Professor: Free-trade agreement hampered by lack of transparency

Wednesday, May 07, 2014

LAWRENCE — The Trans-Pacific Partnership has the potential to be the most economically and politically significant free trade agreement in the Asia-Pacific region, but it is being hindered by a nontransparent drafting process and perceptions of favoring American corporate interests over poverty alleviation, according to a new article by a University of Kansas international trade law expert.

Raj Bhala, associate dean for International and Comparative Law and Rice Distinguished Professor at the School of Law, has authored “Trans-Pacific Partnership or Trampling Poor Partners? A Tentative Critical Review.” The article was published in the Manchester Journal of International Economic Law the same week President Barack Obama toured Asia discussing the agreement and other issues. The piece, listed in three different top-10, most-downloaded Social Science Research Resources Network categories, outlines problems that have stalled adoption of the agreement among the United States and 11 other nations that account for 40 percent of global gross domestic product.

“I didn’t start out seeking to criticize this agreement. I needed to be familiar with it to write the new edition of my next textbook and stay current in the classroom when teaching my students,” Bhala said. “As I learned more I became more skeptical and had more concerns. It became clear we are thinking too much about the wealthy elite, that our trade policy is ever-more corporatized, and we are also hearing these concerns from some of our closest friends and allies abroad.”

The Trans-Pacific Partnership, commonly known as TPP, was conceived in 2006 among four nations and has since expanded to 12. It is part of a growing trend among the U.S. and many other members of the World Trade Organization to form free-trade agreements, especially given the failure of the Doha Round to yield a comprehensive, ambitious and balanced multilateral deal. The U.S. alone has free-trade agreements with 20 nations, Korea, Colombia and Panama being the most recent.

One of the primary problems with the TPP is the lack of transparency in its drafting, Bhala said. Draft texts of free-trade agreements are generally made available to journalists and the public. Just two of the 29 TPP chapters were made available to the public. Those sections, addressing environmental and intellectual property law, only became so when they were leaked to WikiLeaks. Bhala’s scholarship draws from journalistic coverage of the leaked sections and analyses of domestic and foreign legal, governmental and nongovernmental organizations directly familiar with TPP talks.

American involvement in TPP makes economic sense, but also is driven by a strategic shift in focus from the seemingly easily troubled Middle East to the dynamic, entrepreneurial Asia-Pacific region, Bhala said. That strategic shift also means, if TPP takes effect, solidifying economic and political alliances to help contain China, even though the administration prefers not to make that admission. It is reminiscent of agreements the U.S. had with Western European nations to contain the Soviet Union during the Cold War. Even if China ultimately joins TPP, the U.S. and its allies already will have written rules on key issues of importance to China, such as duty-free, quota-free treatment for almost all traded goods, services sector liberalization, the behavior of state-owned enterprises and rules of origin for textiles and apparel merchandise. TPP then will be a “take it or leave it” proposition for China.

“Bluntly put, TPP and the pivot toward Asia is certainly justified by economic and demographic realities and projections. But the biggest reason is containing China,” Bhala said. “And setting rules of a big regional trade club before China joins, if it ever does, thus constraining it to play by those rules.”

However, in writing TPP rules, the U.S. and its trading partners have had profound disagreements. The perception is that American demands are simply too harsh, lack empathy and overtly favor American corporate interests over the most pressing matter in the Asia-Pacific region: poverty alleviation for those earning less than a dollar a day, and economic security for the fragile new middle class earning between $2 and $20 a day.

Two examples are opening Japanese agricultural markets to more imports from the U.S. and the sourcing of fabric for Vietnamese textiles, that country’s biggest industry. There are also disagreements on making Japanese markets more open to American cars and significant disputes on intellectual property. In the case of the latter, patents for pharmaceuticals, such as HIV/AIDS medications, are especially contentious. While American interests push for longer patent protection for medications, data exclusivity and so-called “evergreening,” Southeast Asian countries and NGOs argue that doing so only protects bloated corporations and stifles innovation while locals continue to die.

Those arguments are just a few of the problems holding up successful conclusion of TPP. Despite the differences among negotiating parties and political backlog in Washington, D.C., that has hampered American trade influence, Bhala believes there is still a good chance the parties will resolve their differences and finalize the free-trade agreement. That could be a boon not only to the nations involved in the agreement, but also to students in KU Law’s international trade courses. KU Law grads are practicing in 18 countries, including several Asian nations involved in TPP. The agreement could present many more opportunities for them, Bhala said.

“Essentially, this free-trade agreement is born of failure at the WTO level and the strategic shift to Asia,” Bhala said. “It’s bogged down by political gridlock in D.C., and a potpourri of disagreements on ancient issues such as farming and 21st century issues such as intellectual property, and the U.S. cannot bully its way to get a deal. I’m optimistic the U.S. will appreciate that sometimes helping our trading partners in the short term helps American in the long term.”

Building of dreams: A downtown real estate deal goes south, costing investors and retirees millions

Karen Dillon and Keith King wrote:

Millions of dollars are missing following the failed purchase of two landmark buildings in downtown Kansas City.

Critics say a Ponzi Scheme drained the pockets of dozens of victims including local power brokers, retirees living on fixed incomes and those with life-threatening illnesses, an investigation by 41 Action News found.

At the center of the defunct deals is Brenda Wood, a business woman from Leavenworth County who owns a small janitorial service that cleans school buildings and other facilities.

 . . . 

KU expert: Supreme Court ruling in affirmative action case a narrow one

Tim Potter wrote:

"What does the Supreme Court’s ruling in the Michigan case mean for Kansas?

First, keep in mind that it is a narrow ruling, said Richard Levy, a constitutional law professor at the University of Kansas School of Law. The issue, Levy said Tuesday, is whether a ban on affirmative action is constitutional, not whether affirmative action itself is constitutional.

KU law professor researches hidden US rape crisis

Tom Dehart wrote:

"On March 4, University Associate Law Professor Corey Rayburn Yung, published an article in the Iowa Law Review entitled 'How to Lie with Rape Statistics: America’s Hidden Rape Crisis.'

The article analyzes the undercounting of rape statistics in 46 cities in the U.S. with a population of more than 100,000 people, estimating that about 800,000 to 1.2 million 'complaints of forcible vaginal rapes of female victims nationwide disappeared from the official records from 1995 and 2012.'

 . . . 

KU law partners with Indian law schools

Kate Miller wrote:

"The University’s Law School recently revealed its new partnerships with four of India’s top law schools, which will encourage collaboration between students and faculty of the universities. In addition, the program aims to increase the University of Kansas’s visibility in India, enhancing job opportunities for law students from all universities involved.

Lawyer teaches new LGBTQ course in KU law school

Hayley Francis wrote:

"Lawrence attorney David Brown is teaching a new lesbian, gay, bisexual, transgender, queer seminar in the KU School of Law this semester. Brown has represented gay and lesbian clients including two LGBTQ couples that recently sued the state of Kansas for the ability to file joint income tax returns. In a recent interview, Brown discussed his course and the impact of the latest court decisions:

KU Law partners with India’s top law schools

Thursday, April 10, 2014

LAWRENCE — The University of Kansas School of Law recently added four prominent Indian law schools to its growing list of international partners. The National Academy of Legal Studies and Research in Hyderabad, the Government Law College in Mumbai, the Jindal Global Law School near New Delhi and the Indian Law Institute in New Delhi signed memoranda of understanding with KU Law, pledging to collaborate on research projects, scholarship opportunities and faculty and student exchanges.

Raj Bhala, associate dean for international and comparative law and Rice Distinguished Professor, signed the agreements on behalf of KU Law Dean Stephen Mazza during Bhala’s February-March lecture tour of India. Professors Balakista Reddy, Kishu Daswani, Sridhar Patnaik and Manoj Kumar Sinha at the four Indian law schools, respectively, were instrumental in establishing the partnerships.

“Simply put, KU Law is the first American law school with such an ambitious opening to India,” Bhala said, noting the institutions’ locations in India’s technology hub (Hyderabad), financial and Bollywood center (Bombay), and political capital (Delhi). “It would be like a non-American law school having arrangements with Stanford, NYU or Columbia, and Georgetown.”

The non-binding MOUs do not include financial obligations or administrative requirements, but they encourage interaction, program development and cross-marketing of degree programs, Bhala said. They also open up international career opportunities for graduates.

The Indian schools join KU Law’s existing partner universities in Australia, China, Ireland, Italy, Korea, Kyrgyzstan, Mexico, New Zealand and Turkey.

“KU is proud to have affiliations with law schools around the world,” Dean Stephen Mazza said. “I’m pleased that we now have affiliations with some of the finest law schools in India.”

The agreements bring new academic and clinical opportunities for KU Law faculty and students. For students, KU is developing an internship program with the Director General of Foreign Trade in Mumbai and the Mumbai Export Promotion Councils. The partnerships also build KU’s web of international legal contacts, a valuable networking tool for students and alumni.

“We look forward to welcoming law students from these institutions,” Mazza said. “They will bring a welcome perspective to the classroom. We hope these agreements will open up opportunities for KU students to practice in India.”

Already, faculty and students are engaging with India. Professor Jean Phillips is the first non-Indian appointed to the all-India Advisory Council of the Institute of Clinical Legal Education and Research. She will work with top-ranking Indian judges, lawyers and academics to shape clinical legal education in India. Professor Elizabeth Kronk Warner is collaborating with prospective Muslim female lawyers and activists to provide contributions for an upcoming journal symposium. Mazza serves on the advisory board of the first tax law LL.M. program in Asia, established by partner Jindal Global Law School. Two second-year law students, Madeline Heeren and Aqmar Rahman, will intern this summer in New Delhi at one of India’s largest law firms.

In addition to brokering the agreements, Bhala gave 18 lectures during his tour. Topics ranged from international trade law to women’s issues in Islamic Law. Bhala also met with WTO negotiators from Bhutan, toured the High Courts of Mumbai and Delhi, visited a factory manufacturing pulleys and engaged in international trade and saw the museums and memorials of Prime Ministers Jawaharlal Nehru and Indira Gandhi.

Bhala’s visit comes just before Indian elections, during which all 543 seats in the Indian Parliament and the office of Prime Minister are up for grabs. An unprecedented 814 million people are expected to vote.

“India is the world’s largest free-market democracy and soon to be the world’s most populous nation,” Bhala said, noting its strategic importance to KU’s International and Comparative Law Program. “The Indian market is opening up. The barriers to entry for Jayhawk lawyers are coming down. Our partnerships ensure that KU Law is a player in global legal markets.”

 

Law professor: More than 1 million rapes unreported in official U.S. crime statistics

Friday, March 07, 2014

LAWRENCE — More than 1 million rape cases have gone undocumented across the United States during the past two decades, according to research by a University of Kansas law professor. The chronic under-reporting happened during what was widely considered a “great decline” in violent crime.

Corey Rayburn Yung, associate professor of law, has authored “How to Lie with Rape Statistics: America’s Hidden Rape Crisis.” The article, which will appear in the Iowa Law Review, details Yung’s review of crime data from 1995 to 2012, which shows that by conservative estimates, nearly 1.2 million rapes disappeared from the official record. Yung analyzed data from the FBI’s Uniform Crime Report, which collects data from nearly every police department in the country, and is commonly used by policy makers, media and law enforcement as a picture of crime prevalence in the United States.

Yung has taught and conducted research in rape and crime law and noticed inconsistencies in the number of rapes reported in a number of cities. Raw numbers of rapes were much lower in some cities than raw numbers of murders, which raised red flags as murder is a less common crime. Yung then learned of media investigations in Baltimore, New Orleans, St. Louis and Philadelphia that documented cases of police departments under-reporting rape statistics.

“Originally I was trying to reconcile why the data was showing such anomalies,” Yung said of the impetus of his paper. “Then I found out about the four cities with documented cases of under-reported rapes, and the more I looked the more red flags there were. There were a number of cities where the numbers didn’t make sense.”

In all, 46 cities, or about 22 percent of the 210 studied police departments responsible for populations of at least 100,000 people, had “substantial irregularities in their rape data, indicating considerable undercounting from 1995 to 2012,” Yung wrote.

“Many people have an incentive for crime to be down on paper,” Yung said of the reason why rape numbers were under-reported.

Pointing to reduced crime numbers, politicians are often elected or re-elected, policy makers make decisions on police funding, officers are promoted, communities promote themselves as safe, and numerous other decisions are made. There is intense pressure, politically and socially, for police departments to show they are reducing crime.

“From a personnel perspective, every officer has a reason to downplay the numbers,” Yung said.

Rape happens to be one of the easiest crimes to under-report, for a variety of reasons. There is a very low conviction rate — only about 2 percent — for all rapes. That manifests itself in fewer cases coming to trial as they are viewed as harder to win, and less time and resources being invested in investigations. There is also often very little corroborating evidence that a rape occurred. In crimes such as murder there tends to be a litany of forensic evidence, and it’s obvious a life has been lost. In less severe crimes such as auto theft, there is an insurance claim that must be dealt with. In the case of rape, there is often not a rape kit, and an alarmingly high percentage of the time when there is one, it is never processed and any evidence it might contain is not used as part of an investigation, Yung said. In cases where drugs or alcohol made consent impossible, drug tests are often not performed in time, and even when they, are they don’t always test for all relevant drugs.

“If you wanted to manipulate a crime rate statistic, that’s the easiest one,” Yung said of rape statistics.

Yung’s article states police in the undercounting cities used three difficult-to-detect methods to manipulate rape statistics: Designating complaints as “unfounded,” which required little or no investigation; classifying incidents as a “lesser offense"; and failing to create a written report that a victim made a rape complaint. In addition to the four cities exposed by media reports, Atlanta, Dallas, Milwaukee, Mobile, Ala., Oakland, Calif., and Washington, D.C., submitted statistically dubious rape statistics in 92 of their 108 total reports to the FBI during the study period, Yung wrote.

By including the estimated number of rape incidents reported to police but not the FBI, Yung conservatively estimated that approximately 796,213 to 1,145,309 rapes were not included in the Uniform Crime Report from 1995 to 2012. The analysis indicates that the study period included at least 15 of the 18 highest rates of rape since the Uniform Crime Report began including rape data in 1930.

Rape complaints that are not investigated not only fail to serve justice for victims, they lead to more victims and impunity for criminals, Yung argues. Research has suggested that as many as 90 percent of rapes are committed by serial rapists or individuals who have committed the crime more than once.

“That gets validated when they’re not investigated,” Yung said of the perpetrators. “They can do it again and again. Police are essentially empowering rapists by not pursuing cases.”

There is little recourse for rape victims in many cases. If their complaint is determined “unfounded” or is never investigated, it is very difficult to take any sort of action without surrendering their anonymity. On top of that, most victims are never notified that their case is not being investigated.

While the FBI’s Uniform Crime Report is highly influential, it’s nature also contributes to the frequent under-reporting of rape. Police departments offer all information included in the report voluntarily, and there is little to no disincentive for not including complete and accurate statistics while there is overwhelming incentive to under-report, Yung said.

The implications of under-reporting are dire. Many rapists are never convicted, much less prosecuted or even investigated, leading to more rapes and more victims, Yung said. When left unchecked, the incidents can escalate to further violent crimes and even murder, which have troubling moral implications.

“Society has an obligation to stop rape and prosecute rapists. The current practices are incredibly far from that basic precept. What is worse is that the extent of rape in America has been covered up— rape victims have been denied basic dignity, so that some police could manipulate statistics to simply achieve artificially designated crime benchmarks,” Yung wrote.

While reports of a “great decline” in rape in the United States were untrue, the crime grew to crisis proportions that should urge everyone from city level government to federal policy makers to act. Yung suggests the FBI expand oversight of data submission for the Uniform Crime Report and training of police officers in using it. The bureau should also take action when departments report unprecedented decreases in rape while murder rates spike, a step it currently doesn’t take.

“Rape has not received significant priority in law enforcement, as crime data has lessened the perceived urgency for action. That can and should be changed with budgetary, resource and personnel increases from the federal and/or state authorities,” Yung wrote. “Local governments and police departments should allocate more of their existing officers to sexual assault investigations instead of low-level, nonviolent crimes. Further, police should implement secondary review of rape complaints to ensure that officers are thoroughly investigating cases labeled as 'unfounded' or similar internal department designations that have in the past disguised large numbers of rape cases.”

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