Tuesday, November 6, 2012

International Criminal Maritime Law


International criminal law is a very sexy sounding legal practice.  Most people imagine prosecuting war criminals or overthrown dictators, but a lot of international criminal issues arise at sea.  No, it’s not piracy either.  Many of the most complex international criminal issues come up in the prosecution of those who violate shipping laws.


It all started, like most international initiatives, with the United Nations.  A specialized agency of the United Nations’, known as the Inter-Governmental Maritime Consultative Organization (later renamed the International Maritime Organization [IMO]), primary purpose is to develop and maintain a comprehensive regulatory framework for shipping.  Its mission today includes safety, environmental concerns, legal matters, technical co-operation, maritime security and the efficiency of shipping.  The IMO has worked to pass international conventions such as Safety Of Life At Sea (SOLAS)[1], International Ship and Port Facility Safety Code (ISPS) and the Convention on the Prevention of Maritime Pollution (MARPOL 73/78).[2] 

The IMO itself have no enforcement or enactment authority and instead relies on individual signatories to the conventions to enact the conventions through domestic law and enforce the law with domestic law enforcement authority.  As with similar uniform conventions (See the Uniform Commercial Code), various signatories have adopted different interpretations and sometimes even different enacting language.  For the most part, this system works well and few problems arise, but confusion can arise at the fringes of the law.  As with the other similar uniform conventions, domestic courts look to the comments and intentions[3]of the IMO but even then, the answer is not always clear.

For a prime example we can look to a case recently prosecuted in the United States District Court for the District of Columbia.  In August of 2012, the fishing company Sanford, LTD, a New Zealand company that operated the F/V San Nikunau around the U.S. territory of American Samoa, and the F/V San Nikunau’s Chief Engineer, James Pogue, were found guilty of MARPOL violations[4].  A number of issues arose in the pre-trial stages of the case when the defendants challenged the United States’ authority to prosecute a foreign flag vessel for violations that occurred on the high seas and when the defendants contended that the United States’ interpretations of MARPOL differed from their home nation of New Zealand’s interpretations of MARPOL.

Judge Beryl A. Howell determined that given the purpose of MARPOL and the IMO, to create international standards for shipping requirements, that the United States, and presumably, every other MARPOL signatory could enforce MARPOL on the high seas[5].  Judge Howell also determined that the defendants’ contentions that New Zealand and the United States’ interpretations differed, was overblown, and that there was no significant difference on the issue in particular.  Judge Howell did not address what would happen if there actually was a conflict between the two country’s MARPOL interpretations.  The Judge’s ruling did not prevent the defendants from putting on a good faith defense contenting that they reasonably believed there was in fact a difference of law.  Between the United States and the defendants’ three expert witnesses were called to testify on a difference or lack thereof.

The issues which arose in this case have caused the United States Coast Guard, Maritime New Zealand and the IMO to work on solutions to resolve these perceived disparities.  Though all governmental organizations agree that no disparity exists it is likely that within the next few years we will see a new international action to address the procedure for handling disparities.


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Sunday, November 4, 2012

Are Political Contributions Statutes a Violation of the First Amendment?




The upcoming presidential elections have brought about many controversies. A major recurring issue is that of political contributions.  What are the political contribution laws in various states? How do they apply to individuals?  To corporations?  One state may have various provisions that differ from another.  For example, Mr. Tom DeLay explains the stricter Texas laws prevent political contributions from private corporations to state campaigns.  Although the statute did not mention what forms of contributions are barred, the statute has been interpreted to bar almost all campaign donations, including checks.

However, the issue at hand this time involves Montana law.  According to Montana state law, a “corporation may not make . . . an expenditure in connection with a candidate or political committee that supports or opposes a candidate or political party.”[1]In the recent Supreme Court case of American Tradition Partnership, Inc., the petitioners raised the question of whether the Montana State Law violates the First Amendment.[2] This issue is significant because what constitutes “speech” under the First Amendment is the sub-question.  If political contributions are considered “speech,” political contributions should be allotted.  However, if political contributions are not considered “speech,” the petitioners would have violated Montana law for political contributions.

When the issue was brought to the Montana Supreme Court, the court rejected the petitioners’ claim that the Montana statute violated the First Amendment of the United States Constitution.[3]According to Montana, expenditures corporations make in connection with a candidate or committee were not considered forms of speech or expression to be protected under the First Amendment.


However, in the case of Citizens United, the Supreme Court struck down a similar law and held that “political speech does not lose its First Amendment protection simply because its source is a corporation.” [4]Therefore, the real question the Supreme Court had to deal with was whether the ruling of Citizens United applied to Montana.


The Supreme Court granted the petitioners’ petition for certiorari and reversed the Supreme Court of Montana’s judgment. The Supreme Court held that Citizens United applies to Montana state law and that Montana’s arguments had already been rejected in Citizens United or failed to meaningfully distinguish this case. Therefore, the Supreme Court overruled Montana by holding that political contributions are considered speech or expression, and therefore entitled to First Amendment protections.

However, not all Supreme Court justices agreed with this ruling. Justices Breyer, Ginsburg, Sotomayor, and Kagan joined in a dissenting opinion arguing that Justice Stevens’ opinion in Citizens United stated, “technically independent expenditures can be corrupting in much the same way as direct contributions.”[5]From Citizens United, Justice Stevens also held that “a substantial body of evidence” suggested that “many corporate expenditures . . . had become essentially interchangeable with direct contributions in their capacity to generate quid pro quo arrangements.”[6]The dissenting opinion stressed the importance of Citizens United that “independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption”.[7] In addition, the dissenting opinion argued that the Supreme Court’s legal conclusion should not bar the Montana Supreme Court’s finding led to corruption or the appearance of corruption in Montana.  In considering Montana’s state history, the Montana Supreme court did conclude that Montana had a compelling state interest in limiting corporation expenditures.[8]Therefore, in upholding Citizens United, the Supreme Court casts doubt on the Montana court’s supposition that independent expenditures are not corrupt or appear to do so.[9]


In overruling Montana’s statute, the federal government has seemed to usurp the state’s ability to make law.  The First Amendment was upheld over Montana’s state law, which prevented corporations to make expenditures in connection with a candidate or political committees that support or opposes other candidates or committees. Montana’s underlying compelling state interest was to prevent corruption or the appearance of corruption, which was highly probable in the event of corporation expenditures.  However, the Supreme Court valued the First Amendment’s freedom of speech and expression over Montana’s state interest.  The Supreme Court equated political expenditures to political speech.

 I believe that the equation of political expenditures to political speech is a little too far extended.  Political expenditures should be considered in a complete different realm from speech or expression.  Although political expenditures may demonstrate a form of political expression, political expenditures have the potential for abuse and corruption, even if unintended.  As the dissenting opinion stated before, corporation expenditures have become interchangeable with direct contributions due to the ability to generate quid pro quo arrangements.  In fact, other states have legislation to prevent this sort of corruption, namely Texas. The Supreme Court has not overruled Texas’ statutes on political expenditures and prevention of companies from donating to state elections.  However, Texas’ statutes were enforced due to rampant corruption due to the ambiguity and lax enforcement that had previously caused scandals for years.[10]


Texas could bode an unfortunate forecast for Montana.  Without a campaign regulation statute, Montana is an open playground for corruption as Texas used to be with lax and ambiguous campaign contribution statutes.  Upholding the First Amendment for freedom of political expenditures opens a Pandora’s Box for a potential of corruption that could affect other states, and even the entire country.  In overruling Montana, the Supreme Court is stepping off line by extending what defines speech too far, to the realm of political contributions.  Contributions are an entirely different animal, economic in nature that brings with them a harmful potential of abuse.

The Supreme Court should reconsider its decision in Citizens United or at least in the case of American Tradition Partnership, Inc.,  However, the court has a per curium disposition and is highly unlikely to reconsider its decision.  Even so, the Supreme Court should deny the petition for certiorari or overrule Citizens United in future case law to prevent the potential for corruption.

Amelia Wong
Blogger, Criminal Law Brief

[1] Mont. Code Ann. §13-35-227(1) (2011).
[2] American Tradition Partnership, Inc. v. Bullock, 567 U.S. (2012).
[3] 2011 MT 328, 363 Mont. 220, 271 P. 3d 1.
[4] Citizens United v. Federal Election Commission, 558 U.S. 310 (2010).
[5] Id.
[6] Id. at 64-65.
[7] Id.
[8] 2011 MT 328, ¶¶ 36–37, 363 Mont. 220, 235-236, 271 P. 3d 1, 36-37.
[9] http://www.supremecourt.gov/opinions/11pdf/11-1179h9j3.pdf
[10] http://texaspolitics.laits.utexas.edu/6_7_2.html



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Friday, November 2, 2012

Criminal Enforcement of Intellectual Property Law


In a second presidential debate on October 16th, 2012, Romney pledged to declare China as a currency manipulator on his first day in office and also accused China of producing counterfeit American products and stealing American intellectual property.[1]  The counterfeiting of intellectual property in China is now the most serious counterfeiting problem in the history of the world. 

The losses from counterfeit goods are enormous.  The International Anti-Counterfeiting Coalition estimated that counterfeiting is a $600 billion industry worldwide and accounts for 5% to 7% of global trade.[2]  In the last two decades, counterfeiting has increased by more than 10,000%.[3]  In the United States alone, counterfeiting costs businesses $200 billion to $250 billion annually.[4]  This continued growth of counterfeiting rates has led the federal as well as state and local governments to implement criminal sanctions for violations of intellectual property laws.


The criminalization of the intellectual property infringement has met much difficulty and opposition.  Many legal scholars and policy makers have largely relied on property law to justify the criminalization of intellectual property infringement.  Certainly, one may argue that infringement of intellectual property is like criminal property offenses.  When assuming that intellectual property is like tangible property, the intellectual property infringement can deprive an intellectual property owner of some economic value of a good as with the property crime such as theft.

Nevertheless, there are many problems with “propertizing” intellectual property due to substantial differences between intellectual property and tangible property.  Unlike tangible property, intellectual property is intangible, non-exclusive, and non-rivalry.  The value of intellectual property cannot be completely depleted, whereas the value of tangible property can be completely deprived when it is stolen.  More than one person can use intellectual property without degrading its use.  Thus, it becomes difficult to assess the harm caused by infringement and identify the victims of the crimes.


Some legal scholars have suggested that the failure of the civil remedies as a method to deter intellectual property law violations is due the fact that public fail to recognize that the intellectual property infringement is morally wrong.[5]  They further added that criminal sanctions should not be imposed until the civil remedies are exhausted.  Others object to criminal enforcement arguing that overbroad intellectual property protections tend to limit the expansion of the public domain and the right of free speech.[6]  However, the ineffective deterrence provided by civil remedies and increase in value of intellectual properties to the United States economy have supported the imposition of tougher criminal sanctions.

One legal scholar points out that the Anti-Counterfeiting Trade Agreement (ACTA) is modeled after the United States’ copyright criminal provisions.[7]  Thus, one can view that the ACTA is the United States’ effort to criminalize the intellectual property infringement internationally in light of the continued proliferation of counterfeiting and piracy.  The ACTA was negotiated by the Office of the U.S. Trade Representative (USTR) between over thirty countries over the course of five years.  Prior to the ACTA, the Trade-Related Aspects of Intellectual Property Rights (TRIPS agreement) provided international standards for the enforcement of intellectual property rights. The TRIPS agreement contains only one article about criminal procedures which was criticized to be ambiguous and overbroad.  Scholars contended that Article 61, the only criminal enforcement provision in TRIPS agreement, provided vague minimum standard which was “crafted as broad legal standards, rather than as narrow rule” and made “difficult for right holders to effectively enforce their rights.”[8]  Further, it was worded to give member states discretions to follow its own traditions to implement enforcements.[9] According to some commentators, the ACTA was negotiated by developed countries that were frustrated with these ineffective aspects of the TRIPS agreement.[10]

The ACTA, which was ultimately finalized in May 2011, expands both the scope of criminalized behavior and the available punishments.  The ACTA and the TRIPS agreement both require that parties “provide for criminal procedures and penalties to be applied at least in cases of willful trademark counterfeiting or copyright [or related rights] piracy on a commercial scale.”  However, the ACTA goes a step further than the TRIPS agreement by providing some definition of “commercial scale” which was the focal point of the US-China dispute in 2009.  The United States argued that China had failed to comply with the TRIPS agreement by including in its laws high thresholds for applying criminal procedures and penalties to intellectual property infringement.  Thus, in the ACTA unlike the TRIPS agreement, “commercial scale” is clearly defined as “acts carried out on a commercial scale include at least those carried out as commercial activities for direct or indirect economic or commercial advantage.” 

One blogger jokingly questions whether the acronym ACTA stands for “Anti-China Trade Alliance.”[11]  China’s exclusion from the ACTA’s negotiating and drafting supports that the acronym is not baseless. Many argue that the ACTA’s drafters intentionally excluded China in the hope of pressuring them to comply with the agreement.[12]  As of October 31, 2012, China, however, has not signed to be a party to the ACTA.  Considering that China is the biggest producer of the world’s counterfeit goods, critics point out that the ACTA is worthless without China.  Besides that fact, there are several other reasons why many believe greater criminal enforcement is necessary in China.  First of all, due to the considerably low penalties handed down by Chinese courts, foreign intellectual property holders in China are reluctant to go into litigation.[13]  Further, several right holders believe that tougher criminal sanctions would deter piracy and counterfeiting.[14]

China, however, argues that it has the unique enforcement system that is different from western systems.  China enforces the intellectual property laws through both administrative and judicial proceedings.  Judicial proceedings have found to be ineffective due to several reasons: corruption of judicial officials, lack of precedents, and the slow and expensive process.  These weaknesses made intellectual property holders turn to administrative proceedings instead. In fact, administrative proceedings are found to be “more effective under certain circumstances” and also “cheaper, quicker, more flexible, and less antagonistic.”[15]  This led one commentator to state that “even if China were to become a signatory to the treaty, IP theft in China would likely continue as usual. . . [and] any positive changes in the enforcement of IP rights in China will come about through internal means, and not through the imposition of a stringent treaty by China’s more economically developed neighbors.”[16]

Certainly, there is no merit for China to join the ACTA as a party. Then, when China, the world’s biggest producer of counterfeit goods, is not a party to the ACTA, why is the ACTA still significant?  When the TRIPS agreement introduced the criminal sanctions of intellectual property infringement for the first time in the international agreement, the ACTA laid out more comprehensive rules than TRIPS.  Other international intellectual property agreements in the future are more likely to include criminal enforcement provisions like the ones in the ACTA.  Thus, the ACTA signifies that criminal enforcement is accepted as an international norm.  In the future, even if China does not join the ACTA, China’s trade partners will likely be influenced by the international standards requiring the criminalization of the intellectual property infringements.

Min Ji Ku
Blogger, Criminal Law Brief

Photo by:  caitlinburke





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Felony Disenfranchisement


Election Day! It’s the day when citizens who want to be engaged in the political process, get the opportunity to have their say.  Unfortunately, for the nearly six million individuals who are disenfranchised due to felony disenfranchisement laws, Election Day is just a reminder of this basic civil right they are denied.[1]  Felony disenfranchisement occurs when an individual’s right to vote is taken away (either temporarily or permanently) because they have been convicted of a felony.  Forty-eight states and the District of Columbia currently have felony disenfranchisement laws in effect.  Only Maine and Vermont do not.   

The practice of restricting a convicted felon’s right to vote dates back to ancient Greece and Rome.  Certain criminals were denied the right to vote and the right to perform other civic duties.[2]  Its practice in the U.S. began during the colonization.  Voting rights were taken away from convicts who had committed crimes that brought their morality into question, such as fornication.  Later in the history of the U.S., the practice became popular again in the 1800’s in the South when white citizens where attempting to suppress the votes of African Americans.  After the passage of the Fifteenth Amendment, racists could not deny Blacks the right to vote without violating the law.  However, felony disenfranchisement provided a loophole.  Since Blacks were disproportionately convicted of crimes, disenfranchising criminals had the effect of restricting the right to vote of Blacks more than any other group. Although it is difficult to prove racist motivation in enacting felony disenfranchisement laws, it has been shown that the more minorities in a state’s prison system, the more likely a state is to enact felony disenfranchisement.[3]

The Supreme Court upheld felony disenfranchisement in the 1974 case, Richardson v. Ramirez.[4]  The Court ruled that disenfranchising convicted felons did not violate the Equal Protection Clause of the Fourteenth Amendment.  The plaintiffs in this case were three ex-felons in California who had served their sentences and paroles.  However, because of a provision in the California Constitution disenfranchising convicted felons, they were not allowed to vote.  They sued the Registrar of Voters in each of their counties, demanding that they be allowed to register to vote.  The Supreme Court ruled that section two of the Fourteenth Amendment differentiates felony disenfranchisement from other voting restrictions, so it is does not need to be “narrowly tailored to serve compelling state interests.”  

In his dissent, Justice Marshall highlighted four important issues with felon disenfranchisement.  First, states cannot provide any compelling or even a rational interest in disenfranchising felons.  Second, felons who have served their time have paid the debt they owe to society, so why continue to punish them?  Third, felons are affected by government action just as much as any other citizens and therefore should be able to participate in the process.  And fourth, disenfranchisement is a hindrance to rehabilitating felons and helping them to become productive law-abiding citizens. 

Among those who are opposed to felony disenfranchisement, there is debate amount the best way to challenge it.[5]  Some advocate for the Supreme Court to address the issue again, while others believe that this is an issue best reserved for state legislatures.  If the Supreme Court were to rule on the issue, it would become law for all states.  However, this would require the Court to overrule itself, which it does not often do.  If the issue is left to the states, as it is now, that will result in different rules all across the country with no uniform practice.  


 Felony Disenfranchisement Laws Nationwide [6]
There are five different types of disenfranchisement laws that exist today: permanent disenfranchisement for all felons, permanent disenfranchisement for some felony convictions, temporary disenfranchisement for the duration of incarceration, voting rights returned after completion of prison sentence and parole, and voting rights returned after completion of sentence, parole, and probation.  The right to vote is such an important facet of American society.  It’s too important to have the lack of uniformity we see in our current system.  Some might say that there are plenty of issues that are left up to states to make their own policy decisions regarding.  But, I would argue that because this felony disenfranchisement has the potential to deny a basic civil right from such a large portion of society, it should be held to a higher standard.  Marriage is a civil right that states were once allowed to deny to people. Each state was able to determine who could get married in that state. However, after it became evident that some states were discriminating against Blacks, the Supreme Court acted and established national law on the issue.[7]  Because Blacks and Hispanics are convicted at higher rates than their white counterparts, denial of voting rights because one is a felony has a heavier burden on them.  They are the groups that will be denied their rights.  Because of the potential for this to become a legalized discrimination on the basis of race, the policy should be outlawed.

International Disenfranchisement Laws
A look at other nation’s laws on felony disenfranchisement shows that the U.S. is not in sync with much of the international community.  The U.S. is a party to the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), treaty.  In 2001, the committee that monitors the implementation of the treaty, the Committee on the Elimination of Racial Discrimination, issued a report expressing concerns with the U.S.’s felony disenfranchisement laws.  In reaffirming the importance of the right to vote, the Committee found that the U.S. was violating UN principles of equity and fairness because such a large percentage of minorities are disenfranchised by the laws.  

In many other nations, Canada and South Africa for example, even inmates are are allowed to vote.  Other nations have prohibitions against felons voting, but the crimes for which this is allowed are well defined and narrow.  This is a huge contrast to the overly broad American practice, which prohibits nearly everyone with a felony conviction. 

Arguments against Felony Disenfranchisement
Felony disenfranchisement is unconstitutional and the practice should be outlawed. Although felony disenfranchisement laws appear to be race neutral, they have a discriminatory impact.  Not only is this evident to U.S. citizens, but as shown above, the international community notices as well.  Felony disenfranchisement affects the Black community more than any other in the country.  While around 2% of the entire voting-age population is disenfranchised, the number is nearly 7.5% for the Black voting-age population.  Thirty-six percent of the total disenfranchised population is Black, and 13% of all Black men cannot vote due to disenfranchisement.

Furthermore, disenfranchising felons serves no legitimate interest and it protects no ones rights.  It is an outdated practice that needs to be discontinued.  Citizens are not safer by denying the voting rights of felons.  Like Justice Marshall highlighted in Richardson, disenfranchisement also hinders the ability of felons to become engaged in society in a productive way.  If the Court will not overrule the practice, then it is up to state legislatures to pass legislation allowing felons to vote.



Bethany J. Peak
Blogger, Criminal Law Brief
*I would like to thank my classmate, Justin Clayton, for sharing with me some of his prior research on international felony disenfranchisement laws.


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