m law

Exculpatory Evidence -- Before and After

The Criminal Justice Section of the ABA has proposed an amendment to Model Rule 3.8 to elevate the ethical obligations of prosecutors. The proposed amendment states that " When a prosecutor knows of new, credible and material evidence creating reasonable likelihood that a convicted defendant did not commit an offense of which the defendant was convicted, the prosecutor shall: (1) promptly disclose that evidence to an appropriate court or authority, and (2) if the conviction was obtained in the prosecutor's jurisdiction, (A) promptly disclose that evidence to the defendant unless a court authorizes delay, and (B) undertake further investigation, or make reasonable efforts to cause an investigation, to determine whether the defendant was convicted of an offense that the defendant did not commit." Furthermore, '[w]hen a prosecutor knows of clear and convincing evidence establishing that a defendant in the prosectuor's jurisdiction was convicted of an offense that the defendant did not commit, the prosecutor shall seek to remedy the conviction." (See report by the Criminal Justice Section at http://www.abanet.org/crimjust/policy/rule3-8amend.pdf)

The objective of this amendment is to reduce the number of erroneous convictions as a result of not disclosing expulpatory evidence in spite of the obligation to do so by the prosecutors. This amendment calls for a very high ethical standard for prosecutors to abide by. Though the amendment may seem idealistic, it is a very formidable ethical standard for the legal profession that pershaps only members of a mature and civil society are capable of following.

Misunderstanding Nonwoven Bags and Execution

New concepts and ideas come out everyday to overwhelm the society, such as the protection of the environment and of human rights. Some choose to ignore them, some opt to understand them and put them into practice, and some run with them just to be au courant. In the case of eco-friendly bags, manufacturers have decided to run with the idea and make a fortune while consumers want to be trendy. It is questionable how often these bags are RE-used. More often than not, retailers in Hong Kong are replacing paper and plastic shopping bags by nonwoven eco-friendly bags. Whether it be for delivering pizza, buying a pair of shoes, or attending a conference, one will receive branded nonwoven bags. Throughout Hong Kong, more and more people are carrying these types of eco-friendly bags. But does that make Hong Kong an environmental friendly society? Does that create a more educated group of citizens? In comparison with other major cities such as London, Paris, New York and Tokyo, Hong Kong really stands out in using nonwoven bags. It is not difficult to start a collection of these bags. But how environmentally friendly is that if they are not re-used or recycled? Does it create more harm to the environment by mass producing these types of bags? The original intent of creating these eco-friendly bags was so that consumers could re-use them rather than simply replacing the use of plastic and paper bags.

In the case of human rights, one cannot avoid being baffled by Nouri al-Maliki, Iraqi prime minister’s comments released by his office the day before Saddam’s execution. He said, "Our respect for human rights requires us to execute him, and there will be no review or delay in carrying out the sentence." (Steven Negus and Demetri Sevastopulo, Mixed signals as Iraq braces for the execution of Saddam, Fin. Times, Dec. 30, 2006, at A1.)

Again, another concept misunderstood.

An A Shares Experience -- A Roadshow for All

The dual listing of Industrial & Commercial Bank of China (中国工商银行) in Hong Kong and Shanghai has created a wave among retail investors in the mainland and HK. On October 27, ICBC, the largest lenders in China, wants to raise $22 billion by listing A and H shares simultaneously in Asian’s most lucrative exchanges.

Apart from ICBC’s dual listing being the first and biggest of its kind, the webcast roadshow they put on attracted the largest crowd ever. ICBC’s used Chinastock.com (中国证券网) as their platform for the roadshow. About 100 corporate investors and millions of retail investors “attended” the roadshow which included the two roadshow teams currently in the US and Europe. The 4-hour roadshow attracted some 2,000 questions. ICBC and the Underwriters answered 300 of them. Questions from the audience included topics such as industry growth and dividend distribution. At the end of the roadshow, the hosts were encouraged to see the enthusiasm towards their A shares; and the retail investors were pleased that they would be able to make a more informed decision. With the sheer number of prospective retail investors in China, this is one of the best examples of using technology to facilitate deliberation among groups. So what will be the future of prospectus? More and more investors are asking for CDs, and now there comes the success of an electronic roadshow. Law firm associates who are drafting prospectuses beware!

Anti-Americanisms Explained

At a policy discussion organized by the Foreign Policy magazine and Princeton University's Woodrow Wilson School of Public and International Affairs at the Princeton Club last night, Robert Keohane, Peter Katzenstein, both co-editors of the forthcoming book, Anti-Americanisms in World Politics, dissected the fundamentals of Anti-Americanisms; and Keith Reinhard of DDB Worldwide, Director of Business for Diplomatic Action, an NGO based in San Francisco, offered practical solutions by bringing in the business perspective.

All three panelists agreed that there are different strands of anti-Americanisms. Thus, it is important to look at the issue in plurality. According to Koehane and Katzenstein, the understanding of anti-Americanisms should be distinguished into opinion and bias. Opinions change according to a temporal perception of what the U.S. does, such as its foreign policy, culture, attitude towards higher education and consumerism. Despite the dislike, there are still millions of people who want to get a U.S. visa. On the other hand, bias is a deep-seated distrust of what the U.S. is, almost in the form of racial predisposition, which is much more difficult to uproot. Katzenstein suggested that the reason for this dichotomy stems from the diverse character of the American society. For example, America exports Protestantism and pornography.

Reinhard applied the business model in understanding the issue. According to Reinhard, anti-Americanisms is analogous to a brand in crisis, and it loses the benefit of the doubt. It almost becomes politically correct to dump on the U.S. in most parts of the world. He suggested a composite solution to the issue which has an acronym STARS (utilizing an acronym is in and of itself very American. I do not quite understand why acronyms are so indispensable. The number of acronyms my study group and I tried to learn and make up in law school is astronomical. Who can forget “IRAC”?!): Sensitize key American constituents, Transform personality of the American people, Amplify things people like about the American people, Reach out to the Middle East and Germany, Serve as a connection between the private sector and the state government.

To renew a positive image for America, the government must partner with the business sector to convey a harmonized message to the world, that America listens, helps, and works as a team player. At the same time, it is necessary to educate Americans on the world they live in. According to the 2006 National Geographic – Roper survey, among 18- to 24-year-old Americans given maps, half of them cannot find New York on a map and 6 in 10 young Americans don't speak a foreign language fluently.

At this point, generally speaking the French have a deeply institutionalized dislike of the Americans, and China loathes America’s hegemonism. British intelligentsia Margaret Drabble wrote the following in her book Hating America: A History:

I detest Disneyfication, I detest Coca-Cola, I detest burgers, I detest sentimental and violent Hollywood movies that tell lies about history. I detest American imperialism, American infantilism, and American triumphalism about victories it didn’t even win.

America should not be out there to please the world, but it is important to recognize that the world it wants to globalise also needs to see America being globalised, too.

What Makes New York Work Better?

The recent Henry Hart Rice Urban Policy Forum at NYU Wagner School titled “What Makes New York Work?” featured Kate Ascher, the Executive Vice President for Infrastructure of the New York City Economic Development Corporation, and also the author of a new book, “The Works: Anatomy of a City.” Ascher gave a light contrast of the old and the new structure of public infrastructure and utilities such as the mail system, power, subway, trash, sewage, clean water, maritime cargo, rail and freight. The pneumatic tube mail network illustrated in her book was one of the most fascinating “old” infrastructures that NYC had in the late 1800s and early 1900s. A piece of mail dropped at Herald Square took 11 minutes to get to the Met and 4 minutes to Grand Central. The audience was fascinated by this fact, though we all use email which travels much faster than this speed. Another fun factoid is that the current recycling plan which has been in place for about one year is similar to that designed by Colonel George Waring in 1895, where he ordered NY residents to sort their garbage. As there are many things that work in the city, there are plenty that do not. It is not an anomaly to find a broken payphone in the subway, pot holes as well as disconnected push-button traffic lights. Ascher’s research showed that about ¾ of those push-button traffic lights in the City are disconnected (and we all wonder why it takes so long for the light to change after pressing the button!). The City claims that it costs $400 a piece to remove them, so they decided to disconnect and leave them alone.

Undoubtedly, infrastructural problems faced by New York City are common to metropolises around the world. Half the world across, Beijing, also an old and glorious city, seems to have found a workable solution by employing the concept of mobile government or “M-Government.”

In 2004, the Dongcheng District created a two-tier municipal administration to manage its urban infrastructure using its GPRS network. The first tier is the Supervision Center. The district is divided into cells, each with supervisors patrolling with a mobile handset to check and report infrastructural problems. The information, including photo images is sent back to the Supervision Center with the position on the GIS. The Supervision Center then passes the information along to the Command Center to take appropriate action. The use of mobile technology encourages an effective coordination of supervision and enforcement in providing better public service. Currently, New York City has a 311 system that was put in place a couple of years ago. It is one of the most direct interface between the government and the public. The system relies on citizens to call in problems or things that need repair. It also serves as a conduit for disseminating information to the public. However, it is rather passive as compared to the m-government project in Beijing. If a 16-sq. mile Dongcheng District can use mobile/grid technology, all the more reason for a 22-sq. mile Manhattan to learn from this example and make use of the ICT sector.

Gaming with Gamers -- A Growing Rights-Conscious China

The Chinese government is easing the anti-addiction online game policy after an influx of complaints by online gamers. In October 2005("Are Online Gamers in China a League of Their Own?" October 4, 2005), the General Administration of Press and Publications in Beijing proposed a set of anti-addiction policies which place a five-hour consecutive playing time limit on gamers, minors and adults alike. Trespassers of the regulation will be penalized by losing their virtual weapons/points, or being automatically logged off. As a result, adult gamers protested with their virtual weapons – emails. On March 22, the agency announced a new system. Effective this June, adults are exempted from the time limit but gamers will have to enter authentic ID information in order to play online games. On one hand, the new system will grant access to parents to find out what games their children are playing and their online status. On the other hand, the public security department will authenticate the ID information and points will be voided if forgery is the case.

However, the policy may not have much teeth since registered gamers seldom use their real names and age. Consequently, it is still not clear how effective the authentication process will be. Also, granting access to parents may just spoil the fun of the massive multiplayer online role-playing games (MMORPG). More importantly, what kind of protection is in place to prevent an outbreak of identity theft?
Does such move indicate that the government is easing or losing control? Only time will tell whether it is one or the other, or both. But what is exciting to China is the growing of right consciousness among Chinese citizens and that their voices are being heard. Perhaps the Chinese government is finally letting the parents be the monitor of their children rather than it being a parent to its citizens.

LEXREX v. LackLEX

The intent of the pamphlet, "On Common Sense" by Thomas Paine which fueled the American Revolution, was to bring forth an ideal for America that "the law is king."

Theodore Sorensen’s speech at today’s luncheon at the Center for Law and Security titled “What history will tell us about today and tomorrow“ was more than an account of the historical events he was involved in, but a genuine inquiry into the current administration and its opposition, and whether law is still the king in the United States.

He did not hesitate to criticize the current government for breaking the law. He was displeased with the government action in preempting the Wiretap statute and by-passing the special court. He was outraged by the government’s violation of the Geneva Conventions and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment for torturing U.S. detainees and the government’s claim that the standard for international law set by the Geneva Convention is quaint. In contrast, the Kennedy administration tried its best to respect international law. During the Cuban Missile Crisis, President Kennedy not only appealed to the UN Security Council but also to the Organization of American States where he obtained an unanimous vote to support the decision to quarantine Cuba.

Concomitantly, he argued that not only can we not rely on the chief officer of law enforcement to speak out, we also cannot rely on the opposition to do so. According to Sorensen, the oppositions are afraid of three “Ls.” First, they are afraid to call themselves “Liberals.” They have forgotten the Latin root of the word – Liber, which means free and open-minded. Second, they run away from the “Law.” He stated that the Supreme Court’s ludicrous holding that campaign financing is free speech turns the campaign financing system into legalized bribery. Third, they run away from “Lies.” He accused the oppositions for believing in the lies that only an unilateral preemptive war could get rid of Saddam.

In 1962, at a speech at American University, President Kennedy while acknowledging the fundamental conflicts between the Americans and the Soviets, he added that, “if we cannot now end our differences, at least we can help make the world safe for diversity; for in the final analysis...we all inhabit this small planet. We all breathe the same air. We all cherish our children’s future; and we are all mortal.” President Kennedy did not want to impose democracy on other countries but to create a safe place for diversity. It is certain that the time has come when silence is betrayal* and Sorensen certainty does not betray his country.

*Speech delivered by Dr. Martin Luther King, Jr., on April 4, 1967, at a meeting of Clergy and Laity Concerned at Riverside Church in New York City.

Waltzing with Walt Disney, Hong Kong Style

From the end of January to early February season ticket holders were not admitted to the theme park because its capacity was filled. The Hong Kong Tourists Association, including the Hong Kong Government who has a stake on the theme park, were perturbed by the miscalculation on Disney’s part. The surge of visitors after the Lunar New Year came as a surprise to the Disney management. Most of the visitors were from the nearby provinces such as Guangdong and Jiangxi. Some were there for only a day trip. Undoubtedly, this mishap created a negative effect more on Hong Kong’s image than on Hong Kong Disneyland.

Apart from the miscalculation by Disney, what is rather daunting is the action chosen by the displeased visitors. Live imagines on the evening news of Hong Kong’s Jade TVB showing visitors helping each other climbing over the guarded Disney gate were disturbing. There was much bravado among the visitors who climbed over the gate as onlookers cheered on. Though it is too much to ask for any visitors to understand the concept of licensee verses invitee, opting for self-help is seldom a good alternative.

So, Mickey’s first Lunar New Year did not go so well. Apologies from Disney’ CEO aside, who is still trying to grapple with Chinese culture, the attitude of the visitors has shed some light on the differences on how one view authority. On July 2003 in Hong Kong, 500,000 protested against the passage of "anti-subversion" laws in order to protect civic freedoms, and again about the same number turned out in 2004 to express their desire to advance the democratization process. As recently as December 25, 2005, tens of thousands went to the street for a peaceful demonstration to demand a fully democratic political system. Violence was absent in all these demonstrations. Perhaps that is the approach and mentality that Hong Kong people take toward their government. Though they are discontent with the current administration, actions such as violence and self-help are not an option. It is worth the effort to further understand how the average Mainland Chinese perceives the HKSAR government, how they see themselves among Hong Kong people. Would they do the same if one day Shanghai Disneyland refuses admission? “One country, two systems” is an intriguing concept that has been working well for Hong Kong on a policy level. As Mainland China continues to increase the entry visa quotas for visiting Hong Kong, more Mainland Chinese will experience Hong Kong and hopefully learn more about the essence of one country, two systems.

La Fin de Siècle de la Siesta and the Birth of Halo

Different cultures and countries have their ways to improve workforce productivity. On December 27, the Spanish government promulgated a new law to eliminate the siesta for all government agencies. Since the gaining of its entry into the EU in 1986 under the socialist administration of Prime Minister Felipe Gonzáles, Spain’s socialist government has been working towards increasing its productivity and competitiveness. The practice of siesta had been under strong criticism since 1999, where the anti-siesta forces argued that a 3-hour siesta was an obstacle to an efficient work system. The original intent of the siesta was to allow workers to go home for lunch. However, as Spain continues to grow, more workers commute from suburbs and it becomes impractical to go home for lunch since a one way commute may take more than an hour. Gradually, there were signs among big companies that their lunch breaks were streamlined to two hours. This new law has further pared the siesta down to only one hour, though it is only applicable to the public sector. Business lobby groups like Circulo de Empresarios welcomed the change and so did millions of commuters. Now that government offices close at 5 or 6 p.m., workers can spend more time at home or to play. According to the 2005 Productivity Study by Proudfoot Consulting (a global consulting firm based in London), a poll showed that an average of only 22% of executives in five European countries, the U.S., Australia and South Africa believed that their business productivity has remained the same compared to 42% of the executives in Spain. An average of 47% of the executives believed that their business productivity has increased about 10% while only 34% of their counterparts in Spain believed so. So will Spain gain a competitive edge with the passage of the new law and forfeit a cultural phenomenon which makes Spain unique? How much culture does a member state has to give up in order to remain competitive in the EU or the world? Will there be any truth to the comment made by a communication consultant who told FT’s reporter Leslie Crawford in Madrid that he is doubtful that anything meaningful can be accomplished in a 45-minute lunch?

Instead of cutting short lunch hour to increase workforce productivity, DreamWorks and Hewlett-Packard gave birth to a silver spoon baby, Halo. According to HP, the Halo Collaboration Studio enables users to communicate in a vivid, face-to-face environment in real time regardless of their geographical location. Halo is said to have all the advantages of videoconferencing plus the attention to color science and imaging minus the technical flaws of the current ones in the market. In order to use Halo, a company has to purchase at least two Halo rooms ($550,000 each) set up for six people each with three plasma displays in each room where users utilize an on-screen interface to collaborate. The Halo room is also installed with studio-quality audio and lighting. Perhaps the best feature is that users can share documents and data directly from their notebooks using the plasma displays. (This reminds me of an electronic judge chamber in Singapore.) So far, HP installed 13 Halo rooms and PepsiCo three.

The quest for more workforce productivity and leisure time tarries. Working culture continues to go through its metamorphosis as companies and countries try their best to assimilate to the international work pace to gain a competitive edge. To avoid sounding like a eurosceptic or globalsceptic, one only hopes that technology will help to achieve these economic goals as well as to preserve cultures to maintain the kaleidoscopic nature of this world.

The Art of Games: A Balancing Act

It is equally exhilaration to see Daniel Auteuil as well as the Prince of Persia on the silver screen of Walter Reade Theater at Lincoln Center.  Semper Ubi: Ubisoft and the Art of Games, sponsored by the French Ministry of Foreign Affairs in Paris and French Cultural Services in New York was debuted at Walter Reader Theater last night.  Hollywood-styled CGI animation and in-game footage of five new games (Prince of Persia: The Two Thrones [looks very interesting], Brothers in Arms: Earned in Blood, Tom Clancy: Ghost Recon, Project Assassin [debuted in Tokyo Game Show in September] , and Peter Jackson's King Kong [a bit boring]): created by Ubisoft were previewed and followed by comments from the game designers and producers.

Colonel John Antal, the producer of Brothers in Arms, brought up an interesting point regarding game design.  He complimented on how game designers have reacted to the suggestions of players via their communications in message boards.  He contrasted the builder v. player relationship with that of filmmaker and moviegoer, where the communication is minimal.  Antal’s comment brought back Charlie Nesson’s enlightening remarks at the recent State of Play III conference.  It is encouraging to learn that game designers do listen to popular demands, but one should push beyond the level of dialogue pointed out by Antal in order to increase the educational value of games.  Again, it is a balancing act of responding to the preference of the players without compromising the level of creativity of the designer.  Brothers in Arms – Earned in Blood as a military action games seems to have gotten raved review among all WWII series.

According to Antal, designers were given military training for two days, his research team interviewed almost all members of the 101st Airborne  Division who are still alive to find out how the battle took place, and the map was drawn with extreme accuracy  to that of Sainte Marie du Mont and nearby towns based on photographs from the US National Archives.  .All in all, it is encouraging to see the level of authenticity and educational value of this game while being an immersive one.

From The Mongolian Cow Sour Yogurt Super Girl to the Building of Political Democracy

Yesterday, for the first time in history, the Information Office of China's State Council issued a whitepaper on political democracy, titled Building of Political Democracy in China.  A noteworthy recurring theme in this 12-part whitepaper is the claim that the type of socialist political democracy that China has, “enables people in China to become masters of their own country and society, and enjoy extensive democratic rights.”  However, it is “only under the leadership of the Communist Party of China (CPC) did they really win the right to be masters of the state.”  The whitepaper stresses the importance of cultural relativism when considering the appropriate type of political democracy for China.

The whitepaper further sets out the following principles that China will follow in building political democracy:

• Upholding the unity of the leadership of the CPC, the people being the masters of the country and ruling the country by law.
• Giving play to the characteristics and advantages of the socialist system.
• Being conducive to social stability, economic development and continuous improvement of the people's life.
• Facilitating the safeguarding of national sovereignty, territorial integrity and state dignity.
• Being in accord with the objective law of progress step by step and in an orderly way.

Regarding judicial democracy, it underlines the Party’s commitment to the rule of law.  The paper acknowledges and identifies the strengths and weaknesses of its system such as the call for open trials as prescribed in the Chinese Constitution and relevant laws. Dovetail with the strong commitment to the rule of law are impressive statistics such as “in 2004, procuratorial organs turned down requests for arrest warrants in 68,676 cases, reversed prosecution decisions in 26,994 cases, corrected 2,699 cases that had been improperly placed on file by investigation organs, allowed appeals in 3,063 criminal cases and 13,218 civil administrative judgments, demanded retrials in 4,333 cases, placed 5,569 criminal appeal cases on file for re-investigation, and changed 786 original decisions.”

The paper points out areas that the CPC must improve to achieve political democracy.  The major ones include: “the democratic system is not yet perfect; the people's right to manage state and social affairs, economic and cultural undertakings as masters of the country in a socialist market economy are not yet fully realized; laws that have already been enacted are sometimes not fully observed or enforced, and violations of the law sometimes go unpunished; bureaucracy and corruption still exist and spread in some departments and localities; the mechanism of restraint and supervision over the use of power needs further improvement; the concept of democracy and legal awareness of the whole society needs to be further enhanced; and the political participation of citizens in an orderly way should be expanded.”

Back in September, the Chinese version of American Idol sponsored by Mongolian Cow Sour Yogurt created much uproar.  Li YuChun, the “Mongolian Cow Sour Yogurt Super Girl” was popularly elected by eight million voters sending in their text messages.  Li, is far from the typical beauty that is featured in the Party’s propaganda, she even looks a bit boyish and lanky.  There was rumor that she is a lesbian.  After the election, China Daily commented on the result saying, “How come an imitation of a democratic system ends up selecting the singer who has the least ability to carry a tune?"  It is questionable that contest of this genre will continue in the future.

All in all, this whitepaper on democracy building is an encouraging and exciting sign to show that the government is becoming more transparent and accountable.  It remains yet to be seen if the commitment to the principles set forth in the paper will endure the subculture of “guanxi” and self-interests among other things.  Perhaps a good indicator is whether there will be a popularly elected Mongolian Cow Sour Yogurt Super Girl in 2006.

The Case of Sheng 475 B.C. v. iPod 60GB

The Hong Kong Economic and Trade Office and the Hong Kong Association of New York co-presented the Hong Kong Chinese Orchestra last night at Avery Fisher Hall, Lincoln Center.  The ancient musical instrument Sheng was heard throughout the evening.  It finally performed solo on the third piece of the evening: Fire Ritual, a very haunting piece about mourning those who have left us and celebrating those who are with us.  It is one thing to hear a Requiem and another to hear something like the Fire Ritual.  The Fire Ritual embodies the dichotomy of life and death, tangible and the intangible, hope and hopelessness and more importantly what we can still hold on to versus what is lost forever. 

When the music of Sheng took the center stage, it fulfilled its obligation to close the gap between that dichotomy.  Sheng is an ancient free reed instrument dated back to around 475 B.C.  It started as a pastime of ancient herdsmen and became very popular in Qin Dynasty (255-206 B.C.)  Sheng is a commonly used musical instrument for folk songs, particularly along the Silk Road.  In ancient China, before maps were drawn, voyagers and herdsmen found their way by following the music coming from the distance village.  It was a nostalgic moment to see and hear a Sheng at the same time knowing that most of the audiences had an iPod nano in their pockets.  The music that comes from the Sheng carries more than 2,000 years of history of mankind, and the music that comes of an iPod carries the hopes and dreams of our generation.

What will be the heirloom that we can bequeath to our family in the future?  A strand of pearl necklace, a grandfather’s clock, a first edition of a book, a peach tree or an iPod Video?  What will still be in the family treasure chest centuries from now?  Perhaps it will be impossible to find the right type of charger that makes the iPod works again.  Innovation should not replace tradition but to cohabit with its older brother.

State of Play III: To Some a Conference, To Me Heaven*

The wisdom Charlie Nesson imparted at the  State of Play III struck the core of the reason for all the intellectual and constructive exchanges during the three-day conference.  At the Law in Virtual Worlds panel on Saturday, October 8, Nesson took the audience into a different realm of the law in virtual worlds.  Other panelists discussed the common theme they drew from the holdings of seminal cases like Grokster, BrandX and Marvel v. NCSoft.  Nesson refrained from discussing the ‘excrement’ of the Supreme Court, instead he contemplated on the relationship between games/game builders and the law.  He quoted journal entries from Edward Castronova’s famous paper on Virtual Worlds: A First-Hand Account of Market and Society on the Cyberian Frontier to illustrate the emotional experience of learning, such as

Journal entry, 20 April, I have made my first kills, mostly rats.  They did me a great deal of damage and I have been killed several times.  I do return to life but it is a pain to go through.  Nonetheless, I have to attack the rats.  I need money to buy edible food and water, and rat fur, and other similar junk, is about the only thing I can get my hands on that the vendors will pay money for.

Nesson also believes that learning is addictive. To him, the Avatar is learning and the game builder is teaching.  So it is as important for court decisions to be correct as game builders building what is right.  He further cautioned law makers and judges to make law slowly so that they can catch up with their understanding of the virtual world.  He stressed that it is of utmost importance to teach children the difference between real and virtual world because there seems to be an increase in acceptance of the merging the two.

In times when courts are still struggling in their quest out of the maze of the virtual world, where monstrous game builders are hiding behind the veil of the notion of business model to defend themselves, and savvy gamers are stealing copyrighted materials, Nesson’s idea of social responsibility rests not solely on the courts but also that of the game builders, and that is what makes him a visionary.  Undoubtedly, the comments of the rest of the panelists were more than insightful, especially that of Susan Crawford and Ann Bartow,  Nesson’s wisdom is axiological to the discussion of law in the virtual worlds.  Foresight like that of Nesson is appropriate to be found in SOP III because it is itself a colloquium filled with dialogues ahead of its time.

* Luck
Langston Hughes (1902 - 1967)

Sometimes a crumb falls
From the tables of joy,
Sometimes a bone
Is flung.

To some people
Love is given,
To others
Only heaven.

Reasons for a Drop in Applicants from China to U.S. Colleages, a Bliss or a Grief?

The recent article by Matt Williams and Jerome Cohen titled To Strengthen Ties with China, Speak the Language First is a very appropriate and honest alert for the US to encourage immigration as a means of keeping itself abreast of a fast-growing China and the world.  More often than not, trade and commerce are the main focus in US-China relations, but it is reckless to disregard a meaningful cultural exchange in academia because it has a much longer-term and wider impact on the country as a whole.

One of the reasons why Chinese students are choosing other countries to further their studies is because of the quota shortage of the employment-based visa, such as an H-1B visa.   Tuition is no longer a major problem for those who want to come to the US to study. Most Mainlanders who are in business these days are extremely affluent.  The problem is that students often want to have an option to stay or practice their trade after graduation. But the employment-based work visa for professionals (this is the type of visa college or grad students apply in order to stay here after their F-1 expires or after graduation) is in terrible situation.  According to the State Department, current employment-based preference visa for Professions Holding Advanced Degrees or Persons of Exceptional Ability are only available for those with a priority date of Jan 2000. The quota for this year is used up for Chinese as well as for applicants from India and the Philippines. When the quota re-opens in 2006, the Center for Immigration Services will be processing applications filed in previous years.  So, if it is so difficult to apply for a work visa to stay in the US to work for a while, not to mention the possibility of applying for a PR status, it thus diminishes the attractiveness of studying here.  Another drop of applicants to US colleges may be attributed to the rise of nationalism in China.

Are Online Gamers in China a League of Their Own?

Singapore will be the only stop in Asia for the Cyberathelete Professional League (CPL) World Tour 2005.  The tournament will to be held at the Padang ( I was there for a Linkin Park concert last summer) from October 14 to 16; and Keystone Law Corporation is the offical law firm for the tournament.  The champion in each stop (host country) will receive US$ 15,000, while the winner of the grand final enjoys a $150,000 bounty.  The sport of professional gaming has entered the mainstream without a hiss.  Perhaps this is the beauty of a free world where anything is possible. Compare to the new regulations on gaming in China, gamers around the world seem to enjoy a type of freedom that they do not know it could be lost. 

According to the General Administration of Press and Publication in China, Chinese online gaming market generated RMB 3 billion (US$304m) in sales revenue last year, and the forecast for 2005 is RMB 11billion (US$1.4bn).  On August 23, new regulations were promulgated by China’s Ministry of Culture and Ministry of Information Industry to prohibit anyone under the age of 18 from playing online games involving killing others.  This might not have disappointed most gamers, but the new regulations further targeted the players of  massive multiplayer online role-playing games (MMORPG) such as World of WarCraft and Legend of MIR II. by requiring online game operators to install timing mechanism to automatically log players off of online games once they have exceeded a set number of hours of continuous play.  For example, gamers’ in-game characters will be severely limited as well as the value of their virtual goods if continuous play time exceed five hours.  There are situations where gamers will be forced to take a three-hour break before they can login again.

The saying, “do everything in moderation” is applicable in most things we do in life.  Parents of teenage gamers in South Korea and Japan maybe overjoyed if their governments will impose limit on continuous playing time.  So, what is the role of the government in regulating the “freedom to play”?  Is China over-regulating the gaming industry? Should the government play a parental role?  If not, will gamers have the discipline to protect their well-being?  What a fine line to draw and who can draw it well? 

Chilling or Protecting: New Regulations for Online News Services in China

Yesterday, the State Council Information Office and the Ministry of Information Industry introduced new measures on regulating online news services in order to combat the publication of false information, pornography, gambling and violence by online news sites.  See http://news.xinhuanet.com/english/2005-09/26/content_3543389.htm.  The new regulations came into effect immediately.  A spokesperson with the Information office stressed that the new regulations are aimed at deterring the dissemination of unhealthy news stories.  Under the new regulations, online news site which publish false information will be fined up to 30,000 Yuan (USD 3,700).  According to Xinhua, “the regulations provided that news sites set up by news organizations but publishing not just their own stories, and sites by other organizations featuring news stories must get approval from the State Council Information Office. Sites by news organizations that only carry their own stories should register at the main office or provincial information offices.”

This is not the first time that the Chinese government promulgated regulations to monitor the information dissemination on the Internet.  The first of these rules were enacted in 2000 but were quickly outdated by the tremendous growth of the Internet.  Currently, there are 103 million people who have Internet access in the mainland, as compared to 135 million in the U.S. 

While the intention of the new regulations is to make online news more reliable, the definitions of the elements of the rule remains nebulous.  For example, Xinhua pointed out that only "healthy and civilized news" and "information that is beneficial to the improvement of the quality of the nation, to economic development, and conducive to social progress" should be published, but the definitions of these terms are lacking. 

In order for the new regulations to have teeth, law makers will need to provide more guidance and clarity to the public.  Otherwise, well-meaning regulations like this will be misused to chill the freedom of information and speech in China which is vital to the growth of a civil society.  Regulations like this should undergo strict scrutiny by the courts rather than to be manipulated as a pretext to serve a different end.

More on Sabic Thinet

Thanks to great insight by Financial Times reporter, Marc Cleriot, who pointed out to me that Sabic's contractors were the ones who caused most of the delays in construction, as well as other delays due to the miscalculations of the size of the foundation. Another interesting point is that Sabic was the one who wrote the contract.

There is nothing new under the sun, or is there? Can we decode the Sharia black box?

Conflict of law remains one of the most interesting issues that globalization faces.  Perhaps the French legal system has been aware of it a long time ago.  Under the French Civil Code, any French citizen or company can go to the French court to file an appeal against adverse foreign court ruling.  Surely, Thinet International is taking advantage of it as a French construction company. 

Thinet and Sabic, the world’s largest petrochemicals company, which the Saudi government has a 70% stake in, entered into a construction contract with the forum of arbitration in Saudi court.  Thinet did not complete the building on time and Sabic withheld the last payment, though it was able to move into the building. The Saudi court under commercial law ruled in favor of Thinet and Sabic appealed. On appeal, the Saudi court held that the Thinet’s complaint should have been judged under civil (Sharia) instead of commercial law. Thinet believed that Sharia law does not provide for adequate remedy for the complaint and so it turned to the French court.  For example, Sharia law does not provide for penalties and most incidental and consequential damages as recognized in general contract law. The World Bank once estimated that in Saudi Arabia there are 44 procedures to go through for commercial disputes and it takes an average of 360 days, compare to 10 procedures and 250 days in the US.

What makes me curious about this case are two fold: (1) the reliability of the Saudi commercial court and (2) whether Sharia law is in fact inadequate in resolving the complaint. Sharia law is seen as a black box in the “Western” world.  But I can’t help to think that being such an ancient body of law which is the accumulation of many years of experience and wisdom that it is unable to deal with Thinet’s situation. After all, there is nothing new under the sun.  Expert of Sharia law should shed light on the situation and see whether it is inadequate.  Hopefully, having a better understanding of the Sharia law will strengthen the Saudi court and bring it up to par with its contemporaries.  In order for globalization to truly benefit all those who play a part, each player should have a fair opportunity to explain itself and be seen under equal light.

MapQuest for Blogspace

Manuel Lima's Blogviz thesis project seems to be a good way to map the changes in information diffusion in blogspace.  As governments around the world are engaging their citizens through their official websites and blogs such as Seoul's Cyber Policy Forum, it will be beneficial for the host to understand the factors affecting the dynamics and diffusion of topics and whether there are correlations between topic proliferators.  Knowing the crucial factors, the government may drive the conversation in their blogs to generate desirable policy outcomes or to educate its citizens in a conversational manner. 

What can Total do besides quitting Burma?

Last week, protesters distributed flyers to 7,000 small shareholders at the Total's annual meeting in Paris, while other protesters demonstrated outside French embassies in the US. Back in February, some 50 human rights organization joined effort to launch a global campaign to urge Total, a French oil group, to withdraw their operation from Burma.  The NGOs claimed that Total's investment in Burma fueled the military regime.  Despite the protest, Total refused to quit Burma and their reasons were explained in their webpage dedicated to their gas operation in Burma.  Thierry Desmarest, CEO of Total explained that if Total withdraw from Burma, another less socially responsible company will move right in to take Total's slot. This is a very legitimate concern. What is lacking in Total's Burma site is an open dialogue with other NGOs.  Often, websites are used as a one-way communication tool.  Host of the site will only post their view point without soliciting or facilitating an exchange with opposing groups. 

Big corporations need NGOs to keep them in check, while NGOs need to have big corporations so that they have work to do.  Given this co-dependent relationship between the two, more amicable solutions to their differences will be found by opening an on-going dialogue on-line, where opinions and suggestions can be heard not only from interest groups, but also from other big corporations.