of the General Agreement on Tariffs and Trade (GATT) and World Trade Organization (WTO). International Trade Law springs from, and operates at, three levels: multilateral trade treaties, i.e., GATT-WTO rules; regional trade agreements, i.e., rules arising from free trade agreements (FTAs) and customs unions (CUs); and national measures, e.g., rules specific to one country, such as America or India. Volume Two is all about this first level. Subsequent Volumes deal with the other levels. But, across all eight Volumes, GATT-WTO rules are of special, if not pre-eminent, importance – at least if there is anything to the international rule of law. Part One lays out the architecture of multilateral trade treaties. Special emphasis is on the 1986-1994 Uruguay Round. It produced the largest and most complex of trade treaties in human history, and birthed the WTO. Also discussed here is how countries became contracting parties to GATT, and how they accede as Members to the WTO. Part Two provides studies the luster and blemishes on the “crown jewel” of the GATTWTO regime, namely, its adjudicatory system. How did this system evolve since 1947 into today’s sophisticated set of procedures for resolving trade disputes among WTO Members? What problems do WTO Panels and the Appellate Body face? Does stare decisis operate, in a de facto sense, in this system? Why did the Appellate Body – loosely akin to a Supreme Court of International Trade – collapse in December 2019, and what replaced it? Can it be said, under Positivist Legal Theory, that International Trade Law is truly “law,” unlike, perhaps, Public International Law? Part Three sets the foundation for the remaining two Parts, Three and Four. All GATTWTO disputes necessarily begin with a basic question: what is the relationship between or among (1) an imported product, and either (2) an allegedly aggrieved other imported product or (3) domestically-produced product? If (1) an imported product bears no “likeness” either to (2) another imported product or (3) a domestically-produced product, then that imported product cannot be said to cause harm to the other merchandise. Part Three elucidates the legal tests for “likeness,” which derive from considerable GATT-WTO jurisprudence. Part Four then identifies each of the five most important rules in the entire multilateral trading system – the “Five Pillars.” They are most-favored nation (MFN) treatment, national treatment (for both fiscal and non-fiscal measures), tariff bindings, quantitative restrictions (QRs), and transparency. To know these rules well is to know a lot about International Trade Law. They, or their analogs, are reincarnated countless times not only in WTO treaties that deal with, for example, IP and services, but also and in FTAs. Part Four untangles the text of each of these rules, and the leading GATT-WTO cases that apply them in a wide array of provocative circumstances. Finally, Part Five addresses the reality that every rule has one or more exceptions. There are “cracks” in each of the Pillar obligations. Some are across-the-board derogations, available in the event of a violation of any provision of GATT. Others are specific to a violation of a particular GATT Article. This Part also asks why there is no broad exception to justify a protectionist measure to advance human rights. Overall, Volume Two gives readers both the basic concepts, and advanced critiques, of how the international rule of law is manifest with respect to trade, namely, the GATT-WTO regime. Like the other seven Volumes of International Trade Law: A Comprehensive ETextbook, this Volume is available Open Access, and thus freely, quickly downloadable.
International Trade Law: A Comprehensive E-Textbook, Volume 1 Interdisciplinary Foundations (6th edition)
(Wheat Law Library, University of Kansas, 2024-05-24) Bhala, Raj
Volume One, Interdisciplinary Foundations, carefully explains the rich, diverse intellectual heritage of international trade. Part One sets the tone for this and the remaining Volumes, laying out 10 themes – including the importance of having fun through the study of the field. Part Two shows how and why cross-border importation and exportation, and foreign direct and portfolio investments, are more than merely economic phenomena. Morality is very much at stake. Dating to Ancient Greece and Rome, and through the great thinkers of the early and medieval Christian Church, trade transactions, and the behavior of traders, were the subject of philosophical and religious debate. Only in 18th and 19th centuries did the writings of classical economists – Adam Smith and David Ricardo – pivot attention to economic analyses of mercantilism and free trade. Parts Three and Four thus cover the economics of trade. Here, too, diversity is evident: both capitalist and communist trade theory is discussed in detail. Some of these economic topics link to the politics of trade, including trade deficits, the Stolper-Samuelson Theorem, and industrial policy. In Part Five, the sweep of trade history is chronicled. American trade history – not just tariff policy before, during, and after the Civil War, but also the reality of the Constitutional protection for slave trade – is examined. So, too, is the history of the modern multilateral trading system, which arises from the Great Depression and Atlantic Charter, and takes root with the GATT in 1947, and ultimately the WTO in 1995. All of the multilateral trade negotiation (MTN) rounds, including the failed Doha Round, are analyzed. Finally, Part Six reviews another interdisciplinary foundation of trade, namely, international relations (IR) theory. Here, Realism, Liberalism, and Constructivism are explained. These theories are a reminder of the promise, and limitation, of trade as means to build peace among peoples. Overall, Volume One welcomes readers, regardless of their prior background, by giving them the interdisciplinary tools they need to be well-educated and well-rounded in International Trade Law. Like the other seven Volumes of International Trade Law: A Comprehensive E-Textbook, this Volume is available Open Access, and thus freely, quickly downloadable.
Ethical, legal, and social issues in the Earth BioGenome Project
(Frontiers Media, 2022-01-18) Sherkow, Jacob S.; Barker, Katharine B.; Braverman, Irus; Cook-Deegan, Robert; Durbin, Richard; Easter, Carla L.; Goldstein, Melissa M.; Hudson, Maui; Kress, W. John; Lewin, Harris A.; Mathews, Debra J. H.; McCarthy, Catherine; McCartney, Ann M.; da Silva, Manuela; Torrance, Andrew W.; Greely, Henry T.
The Earth BioGenome Project (EBP) is an audacious endeavor to obtain whole-genome sequences of representatives from all eukaryotic species on Earth. In addition to the project’s technical and organizational challenges, it also faces complicated ethical, legal, and social issues. This paper, from members of the EBP’s Ethical, Legal, and Social Issues (ELSI) Committee, catalogs these ELSI concerns arising from EBP. These include legal issues, such as sample collection and permitting; the applicability of international treaties, such as the Convention on Biological Diversity and the Nagoya Protocol; intellectual property; sample accessioning; and biosecurity and ethical issues, such as sampling from the territories of Indigenous peoples and local communities, the protection of endangered species, and cross-border collections, among several others. We also comment on the intersection of digital sequence information and data rights. More broadly, this list of ethical, legal, and social issues for large-scale genomic sequencing projects may be useful in the consideration of ethical frameworks for future projects. While we do not—and cannot—provide simple, overarching solutions for all the issues raised here, we conclude our perspective by beginning to chart a path forward for EBP’s work.
Labor Unions, Cartelization, and Arbitration: Replacing At-Will Employment With Arbitration of Employee Grievances
(Penn State Arbitration Law Review, 2020-12) Ware, Stephen
This Article shows that while a significant amount of commercial arbitration occurred at each stage of U.S. history, labor arbitration was extremely rare until the 20th century, and remained uncommon until the New Deal of the 1930s. In the late 19th and early 20th centuries—amidst vast inequalities of wealth and violent labor disputes—employers generally succeeded in maintaining at-will employment by refusing to recognize labor unions, let alone agree to unions’ demands to replace at-will employment with arbitration of employee grievances. Pre-1930s employer successes in defeating unions were aided by a range of legal doctrines from the law of master-servant and tort, to the Sherman Antitrust Act and enforcement of workers’ promises not to join unions, to Lochner era constitutional law. And all these doctrines were undergirded by a classical liberal emphasis on freedom of contract with respect to the sale of labor. By contrast, the Great Depression combined with the early 20th century ideological shift from classical liberalism to progressivism to produce massive legal changes in the 1930s. The key legal change was legally-encouraged labor cartelization, the economic policy of the landmark Wagner Act of 1935, now known as the National Labor Relations Act (NLRA). The NLRA’s legally-encouraged labor cartelization produced labor grievance arbitration by empowering unions to extract from employers the promises—like firing workers only “for cause”—that create the claims (grievances) in labor arbitration, as well as employers’ promises to resolve those claims in arbitration rather than litigation. And labor grievance arbitration’s roots in legally-encouraged labor cartelization largely explain many of labor arbitration’s important differences from other arbitration, as discussed in my forthcoming article, Labor Grievance Arbitration’s Differences.
Paternalism or Gender-Neutrality?
(Connecticut Law Review, 2020-08) Ware, Stephen
The strong and widely-accepted reasons for using gender-neutral language presumptively apply to the gendered word paternalism and its gender-neutral counterpart, parentalism. So this article’s thesis is that legal scholars should begin with a presumption for using the gender-neutral word parentalism, while using paternalism only when emphasizing the important relevance of gender or otherwise trying to convey a gendered meaning. Accordingly, many legal scholars define paternalism in an expressly gendered way — such as “the institutionalization of male dominance,” or an “ideology [that] teaches men to minimize women's agency” — or fittingly use paternalism to describe an attitude especially characteristic of men or directed primarily toward women. All these many uses of the gendered word paternalism are supported by the writers’ apparent intent to emphasize the important relevance of gender to the writers’ points. On the other hand, and despite the spread of gender-neutral language throughout our society and legal profession, many legal scholars continue to use the gendered word paternalism without indicating any important relevance of gender or otherwise manifesting intent to convey a gendered meaning. These many writers use paternalism rather than parentalism to describe laws or policies aiming to protect people (of all genders) by restricting their choices. For example, these writers cite “paternalism” as a standard justification for restrictions on contractual choice or other private ordering, including the unconscionability doctrine, usury laws, the minimum wage, and countless regulations limiting the range of enforceable promises by consumers, borrowers, employees, investors, and others. In each of these contexts, better to use the gender-neutral word parentalism, unless the writer emphasizes the relevance of gender or otherwise manifests an intent to convey a gendered meaning. For example, a writer could justify using the gendered word paternalism by arguing that all our laws are gendered male so gendered language should be used to discuss any law, including using paternalism to describe laws aiming to protect people of all genders by restricting their choices. Or a writer could justify using the gendered word paternalism by arguing (after citing sufficient empirical data) that protect-by-restricting-choice parenting is gendered male, so analogous protect-by-restricting-choice laws and policies are also gendered male. Absent one of those two plausible arguments justifying use of the gendered word paternalism, laws or policies aiming to protect people of all genders by restricting their choices are better described as examples of parentalism. In short, a presumption for using the gender-neutral word parentalism to describe laws or policies aiming to protect people of all genders by restricting their choices is well-grounded in the strong and widely-accepted reasons for ordinarily using gender-neutral language. And examining legal scholarship’s many uses of paternalism and parentalism illuminates our understandings of gender in both law and parenting.
Groundwater Management: The Movement Toward Local, Communityh-Based, Voluntary Programs
(Kansas Jounral of Law and Public Policy, 2019) Peck, John C.; Illgner, Rick; Wiley, Jakob; Crittenden Owen, Constance
Worldwide, groundwater aquifers are under stress. Conflicts abound.The U.S. Geological Survey (USGS) reports this to be true in the United States as well. For decades, American state governments facing the problem have attempted through legislation4 and administrative action5 to reduce the rate of depletion of groundwater aquifers. Some areas in Kansas have been closed down completely to the issuance of new groundwater pumping permits. The judiciary has been active as well. A court or administrative agency may force reduced pumping by some pumpers in a defined aquifer in an attempt to slow down groundwater mining. Or, a court may order a single well owner to reduce or curtail pumping altogether because of impairment of another well. This article treats various methods in which this problem is being addressed in the United States and the ways they have evolved over the last few decades. Water professionals commonly call the general approach to the problem "groundwater management." Some dictionary definitions of "manage" include the following: "handle or address with a degree of skill" and "treat with care,"' "control .. .something,"" "succeed in accomplishing,' and "control the use or exploitation of."' Any person's answer to the question of whether any of these various methods are working "may depend ... in part on the person's background, biases, perspective, and perhaps even present employment.'
Water Allocation Law and the Oil and Gas Industry in Kansas: An Update to the 1981 Neufeld Article
(Journal of the Kansas Bar Association, 2012) Neufeld, Eva; Peck, John C.; Dees, Adam
The Spring 1981 issue of the Journal of the Kansas Bar Association contained Eva Neufeld's article "The Kansas Water Appropriation Statutes and Their Effect Upon the Oil and Gas Industry in Kansas" (the 1981 Article).' We are updating the 1981 Article because in the intervening 30 years great changes have occurred in Kansas law and in oil and gas recovery methods, particularly in coalbed methane (CBM)production and fracing. The 1981 Article focused on the Kansas Water Appropriation Act (KWAA)2 administered by the chief engineer of the Division of Water Resources (DWR)of the Kansas Department of Agriculture (KDA). The 1981 Article cited other non-KWAA statutes, including sections dealing with the Kansas Corporation Commission (KCC), civil procedure, and taxation. Over the last 30 years, the Kansas legislature has made numerous additions and amendments to the KWAA and other relevant statutes, and we analyze the effect of these changes on the oil and gas industry. The 1981 Article began with a brief history of the KWAA and the KWAAs initial impact on oil and gas production. The 1981 Article then covered (1) water use in the initial drilling operation, (2) water as a by-product of oil and gas production, and (3) water use in secondary or enhanced oil and gas recovery. The final three sections dealt with the question of attachment of water rights to land in Oklahoma, Colorado, and Kansas; discussed policy issues and made suggestions; and advised on obtaining a water appropriation permit. This article updates and supplements the 1981 Article, but does not replace it; so, the articles should be read together. We use the same 1981 Article format and subtitles, 3 but in some cases add sub-subsections, and we do not discuss Oklahoma and Colorado law. Like the 1981 Article, this article focuses primarily, but not exclusively, on water allocation. Several developments in legislation, administrative regulations, and n methods of oil and gas recovery necessitate mentioning several water quality concerns as they relate to allocation, but we do not discuss water quality concerns in detail. This article summarizes changes in the KWAA and the other related statutes and in DWR since 1981, and it ties them to recent advancements in oil and gas recovery methods. We deal with attachment of water rights, but only in Kansas and not in Colorado or Oklahoma. The section describing policy issues and making suggestions is reviewed as to current applicability. The final section on obtaining a water appropriation permit is updated and expanded.

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