After Heller: The New American Debate about Guns (Cato Unbound Book 72008)

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Jonathan Sun. Baratunde Thurston. Feb 28, Secure the Vote Assessing the integrity, safety, and security of the vote -- the most important element of a truly democratic government. Feb 19, Feb 18, Are the platforms finally growing up? Feb 16, Feb 15, Feb 12, A citizen-sovereign way to pay for news—or for any creative work Doc Searls on getting the supply and demand sides of creative markets together to better support journalism. Doc Searls.

Feb 11, Change how Facebook uses our data Scandals underscore the need to regulate use of customers' information. Adam Holland. On WhatsApp, Rumours, and Lynchings In the last decade, India has seen multiple rounds of communal violence in which rumour and information technology played a role. Feb 9, Feb 6, State-aligned trolling in Iran and the double-edged affordances of Instagram Investigating the size and perpetrators of online violence, harassment, and abuse against critical members of the Iranian diaspora, including journalists, civil society activists,….

Simin Kargar. Jan 31, Valentin Weber.


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Dave Rand. Jan 28, On Twitter, limited number of characters spreading fake info A tiny fraction of Twitter users spread the vast majority of fake news in , with conservatives and older people sharing misinformation more, a new study finds. Jan 24, Jan 19, How Hashtag Culture Influences International Conversations In her new book "Memes to Movements," An Xiao Mina explores how people from a historically overlooked nation such as Uganda are able to drive the conversation on issues in…. Jan 17, Jan 16, Americanize my name This app uses US Census Data and a linguistic algorithm to "Americanize" submitted names, and provoke thought about how names and identities are considered in society.

Urs Gasser. Jan 14, Jan 9, Jan 8, John Bowers. Dec 27, Harvard Portrait: Ruth Okediji Ruth Okediji, Smith professor of law, traces her enthusiasm for intellectual-property law to a childhood love of literature and storytelling. Ruth L. Dec 21, Kishonna Gray. Dec 20, The War Torn Web A once-unified online world has broken into new warring states.

Dec 19, Dec 18, Yes, Big Platforms Could Change Their Business Models The few companies that control our digital public sphere—Facebook, Google, and Twitter—are all driven by the same fundamental business model, and it has only grown more pernicious…. Dec 17, Yvonne MacPherson.

Think was bad? Wait until you see Unless journalists decide to take a stand and rethink the current status quo, will be darker and gloomier. Dec 15, Don't Worry About Deepfakes. Tim Hwang. Dec 13, Stories from the front lines of the fight against hate speech Brittan Heller joins the Atlantic to explore the debate about free speech — on campuses, on tech platforms, and in our political life.

Brittan Heller. Alexis Madrigal. Alexandria Ocasio-Cortez Has Mastered the Politics of Digital Intimacy Should there be a public archive or public record of a politician's social media as soon as they become a public official? Nov 30, Jessica Fjeld. Nov 29, Nov 22, Nov 19, Nov 16, Information Attacks against Democracies The same fake news techniques that benefit autocracies by making everyone unsure about political alternatives undermine democracies by making people question the common political….

Nov 15, Nov 13, Selling Outrage Yochai Benkler argues that the mainstream media is our best hope for tempering the radical right. Nov 12, Should we Kik anonymous messaging to the curb? How the anonymous messaging platform Kik should approach safety for its young audience. Mariel Garcia Montes. The Leaders of the Big Technology Think Themselves Smarter than Others Jonathan Zittrain says the chances that the Internet will be a engine for positivity are lower than they were ten years ago.

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Nov 6, Blame Fox, not Facebook, for fake news "The highly asymmetric pattern of media ecosystems we observe on the right and the left, despite the fact that Facebook and Twitter usage is roughly similar on both sides,…. Nov 5, The Rise of Fake News On the surge in misinformation since the elections. Nov 2, Nov 1, Is the Web Neutral? Three Views on the Structure of the Internet.

Oct 29, Common-Knowledge Attacks on Democracy Scaling up computer security arguments to the level of the state, so that the entire polity is treated as an information system with associated attack surfaces and threat models,…. The Online Targeting of Journalists with Anti-Semitic Intimidation How can platforms help to combat the targeting and harassment of journalists? Oct 25, An Xiao Mina on the Internet cold war An American internet rife with hyperpartisanship and stratified along race, gender, and class lines, versus a Chinese internet tranquil and free of abuse.

Oct 24, Oct 23, No Longer Running Naked through the Digital World We are now digital as well as physical beings, and this is new to a human. Oct 12, Arzu Geybulla. Oct 8, Russian Meddling Is a Symptom, Not the Disease Foreign meddling is to our politics what a fever is to tuberculosis: a mere symptom of a deeper problem.

Transit Ridership Is Declining

Oct 3, Oct 1, Sep 28, Mason Kortz. Network Propaganda A discussion on how to think about technology, politics, and media in the post-truth moment. Sep 26, Latoya Peterson. AI Initiative Incubates The Markup, a New Investigative Journalism Venture Focused on Revealing the Societal Impact of Technology The Markup, a nonprofit journalism outlet for providing independent analysis of how technology is changing the news ecosystem, officially launched last week. Sep 23, Sep 19, Aug 28, How social media took us from Tahrir Square to Donald Trump To understand how digital technologies went from instruments for spreading democracy to weapons for attacking it, you have to look beyond the technologies themselves.

The Cambridge Analytica scandal is a drop of water trickling down the visible top of an iceberg Focus on decentralizing power. The present and future of a centralized internet Understanding the risks future technology and intermediaries might pose to the internet as a tool for social change. Mar 13, Dec 6, Jan 11, AI: Media and Information Quality As autonomous systems play an increasing role in selecting the content we see online, questions arise about AI's influence on human judgment, opinions, and perceptions. Media Cloud Media Cloud is an open source, open data platform that allows researchers to answer complex quantitative and qualitative questions about the content of online media.

Ep. 49: The Right to Keep and Bear Arms (with David Kopel)

Youth and Media Youth and Media YaM encompasses an array of research, advocacy, and development initiatives around youth age and digital technology. Blogging Common Blogging Common seeks to capture and present the spirit and wisdom of the blogosphere by surveying bloggers around the globe. E-Publishing Models With the generous support of the Revson Foundation, the E-Publishing Models Project is focused on exploring current issues associated with digital publishing business models and… More.

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Global Network Initiative In partnership with the Center for Democracy and Technology and Business for Social Responsibility, in addition to leading human rights groups, academic institutions, socially… More. Internet and Democracy The Internet and Democracy Project is an initiative that will examine how the Internet influences democratic norms and modes, including its impact on civil society, citizen media,… More.

Media Re:public Media Re:public is a research project that examines the current and potential impact of participatory news media. Kendra Albert Fellow. Virgilio Almeida Faculty Associate.

Independent Thinking in a Red-Blue Town

Amar Ashar Staff. Genevieve Barrons Affiliate. Celina Bottino Beatriz Affiliate. Susan Benesch Faculty Associate. Yochai Benkler Director. Fernando Bermejo Faculty Associate. Ellery Roberts Biddle Affiliate. Elettra Bietti Affiliate. Griffin Boyce Staff. Catherine Bracy Affiliate. Scott Bradner Affiliate. Amy Brand Affiliate. Joanne Cheung Affiliate. John Collins Affiliate. Sasha Costanza-Chock Faculty Associate. Renee DiResta Affiliate. Judith Donath Fellows Advisory Board. Brenda Dvoskin Affiliate. Jeannette Estruth Affiliate.

Bruce Etling Staff. Rob Faris Staff. William Fisher Director. Camille Francois Affiliate. Juan Ortiz Freuler Affiliate. Mayo Fuster Morell Faculty Associate. Devin Gaffney Affiliate. Urs Gasser Director. Ashley E. Gorham Affiliate. Christoph Graber Faculty Associate. Kishonna Gray Faculty Associate. Mary Gray Fellow. Andrew Gruen Affiliate. Nikolas Guggenberger Affiliate. Natalie Gyenes Affiliate. Elizabeth Hansen Affiliate.

Eszter Hargittai Fellows Advisory Board. Samer Hassan Faculty Associate. Moritz Hennemann Affiliate. Jerome Hergueux Faculty Associate. Felipe Heusser Affiliate. Mako Hill Faculty Associate. Nate Hill Affiliate. Velislava Hillman Fellow. Tim Hwang Affiliate. Jonathan Jackson Fellow. Sarah J. Jackson Faculty Associate. Dean Jansen Affiliate. Nani Jansen Reventlow Affiliate. Malavika Jayaram Faculty Associate.

Amy Johnson Affiliate. John Kelly Affiliate. Penn then refused to remove the hat in respect to the court. Although acquitted on the charge on which he was tried, Penn was held in contempt and imprisoned for refusing to doff his hat. Quakers to wear their hats. Only in a courtroom context did Quakers need to ask for an exemption from legal rules about hats. Only in a militia context did Quakers need to ask for an exemption from legal rules about guns.

The fact that particular words were used to discuss the exemptions does not prove that the particular words pertain only to courtrooms or militias. Kozuskanich chides us because we supposedly did not do any "actual research.

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Howell ed. Hansard We shudder to think how a historian working for Hat Control, Inc. He also claims that "[t]he article is, more or less, cut and pasted from Cramer and Kopel's blogs. This is true, in a hypertechnical sense, if "more or less" means "less. See Keystone, supra note 2. Cramer wrote two blog posts about the Kozuskanich articles, and the two posts combined totaled over 4, words. Kopel wrote a word post summarizing Cramer's analysis.

Our Keystone article does incorporate many of the points that Cramer initially raised, but those points are largely rewritten. See Posting on Mar. A few years after the war, there was an intense debate about whether the federal government should have power over the state militias.

Boyd ed. The statute required Highlanders to turn in their arms, "restrain[ed] the use of the highland dress," and provided for punishment for those "having or bearing any arms or warlike weapons. Another statute provided [t]hat from and after the time of affixing any such Summons as aforesaid, no Person or Persons residing within the Bounds therein mentioned, shall be sued or prosecuted for his or their having or having had, bearing or having borne Arms at any time before the several Days to be prefixed or limited by Summons as aforesaid, for the respective Persons and Districts to deliver up their Arms.

For a similar statute, see , 11 Geo. Another statute declared: W[hereas] the custom that has two [sic] long prevailed amongst the Highlanders of Scotland, of having arms in their custody, and using and bearing them in travelling abroad in the fields, and at publick meetings, has greatly obstructed the civilizing of the people within the counties herein after named; has prevented their applying themselves to husbandry, manufactories, trade, and other virtuous and profitable employments. A different statute made it unlawful for anyone in Wales to bring or bear, or cause to be brought or borne to the same sessions or court, or to any place within the distance of two miles from the same sessions or court, nor to any town, church, fair, market or other congregation.

For a larger collection of civilian uses of "bear arms," see Clayton E. Parker citation omitted "A Justice of the Peace may. To accept Kozuskanich's theory that "bear arms" in the Pennsylvania Constitution of is militia-only, one must believe that the phrase narrowed its meaning from practicing medicine or law, could not inherit lands by devise, and could not "bear Arms, [or] keep Weapons, or Ammunition, without Allowance of the Justices, in Open Court. Whether or not the laws described in this footnote were regularly enforced in Pennsylvania or Virginia is questionable.

But the point of this article is that the legal texts show "bear arms" and "bearing weapons" in a nonmilitia context. This law, however, is expressly recognised in the constitution of Pennsylvania. Selden, "to keep arms for the preservation of the kingdom, and of their own persons.

Footnotes & Sources

Adams described measures adopted by new magistrates in Bologna, Italy, writing that "[i]n order to purge the city of its many popular disorders, they were obliged to forbid a great number of persons, under grievous penalties, to enter the palace: nor was it permitted them to go about the city, nor to bear arms. Further, to believe Kozuskanich, one must believe that the drafters of the Pennsylvania Constitution of thrice used the phrase "[t]hat the people have a right" when they meant to refer to all the people, but strangely used the very same phrase when they meant to say that only militiamen had rights.

The Pennsylvania Constitution of As we detailed in our initial article, James Wilson described the Pennsylvania Constitution of as encompassing a right to arms for personal self-defense. In their view, only the right to use a gun was justified under natural 70 See Keystone, supra note 2, at discussing PA. Lawson ed. While many nineteenth and twentieth century state constitutions explicitly affirmed the natural right of self-defense, Pennsylvania's eighteenth century constitution did not.

The Pennsylvania Constitution of guaranteed Pennsylvanians the right to arms for the "defence of themselves and the State"82 or, in other words, for personal defense and for collective defense. Governor Shulze was reasonable in arguing that the existence of a constitutional provision that was intended, in part, to make a militia possible created an obligation on the part of the legislature to organize the militia. The Governor was slightly misquoting the Pennsylvania Constitution, whose rights to arms provision refers to "the state, " not "the states.

Aldridge, supra note It was nothing less than man's right to self-defence, that power which could not be impaired by any power of government. II emphasis added. Credentialism Kozuskanich asserts that we are unqualified to criticize his law review articles because we are "not historians," and he claims that "[b]ecause [we] are not historians, [we] are baffled by change. We discussed nineteenth century Missouri and Kentucky cases that interpreted a phrase in their state constitutions that was identical to the phrase in the Pennsylvania Constitution.

We just suggested that the meaning of the phrase "for the defense of themselves and the state" did not appear to have changed. Shoultz, 25 Mo. Commonwealth, 12 Ky. Cramer, like Kozuskanich, teaches history at the college level. In any case, one does not need a Ph. Thucydides did not have a Ph. Cramer ed. This book is published by Pearson Custom Publishing, a press that allows professors to create their own textbooks. Schlesinger Jr. In contemporary times, Lawrence Friedman seems to have performed rather creditably as a legal historian, despite having only a J.

Bury ed. Press Friedman is the most-cited contemporary legal historian. Bellesiles asserted that, "as a nonhistorian, Mr. Cramer may not appreciate that historians do not just chronicle the past, but attempt to analyze events and ideas while providing contexts for documents. Stephen Halbrook In our article, we criticized Kozuskanich for mangling a quote from John Adams and for using the mangled quote as purported proof that Stephen Halbrook, who also quoted Adams, had See Clayton E.

Indeed, a close inspection of Bellesiles's sources reveals that they not only fail to support his argument, but prove precisely the reverse. The case against China is weakened by hyperbole and exaggeration. Finally, this paper considers gaps in existing rules and calls for an expansion into several new areas. It will doubtless be insisted by those busy imposing unilateral tariffs that bringing WTO legal claims will require too much time and too much trouble and that, even if the United States prevails, a remedy is at best several years away.

While there is some truth here, the current trade war will also require time and trouble and impose considerable economic costs on the United States as China retaliates, and then the United States ups its sanctions, and China responds again, and so on. What other untold and untoward consequences will there be from an abandonment by the United States of reliance on multilateral WTO remedies and thus of the international rule of law?

Would not U. Ideally, in cooperation with other major trading countries, the United States should take action within the WTO to ensure that China complies with its WTO obligations, and in this way push China to fulfill its promise of a transition to a market economy. Competition in the world economy is not a zero-sum game. The economic success of other countries does not lead to our economic failure.

The United States has been through this before, with the industrialization of Japan and other countries in the decades following World War II. Not only have we lived to tell the tale, but we are actually better off as a result. As other countries have risen, Americans have prospered alongside them. Without a doubt, China poses challenges different from those confronted earlier. Yet, despite these unique challenges, with the right combination of U. There is also this: It is far better for America that China should rise than that it not rise.

The economic failure of China would reveal to both countries and to all the world the fact—apparently little understood by the current president of the United States—that the Chinese economy and the American economy are linked together and are in many ways interdependent. And China has every right to rise. It is not forever fated to be a low-wage assembly line for the rest of the world. Like every other country, it has the right to climb the ladder of comparative advantage in pursuit of more value-added growth in an expanding global economy.

Furthermore, the United States benefits if the Chinese people prosper. The Chinese people and the American people alike will prosper most if both China and America are part of an open and rules-based global economy. Just as we Americans are better off with the rise of Japanese car makers, we are better off with additional competition from Chinese companies in numerous sectors. If China begins to compete in high-tech goods, that will be disruptive to certain Americans, just as it was when foreign companies began competing with us in textiles and clothing, furniture, and other low-skill manufacturing sectors.

But no matter how much some people may lament the decline of particular industries, few would suggest the American economy was better off in the past or would be better off without the innovation-inspiring benefit of that foreign competition. We could have an economy where Americans were sheltered from competition, but why would we want to? The lower-quality, more expensive products for consumers and the less innovative and thus less competitive sheltered industries that would be the result would not be worth the tradeoff.

Japan, China, and others can now buy a lot more American goods and services than they could in the past. That is of great benefit to American workers and businesses. A crucial point to recall is that China is industrializing at a time when others have already paved the way. Countries develop at uneven rates, the reasons for which are complex. For those that develop later, it is natural to look at what others have done before.

It does not make sense for China to reinvent the wheel, or the automobile. To some extent, China can and should copy what others have done. As an example, it recently began developing a wine industry, with input from experts from Europe. From the standpoint of the consumer, the additional competition is of great benefit. What is needed is to find the right balance between the spread of knowledge and the protection of intellectual property rights.

Intellectual property protection is, in a strict sense, an exception to free trade in that it limits free trade in ideas. However, this exception is thought to be justified by the need to provide incentives for the innovations that are often the products of new ideas. At the same time, some behavior related to economic catch-up can be highly problematic. For example, where governments or corporations steal trade secrets from foreign competitors—as has been alleged with China—or where governments engage in classic forms of protectionism by imposing tariffs and by granting subsidies in violation of agreed-on global rules, such behavior is not acceptable.

They should be able to hire people away from their competitors, even in foreign nations. They should even be able to buy their foreign competitors, a routine practice for which Chinese companies have been criticized. These are normal ways companies compete, and just as it is acceptable when American companies do these things, it should be acceptable when Chinese companies do the same. International trade rules should push development toward this sort of productive competition and should discourage harmful practices. In essence, the rules should allow Chinese companies to look to foreign innovations as inspiration but force them to stay within mutually agreed-on legal boundaries of governmental and business behavior.

That is precisely what existing trade rules do. With regard to products, WTO rules prohibit discriminatory taxes and regulations, as well as product regulations that are overly trade-restrictive, food safety regulations that are not based on science, and certain kinds of subsidies. There are also detailed provisions on intellectual property protection and enforcement. Part of the problem right now may be the limited number of enforcement actions taken against China. There have been some WTO complaints, but a wide range of Chinese practices that are supposedly of concern have not been challenged at the WTO.

The lesson China might be drawing is that if its practices are not challenged it is because the rest of the world tacitly accepts them. Hence there is a compelling need to challenge Chinese actions when they are unfair to foreign products and foreign competitors in the Chinese marketplace and beyond. The focus of this debate right now is China, but it will not end there.

Development in other countries is in progress or is coming soon—Vietnam, India, and many African countries, to name just a few. As with China, it is good for Americans if these countries grow wealthier, but we are right to insist that they grow in ways that are consistent with agreed-on international rules and with fundamental fairness. The trade rules that do exist can be useful, but they are not self-enforcing.

They must be invoked by governments. For the most part, this should not cause concern. We are all better off with more competition, and if China can become competitive in advanced technology sectors and lead the way on innovation, we all benefit. The rhetoric China uses is interesting, but the more important issue is its actual trade practices.

If Chinese companies compete with hard work and ingenuity, we should celebrate their success. But if China discriminates against foreign companies, or offers subsidies to its own companies or favors them in other ways, other governments should challenge those practices at the WTO. And if there are questionable practices not covered by the rules, other governments should coordinate an effort to get China to agree to new rules.

Yes, China has every right to rise, but every other member of the WTO has the right to insist that China must rise within the bounds of the global trade rules to which it has agreed. And where rules do not yet exist, we must find ways to negotiate and agree on them. The message we send China should be clear: we want you to continue to rise, but you must follow the same rules as other WTO Members, and you must work with us and with all other WTO Members to establish the additional rules that we need.

In fact, as this section of the paper demonstrates, China has a relatively strong record of compliance in the complaints that have been brought against it so far. China joined the WTO in The first complaint against it was brought in , with governments perhaps letting China gain some experience within the system before challenging it in dispute settlement. During that time, China was second only to the United States in the number of complaints it faced. Of the 27 matters litigated against China, 5 are still pending, 12 were litigated all the way through, and 10 were resolved through some kind of settlement, or not pursued after the measure was modified.

These cases addressed a wide range of issues: export restrictions, subsidies, intellectual property protection, discriminatory taxes, trading rights, services, and trade remedies. This was done either through an autonomous action by China, a settlement agreement, or in response to a panel or appellate ruling. In other cases, the complainants have disputed whether China has complied but have not brought an Article For example, the United States has not complied with the WTO ruling in the cotton subsidies complaint brought by Brazil, and the European Union EU still does not allow hormone-treated beef to be sold there even after losing a complaint brought by Canada and the United States.

The lesson here is that bringing WTO complaints against China works. It does not work perfectly in all cases, but that is no different from the situation in other countries. On the numerous occasions when the WTO has ruled against China, the Chinese government has willingly complied with the judgment and usually altered its laws or regulations to comply with WTO rules.

One reason why some question the suitability of WTO dispute settlement for resolving trade disputes with China is the lack of transparency in Chinese governance. A recurring refrain from the United States is the difficulty of discerning what the Chinese government is doing, either directly or indirectly. All too often it is difficult to tell, and all too often the Chinese government makes it more difficult with the opacity of its administrative regime.

Hence, one reason for the current reluctance of the Trump administration to pursue WTO remedies instead of simply imposing punitive tariffs is the sheer labor that often goes into proving that there is indeed a Chinese measure that can be challenged in the WTO. Yet, WTO rules make this task easier than some think, for two reasons. First, the rules set out a broad scope for the measures that can be challenged. Second, WTO rules contain numerous reporting requirements, under which the Chinese government must disclose its policies.

If it does so, the United States will have the information it needs to bring the complaints. If it does not, China will be in violation of these reporting requirements. In addition, the USTR has been gathering evidence of questionable Chinese trade practices for years, and the Section report presents a substantial amount of it. There may be a few issues where more evidence would be useful, but there is no shortage of detail on how the Chinese government has behaved. The task now is to take that evidence and turn it into WTO complaints.

Four promising areas of WTO complaints against China are general intellectual property protection and enforcement; trade secrets protection; forced technology transfer; and subsidies. This section provides a brief overview of each, with additional details on possible legal claims included in Appendix 2. Quite rightly, President Trump and his administration are, in their unfolding trade strategy, targeting Chinese transgressions against U. Intellectual property is a major engine of the American economy. According to the most recent numbers from the U.

Department of Commerce, intellectual property accounts for GDP; U. IP-intensive industries provide Unquestionably, pervasive intellectual property violations are a threat to millions of U. International Trade Administration has estimated that U. These U. An improvement in intellectual property protection and enforcement in China to levels comparable to those in the United States would likely translate into , new jobs in the United States. After 17 years in the WTO, China still falls far short of fulfilling its WTO obligations to protect copyrights, trademarks, patents, and other intellectual property rights.

Millions of Chinese live on the illegal gains of widespread counterfeiting of U. Potential remedies in the WTO exist and should not be ignored, and these remedies can be enforced through the pressure of WTO economic sanctions. A more specific obligation related to intellectual property is that American companies have, in effect, been forced to turn over their technology to Chinese partners—in some cases by revealing their trade secrets—in exchange for being allowed to do business in China and have access to the booming Chinese market.

Beyond intellectual property, there have been long-standing though somewhat vague allegations from U. As they describe it, transferring technology to Chinese companies is often a condition for the ability to make an investment there. Specific details of these arrangements are difficult to uncover. The companies involved may be reluctant to complain because they fear having their investment permission revoked by the Chinese government.

These subsidies are offered through a variety of programs, including the Made in China initiative and its specific implementing measures. WTO Members have brought several complaints against Chinese subsidies already, including an ongoing case related to agriculture subsidies see Appendix 1 , and there are additional complaints still to be brought.

While there are many justified complaints about China, it is important to examine each allegation objectively. There is a tendency these days to demonize China for everything it does, even when its practices are similar to those of other countries. Certainly there are some Chinese trade practices that merit criticism, but the case against China is weakened when unsupported claims are included.

Specific violations included setting unfairly high patent royalties, charging for expired patents, tying Standard Essential Patents SEPs to non-SEPs, forcing cross-licensing without considering the value, and adding other unfair terms in licensing agreements. When considering this question, keep in mind that Qualcomm has also been the subject of antitrust investigations in other countries for similar practices. In some instances, Chinese government or private-sector agents hack into U.

Theft and purchasing are, in fact, very different. Theft is an unacceptable practice that governments should make every effort to curtail. Company purchases by willing buyers and sellers, by contrast, are generally positive events, with both sides benefiting. There may be situations where a sale to a foreign company raises national security concerns, but there is nothing inherently wrong with the practice. Also, less advanced economies trying to learn from their more advanced counterparts is not exactly new and was advocated by Alexander Hamilton for the United States.

The lesson here is that we should not jump to conclusions about the propriety of government behavior simply because China is the one doing it. Objectivity is crucial here, and baseless claims can undermine legitimate efforts to bring reform to China. Instead of a China trade policy consisting mostly of confrontation, the United States should rely more on negotiation.

Unquestionably, the existing WTO rules are not adequate in all respects to deal with the unique challenges presented by China to the rules-based trading system. The remedy for the inadequacy of rules, however, is not abandoning those rules, but the adoption of more and better rules. Rather, it should cause us to redouble our efforts to reinvigorate the rules-based trading system by negotiating new rules to discipline protectionist actions and encourage China to adopt the market-based approaches that alone can secure long-term economic success for the Chinese people.

Ideally, these negotiations should be multilateral and should include China. As things stand now, China seems to see little benefit to any such negotiations: imposing unilateral and illegal tariffs on its products will not encourage it to sit down at the global negotiating table. Instead, China will retaliate with tit-for-tat tariffs and other trade restrictions of its own. But engaging China in WTO dispute settlement could—as has happened in other instances with other countries in the past—help inspire it to negotiate rather than litigate.

This, of course, would require a U. If China chooses not to participate in multilateral negotiations, then it should be given an incentive to do so by negotiations that proceed without China. These negotiations should be conducted within the legal framework of the WTO, in part so that China will have an automatic right to join in new rulemaking if it wishes to do so and if it agrees to abide by the new rules that are made.

The idea of the TPP was in part to set up a common standard of enabling rules for free markets over and above those already in the WTO treaty and—through the proven success of such a standard—give the Chinese government reason to join. Unfortunately, one of the first acts of the Trump administration was to pull out of the TPP, which has since been concluded successfully without the United States—but also without the combined economic presence the TPP would have had in the Pacific had President Trump not withdrawn. But there can be no negotiations if there is not first a willingness to negotiate.

And, for all his talk of trade deals, President Trump has shown little interest in the give-and-take of actual international trade negotiations. But this approach will not work for long. It will not work with all countries. And take-it-or-leave-it most certainly will not work with China, which has at least as much leverage over the fate of the American economy as the United States has over that of the Chinese economy. In truth, the fate of the two economies is in many ways one and the same, for the two are interdependent—a powerful reason for both the United States and China to choose to negotiate more and better rules on which they and all other WTO Members can agree.

The Trump administration may be skeptical about the value of filing WTO complaints against China, preferring the immediacy and contentiousness of unilateral tariffs. But if they are looking for effective approaches to addressing Chinese protectionism and other trade practices, WTO disputes are the better avenue. China has responded to U. By contrast, China has responded to previous WTO complaints with market opening. The WTO dispute process is not perfect, but it is a tried-and-true approach to this problem. Its biggest flaw is that it is underutilized. The Trump administration should work with U.

Source : Office of the U. Do respect intellectual property rights. Do enforce them. In particular, and despite widespread intellectual property violations in many other parts of the world in addition to China, no WTO Member has yet to challenge another Member with a systemic failure to enforce intellectual property rights. Article Members shall ensure that enforcement procedures as specified in this Part are available under their law so as to permit effective action against any act of infringement of intellectual property rights covered by this Agreement, including expeditious remedies to prevent infringements and remedies which constitute a deterrent to further infringements.

These procedures shall be applied in such a manner as to avoid the creation of barriers to legitimate trade and to provide for safeguards against their abuse. Is this obligation fulfilled by having sound laws on the books, as is generally the case with China? Or must those laws also be enforced effectively in practice, which is often not the case with China? Precisely how demanding is this obligation in requiring real enforcement of intellectual property rights? The Appellate Body has already been more than suggestive of the answer to this question.

That law must have real force in the real world of commerce. In the past, the United States has challenged successfully certain parts of the overall Chinese legal system for intellectual property protection in WTO dispute settlement. Instead of resorting to the illegality of unilateral tariffs and other arbitrary sanctions outside the legal framework of the WTO, the Trump administration should initiate a comprehensive legal challenge in the WTO, not merely to bits and pieces of particular Chinese IP enforcement, but rather to the entirety of the Chinese IP enforcement system as a whole.

Such a systemic challenge would put the WTO dispute settlement system to a test, to be sure. It would necessitate an outpouring of voluminous legal pleadings. Yet it could also provide the basis for fashioning a legal remedy that would in the end be acceptable to both countries and could therefore help reduce a significant obstacle to mutually beneficial U. China has denied the allegations by the United States of systemic Chinese violations of U. Yet widespread infringements continue and, in some of the innovative industrial sectors targeted by China strategically, seem to be increasing.

As it grows economically, China is growing as a force in world trade and thus in the WTO. China values its membership in the WTO, in part because China is aware of the considerable benefits it derives from membership. Article 39 is a major innovation in intellectual property protection under international law. There is no WTO jurisprudence whatsoever on Article This is not because Article 39 does not provide protection. Information is protected under Article 39 if it is secret, has commercial value, and has been protected against disclosure.

Under Article This, too, is language for the purpose of protecting contemporary trade secrets. It could be argued—and some developing countries did indeed argue during the Uruguay Round—that the protections afforded by Article 10bis are sufficient to protect trade secrets. However, many countries at the time had neither sufficient laws nor efficient administrative procedures in place to protect trade secrets. Nor were trade secrets recognized as intellectual property in other international law.

Those who would rather apply the broad illegal brush of unilateral tariffs instead of the sharp legal stiletto of a precise claim in WTO dispute settlement will protest that Article 39 has never been tested in a WTO dispute. This is true. Yet similar protests were heard 10 and 20 years ago against bringing legal claims in WTO dispute settlement under the Agreement on Technical Barriers to Trade and the Agreement on the Application of Sanitary and Phytosanitary Measures, which have both since been proven to be reliable tools for upholding and enforcing WTO obligations.

Not having been tested is not the same as having been tried and found wanting.

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It will certainly be said as well that proving a legal claim of illegal infringement of undisclosed information under Article 39 in WTO dispute settlement will not be easily accomplished. This also is true. As the complainant, the United States will have the burden of proving this and all its legal claims against China in a WTO dispute. Moreover, the United States will have to prove each particular instance of the illegal infringement of specific trade secrets.

All of this will necessarily involve the accumulation and submission of a veritable mountain of evidence—not easy in any case and certainly not easy in a case against a WTO Member with such an opaque and elusive economic and administrative system. Without question, China presents a formidable climb in the fact gathering for winning a WTO case. But the United States has climbed this mountain successfully before in a series of complicated WTO complaints it has brought against China and won.

Why does the Trump administration seem to have so little confidence that the world-class legal advocates at the USTR can climb it again? There have been long-standing, though somewhat vague, allegations from U. Specific details on these arrangements are difficult to uncover. In considering a possible WTO legal complaint, the specific role of the government here is crucial. Which Chinese government agencies or entities were involved, and how exactly did they pressure the foreign company to agree to transfer technology? These kinds of details will be crucial for a successful complaint.

The Chinese actions seem to violate the spirit of WTO rules, but do they violate the letter of the law as well? There are at least two good legal avenues for a WTO complaint. Without prejudice to the relevant provisions of this Protocol, China shall ensure that … any other means of approval for … investment by national and sub-national authorities, is not conditioned on: whether competing domestic suppliers of such products exist; or performance requirements of any kind, such as local content, offsets, the transfer of technology, export performance or the conduct of research and development in China.

This undertaking is further elaborated in Paragraph of the Working Party Report, which was incorporated into the Protocol:. The allocation, permission or rights for … investment would not be conditional upon performance requirements set by national or sub-national authorities, or subject to secondary conditions covering, for example, the conduct of research, the provision of offsets or other forms of industrial compensation including specified types or volumes of business opportunities, the use of local inputs or the transfer of technology.

Permission to invest. Consistent with its obligations under the WTO Agreement and the Draft Protocol, the freedom of contract of enterprises would be respected by China. Pursuant to these provisions, then, national and subnational Chinese government entities may not condition approval for investments on technology transfer. If a complainant can prove that this is happening, the complaint is likely to succeed. The complainant, however, has the burden of proof in WTO dispute settlement. Thus, the task of a complainant is to present sufficient facts to a WTO panel to document the actions of Chinese authorities in conditioning investment approval on technology transfer.

Beyond these specific WTO-plus commitments, there is also a general provision that could apply. Recently, both the United States and the EU filed requests for consultations with regard to certain Chinese measures on intellectual property protection. For its part, the United States did not challenge any measures directly related to forced technology transfer. Rather, it focused on licensing contracts related to intellectual property and how they discriminate against foreign patent holders and fail to provide adequate protection in accordance with the TRIPS Agreement.

In terms of the legal obligations, there are two main categories of subsidies in the SCM Agreement: prohibited and actionable. These rules are very strict. If a subsidy meets the terms of either of these, it violates the rules without any need to show an effect on the foreign competitor, and there is a shorter time frame for the offending government to come into compliance when it is found to be providing these subsidies.

Thus, for a program such as Made in China , to the extent that any of the subsidies are contingent upon export performance or the use of domestic content, they are in violation of WTO obligations. Importantly, a de facto connection between the subsidy and export or domestic content will be sufficient. To take an example, there have been reports that China is using subsidies to give an advantage to domestic makers of batteries that are being used in electric vehicles. For those unfamiliar with WTO rules, this situation may seem too complex to confront.

However, the SCM Agreement rules are designed to deal with just this kind of subtle, disguised protectionism. Domestic content subsidies are prohibited even where the contingency is not specified in law. Whether a challenge succeeds will depend on the specific facts of the case. In the electric vehicles example described above, the complainant could look for, inter alia, evidence that the electric vehicle companies that have received subsidies only use batteries on the government lists or that they switched to using the batteries on the lists after the lists were published.

Under Article 5 of the SCM Agreement, adverse effects may arise through the use of a subsidy when that subsidy results in:. Both of these provisions can provide the basis for claims against subsidies, but they can be challenging to prove, requiring specific evidence of how a particular market has been affected by subsidies. Meeting the burden of proving such claims is especially challenging with respect to China, but past experience shows it can be done.

In addition, subparagraph b sets out a potentially broad, but mostly unexplored, type of actionable subsidy claim. These claims have a higher burden of proof, which makes them difficult to win, and they also have a weaker remedy, which makes winning them less valuable. There is little existing precedent for such claims, but the language is broad enough to make it worth exploring creative complaints under it. As an example, China recently introduced tax exemptions and tax reductions for Chinese semiconductor producers, to last for a period of 10 years.

For the first two to five years, the taxes will be eliminated completely. One panel offered detailed explanations, and the Appellate Body discussed the issues briefly, which can be summarized as follows. The text of Article XXIII:1 b establishes three elements that a complaining party must demonstrate in order to make out a claim under Article XXIII:1 b : 1 application of a measure; 2 a benefit accruing under the relevant agreement; and 3 nullification or impairment of the benefit as the result of the application of the measure. In the case of the Chinese tax exemptions and reductions, the application of the measure is clear and the benefits accrue on the basis of the tariff concessions made by China as part of its accession and through further commitments made under the recent Information Technology Agreement ITA expansion with regard to semiconductor products.

There is a strong argument that this is the case, due to the fact that the competitive relationship between Chinese chipmakers and U. Importantly, in order to prove an Article 5 b adverse effects claim, there is no need to show lost sales. The commitments they exchange in such negotiations are commitments on conditions of competition for trade, not on volumes of trade. The subsidy i. Since the tax exemptions and reductions were announced on a date subsequent to the tariff concession, the United States is entitled to rely on a presumption that it did not anticipate the introduction of the subsidy and its consequent upsetting of the expected competitive relationship between U.

The Panel considered that the main value of a tariff concession is that it provides an assurance of better market access through improved price competition. Contracting parties negotiate tariff concessions primarily to obtain that advantage. They must therefore be assumed to base their tariff negotiations on the expectation that the price effect of the tariff concessions will not be systematically offset.

If no right of redress were given to them in such a case they would be reluctant to make tariff concessions and the General Agreement would no longer be useful as a legal framework for incorporating the results of trade negotiations. This standard was reiterated by a WTO panel in the U. First, the amount of subsidy provided is of great importance. Here the amount of subsidy is the amount of government revenue forgone, which is a complete rebate from a corporate income tax of 25 percent, for two to five years, covering a wide swath of semiconductor manufacturers, plus a 50 percent rebate from income tax through to the 10th year.

More than 80 percent of U. Any competitive edge that U. Secondly, the systematic nature of the Chinese measures can be seen through the broader context of the measure. Thirdly, the effect of the tax exemptions on U. According to public reports, it places conditions on access to its market to drive localization and technology transfer. Summing up, while China promised to reduce semiconductor tariffs as part of its accession and under the ITA, and has therefore made commitments under Article II benefiting its trading partners, including the United States, it has nullified or impaired those benefits through the use of specific subsidies, resulting in adverse effects under SCM Agreement Article 5 b.

Jacob M. The reality is that the WTO rules were not formulated with a state-led economy in mind, and while the extra commitments that China made in its Protocol of Accession disciplined certain policies and practices existing in , the Chinese government has since replaced them with more sophisticated—and still very troubling—policies and practices. Department of Commerce, Intellectual Property and the U. These are the most recent numbers available, from These numbers have likely increased with the continued U. FTC v.

Qualcomm Inc. Dennis C. Douglas C. Lippoldt and Mark F.



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