Digital rights defenders gather in Taipei to tackle mass surveillance, online propaganda, authoritarianism

Culled from my notes, here are some of the most interesting things I heard last week in Taipei at RightsCon, the world's leading summit on digital rights for technology, commercial, civil society, and government sectors.

A dragon towers over the 2025 Taiwan Lantern Festival in Taoyuan.
RJ Peltz-Steele CC BY-NC-SA 4.0

Chinese Surveillance Technology

China is methodical in suppressing conversation around the world about the repression of the Uyghur people, according to representatives of the World Uyghur Congress (WUC). Within days of her speaking at the Hudson Institute, WUC Chair Rushan Abbas said, her sister and aunt in China disappeared. Chinese officials sometimes approach venues hosting conferences that will discuss the Uyghurs and offer them double the price to cancel the conference contract, according to Haiyuer Kuerban, director of the WUC Berlin office. Now governments in England and Germany are keen to buy from Chinese firms such as Huawei the very tech that Chinese authorities use to surveil Uyghur activists and their families, Kuerban said, a perverse reward for the facilitation of human rights abuse.

Linjiang night market bustles in Taipei.
RJ Peltz-Steele CC BY-NC-SA 4.0

If you use a China-based media service such as WeChat even outside China, you might be helping the Chinese surveillance apparatus. Open Technology Fund Fellow Pellaeon Lin explained that censors scan files shared online and "fingerprint" them to tailor the blocking of sensitive content from recipients in China. Scanning and fingerprinting happens on Chinese tech even when when users share content wholly outside China. Chinese users, meanwhile, can't penetrate "the great firewall" as easily as in the past, Lin explained. Authorities can see when a VPN is used, if not the content, and that's reason enough to bring someone in for questioning. Tor is better than a VPN because it wraps and disguises internet traffic within innocent transmissions. But Lin warns, it's a game of cat and mouse; the censors are always refining their methods.

Undersea Infrastructure

Remember that all of these panels took place in Taiwan, so criticism of China carried a grave sort of resonance. While discussion of digital rights naturally suggests the metaphysics of cyberspace, the infrastructure of the infosphere exists very much in the real world. One fascinating panel of experts fretted over the vulnerability of the world's undersea cables. Recent outages, such as the cut cable in the Gulf of Finland at Christmas, concerningly exhibit indicia of human agency. Professor Yachi Chiang, of the National Taiwan Ocean University, said, to my surprise, that Taiwan is located at right about the world's highest-density crossroads of undersea traffic. She's right; you can see it at the Submarine Cable Map by TeleGeography:

Submarine Cable Map CC BY-SA 4.0

The security challenges of this network are massive. About 20% of damage results from natural forces, such as deterioration and shark bites, Chiang said; sharks like to bite cables. About 70% of damage is caused by people. A lot of that is inadvertent, anchoring by fishing vessels. But there's no easy way to determine whether there was a malicious act, much less a nation behind it. In the Christmas incident, Finnish officials have alleged a deliberate anchor drag by a Cook Islands-flagged vessel doing Russia's bidding, NPR reported in December.

Taiwan had five incidents already in 2025, Chiang said, with four domestic lines and one international line disrupted. In one incident, the Taiwan Coast Guard took a vessel into custody and detained the crew. That incident was suspicious, because the boat had irregular routing for fishing and inexplicably bore a changeable nameboard. But the capture was exceptional, only possible because the ship was in Taiwanese waters, Chiang explained. On the high seas, ships bear flags of convenience, and any claim against the vessel must be taken up with the flag nation. Those claims in distant and ill developed bureaucracies go nowhere. So some better coordinated legal response is needed to protect the undersea information infrastructure, Chiang concluded.

Authoritarianism in Africa

While the United States retreats to some amalgam of isolationism and opportunism, China is dominating the developing world technologically. China built more than 70% of the 4G network in Africa, Amnesty International's Sikula Oniala said, and now is working on 5G. Chinese-made TVs are flooding the market, Oniala said, but to work, they must be connected to the internet via their Chinese software, raising specters of surveillance and control.

Starlink deployment over
Rhode Island, February 2025.

RJ Peltz-Steele CC BY-NC-SA 4.0

Authoritarian impulses in Africa are ever more complemented by Chinese technology and strategies. Governments control the gateways for internet access; last year, protests were met with internet shutdowns in Kenya, Mozambique, Tanzania, Mauritius and Equatorial Guinea, VOA reported. Amid the civil war in Sudan, both sides have used internet shutdowns strategically, cutting off information about unfriendly protests, permitting access when it undermines the enemy, and charging usurious rates for access to vital information, according to Hussam Mahjoub, co-founder of Sudan Bukra, an independent television channel.

While Starlink seems to promise liberation from government gateways, authorities in countries such as Sudan refuse to license the service and are pressuring the company to limit roaming access for accounts opened abroad, such as in neighboring Kenya, Mahjoub said. Worse, Tor Project Executive Director Isabela Fernandes warned, beware the gift bearer. The Bolsonaro regime in Brazil used Starlink data to track down and kill indigenous activists, she said.

Correspondingly, public access to information (ATI, freedom of information, or FOI) law is on the wane. In Kenya, Uganda, and Zimbabwe, mass surveillance is chilling human rights activism. And governments—even Kenya, the ATI law of which, on paper at least, I praised—are following Chinese examples in ATI law, Oniala said, reducing transparency purportedly in the name of national security.

Data Protection in Africa

Even with the best of intentions, African governments hardly can be expected to stand up to tech giants such as Meta, with turnovers that dwarf nations' GDPs, Open Technology Fund Fellow Tomiwa Ilori said. Speaking to African countries' efforts to establish meaningful enforcement of data protection laws, Ilori analogized: "You only get to kill snakes because they don't move together." In other words, African countries must coordinate their efforts. Franco Giandana Gigena, an Argentine lawyer and policy analyst for Access Now, described a similar dynamic in Latin American countries' inability to resist incentives from the U.S. government and American corporations to look the other way on data protection enforcement.

In the vein of collective action, the African Union Convention on Cyber Security and Personal Data Protection came into force in 2023, upon accession by Mauritania. However, the convention, adopted in 2014, already is dated. Ilori suggested it would benefit from optional protocols on extraterritorial application and stronger enforcement, and overall, African people need more education about their rights.

At that, there might be cultural impediments to EU-style data protection. Thobekile Matimbe, a senior project manager for the Nigeria-based Paradigm Initiative, said that the convention perspective on privacy, while inspired by the EU General Data Protection Regulation (GDPR), is more communitarian than individualist. Curiously, the African perspective, which prizes the integrity of the family, for example, over self-determination or the right to dissent, marks the same ground from which the human right of data protection emerged in the European tradition. The problem, Matimbe explained, is that authoritarians invoke the communitarian perspective to subordinate personal freedoms to the purported imperative of national security. That rationalization has seen surveillance deployed in Malawi, for one example, targeting human rights advocates, critics of government, and journalists, Matimbe said.

Disinformation Regulation

The classical dichotomy between true and false no longer works to balance free expression and disinformation regulation, according to Lutz Güllner, head of the European Economic and Trade Office in Taiwan. As Ukrainian journalist and Public Interest Journalism Lab CEO Nataliya Gumenyuk put it, debunking just isn't working anymore.

The problem, Güllner said, is that disinformation can have truth at its core, but the dis arises in the spin. That's why, he said, the EU's new Digital Services Act (DSA) aims not at content, but at manner of presentation: imposing on Big Tech a responsibility to police platforms for manipulative amplification of speech or suppression of others' speech (for example, planting an item of disinformation in a flood of mundane but accurate news). That isn't to say that the DSA strikes the right balance. Dionysia Peppa, a Greek lawyer and senior policy analyst for Beirut-based SMEX, said that the DSA rule on takedown of illegal content does not define "illegal," devolving authority to member states. In a time of right-leaning elections in Europe, states might disagree sharply over politically charged questions, such as when policy criticism of Israel becomes illegal hate speech.

In a similar vein, Liliana Vitu, chair of the Audiovisual Council of Moldova, talked about the challenges of combatting Russian propaganda in mass media. Banning "primitive propaganda" in "news" and talk shows was easy, she said. The devil lay in entertainment. For example, Russia-originating programs might consistently portray European characters as gay, effeminate, or weak, playing to stereotypes, she explained, while Russian characters appear masculine and strong.

Ukrainian journalists Nataliya Gumenyuk and Angelina Kariakina
talk about The Reckoning Project, which trains conflict journalists
in the preservation of evidence to prosecute war crimes.
RJ Peltz-Steele CC BY-NC-SA 4.0

As mere debunking doesn't work, Gumenyuk described research from The Reckoning Project seeking to figure out how journalists should combat disinformation. Viewers suffer from "compassion fatigue" at all the suffering in the world, she said. So when confronted with fact-based news accounts, such as the appearance of a drowned Syrian boy on a Bodrum beach, or the torture and murder of civilians in Bucha, Ukraine, viewers resisted and complained that journalists are out to manipulate them emotionally. The same viewers, though, proved receptive to people's firsthand accounts in documentaries. Gumenyuk described her astonishment at one study subject's testimony that he trusted the documentary more than the news because journalists were not telling the story. He seemed utterly unaware that the documentary form is a product of journalism and no more or less capable of conveying viewpoint than a news story.

The Reckoning Project, which Gumenyuk co-founded, occupies a compelling position at the junction of journalism and law. Gumenyuk said she tired of seeing reports collected by journalists excluded from war-crime investigations and prosecutions because the journalists did not understand rules of evidence. The Reckoning Project brings together journalists and lawyers to accomplish their complementary missions in seeking truth and justice. Gumenyuk gave as an example the questions a journalist might ask of a witness of atrocities, such as those committed by Russian forces against civilians in Bucha. Ordinarily, a journalist might ask, "How did the Russian soldiers kill this man?" But a leading question yields exclusion of the response as evidence in a legal proceeding. So journalists are trained to ask instead, "Tell me what happened that day."

Apropos of lawyering skills and picking up on the point that tech and its ill-intentioned users evolve faster than law and regulators, Armenian attorney and former head of the Armenian Data Protection Authority Gevorg Hayrapetyan played my tune when he told an audience:

One of the most important disciplines in law is philosophy of law, what law is and what it ought to be. One of the most important steps in developing human rights is recognizing the right.

Data protection, after all, was not a thing until someone thought of it. Maybe that's why it's not a thing in the United States. If we strip black-letter law of theory and policy and dumb down the American law school curriculum to comprise a glorified bar course and skills-training program, then we're headed in the right direction. Right? Asking for a friend.

Time to Save the World

Even were we all so inclined, is there time yet to save the world? Probably not. Law and regulation can't keep up, Güllner said, so the answer has to come from education, to develop people's sensory reflexes to detect disinformation. That will take a generation. "Ask my Ukrainian colleagues," he said. "We don't have that long."

Vitu described complex Moldovan legislation with multi-factor tests to determine whether disinformation conveys falsity and threatens national security. But that took years to develop with civil society stakeholders at the table to protect free expression; propaganda meanwhile grew yet more sophisticated. "Moscow never sleeps," she lamented. 

And Raša Nedeljkov, with the Serbian Center for Research, Transparency and Accountability, summed up the anxiety wracking the world:

A beacon of light for us was U.S. democracy. Now look what is happening.

Maybe that's the silver lining, journalist Tess Bacalla of the Asia Democracy Network suggested: The rest of the world, especially the European Union, will have to step up.

Comparative law research reaches prisoner rights; women's rights; tech patents; internet, drug reg

Law Offices of James L. Arrasmith CC BY-NC 4.0

In fall 2024, I had the privilege of teaching Comparative Law for the sixth time.

For my time and energies, the course is the best one to teach, because it offers the best opportunity for a lifelong learner. Law teaching usually requires mastering a broad and deep range of content so that one can guide students capably through it. Not so in Comparative Law, in which the teacher cannot possibly know the substantive content of all of the legal systems of the world. Rather, the course is about arming students with the tools of comparative methodology, and then savoring the opportunity to learn from them, what they find in their own research.

This year was not lacking in the savory. As I have in the past, I am proud and pleased to share a collection of abstracts representing the yeoman work of my students in the fall semester. You will see that the students devised some wonderfully innovative theses. The subject matter that researchers tackled spanned prisoner legal rights, marijuana and gambling regulation, black women's representation in the legal profession, women's rights in Afghanistan and in Dutch sex work, semiconductor patents, and regulation of online misinformation.

Alayna Wageman, Prisoners Are Human Too: A Comparative Analysis of Prisoners' Right to Legal Assistance in Chile and the United States. Both Chile and the United States guarantee, through their constitutions, the right to legal counsel for individuals who cannot afford a lawyer during criminal prosecutions. However, prisoners lack resources to access legal assistance when their basic human rights are violated while incarcerated. This project seeks to show how the extreme traumatization of citizens in the United States from the years of slavery and the extreme traumatization of citizens in Chile from the years of dictatorship continue to impact the treatment of prisoners today. This paper begins with an overview of the history of slavery in the United States, specifically in Massachusetts, and an overview of the history of dictatorship in Chile. Next, the paper will explain the laws that define the right to legal assistance for prisoners in Chile and Massachusetts. Finally, the paper compares two programs designed to improve prisoners' access to legal resources: the Prisoners' Legal Services (PLS) of Massachusetts in the United States and the Penitentiary Defense Program (Programa de Defensa Penal Pública Penitenciaria) in Chile. This analysis demonstrates how the influence of the historical extreme traumatization of societies continues to impact the treatment of prisoners in both countries, with focus on the limitation of access to legal assistance in prisons. The paper concludes by acknowledging the efforts of the PLS and the Penitentiary Defense Program, which are working to further protect the rights of prisoners.

Bryce Mayo, Comparing the Impact of Sports Gambling Advertising: A Legal Exploration of the United States and Australia. The recent legalization of sports gambling has taken the United States by storm, and as a result, an influx of advertising has taken over every commercial break. Sports fans, avid and casual viewers alike, cannot help but notice sportsbooks like BetMGM, FanDuel, and DraftKings attempt to entice an already invested community into raising the stakes of a game or match. These companies use tactics such as celebrity endorsements, sign-up promotions, and "can't lose bets" on your first wager. This paper compares how the United States and Australia have approached the regulation of sports gambling advertising since its legalization in 2018 and 1983, respectively. Although both countries follow the common law system, the legalization of sports gambling came about in drastically different ways. The United States struck down a longstanding congressional act, while Australia codified sports gambling, even making the first sportsbooks state owned and operated. Recently, Australia has issued licenses to private or publicly owned sportsbooks and their advertising regulations have changed as a result; whereas in the United States, private and publicly owned sportsbooks are the primary recipients of licenses, yet the regulations mirror that of Australia in 1983. Legalizing sports gambling in the United States is in its infancy, and growing pains are inevitable. It appears to be the wild west, quite reminiscent of tobacco advertising in years past. The United States can learn from Australia's experience and seek a balance between maintaining a profitable market and minimizing the creation of degenerate gamblers.

Carson Powell, Quality Over Quantity: A Comparative Analysis of Marijuana Quality Control Regulations Between the Netherlands and the United States. This paper compares the law and regulations of the United States and the Netherlands, on the regulations that are used to ensure the quality of marijuana sold legally. First, the paper focus will be on the Dutch marijuana policy, and its past, current and future regulation protecting the quality of the marijuana sold in "coffee shops." Next, the focus will shift to the United States and specifically Colorado regulations when testing the quality of marijuana. The paper views policies implemented to ensure quality and safety within the production, testing, distribution and the sale of cannabis/marijuana products. Finally, the paper compares Netherlands regulations on marijuana quality assurance and with Colorado laws and regulations that establish the safety of state citizens. The paper compares the laws and regulations, how they relate to each other, and the social results. The paper concludes with recommendations based on the comparisons drawn from the two parties, and whether each can become more effective and efficient with its own processes.

Kennia Joseph, A Comparative Analysis of Gender and Racial Equality for Black and Nigerian Women in the Legal Profession. This paper compares the laws in the United States and Nigeria that address gender and racial equality and their effect on black and Nigerian women in the workforce, specifically in the legal profession. One of the key issues in ensuring gender equality in employment lies in enforcing existing laws and policies. The comparison between Title VII of the Civil Rights Act and the overturned affirmative action practices thereunder, Article 11 of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), and the failed Nigerian Gender and Equal Opportunity Bill of 2016 highlight underrepresentation in the legal field. Despite developing systems to support and encourage race and gender equality, black women from different cultures, and political, societal, and economic climates share experiences in the same profession with similar laws, initiatives, and policies.

Nick Saathoff, A Comparison Between Patents on Semiconductors in Germany and the United States. Patent law in Germany and the United States protects those who invent or discover patentable processes. Ideologies between the two countries differ in the field. In the United States, a patent is mainly a monetary protection. In Germany, in addition to monetary protection, there is an honor and prestige associated with inventing. This paper discusses patent law in each country specific to the field of semiconductors. Semiconductors are one of the most technologically significant patentable items in the world today. The paper initially provides an overview of patent law in each country and what role semiconductors play. This paper identifies similarities and differences between patent protections, patent quality, and patent strategies in the United States and Germany. In doing so, the paper discusses key requirements of obtaining a patent. The paper discusses one requirement at a time, discussing the interpretation in the United States and the interpretation in Germany. The paper then notes patent statutes in each country specific to the semiconductor industry. Additionally, the paper will discuss nuances in each country’s patent laws in the semiconductor industry.

Rebecca Stump, A Comparative Look at Sex Work in the United States and the Netherlands. Sex work, historically, has been a controversial occupation for a variety of reasons, including religious beliefs, women’s rights, bodily autonomy, and the extent to which the state should regulate an individual's choices over their own bodies. During this period, sex work has been considered a shameful profession, one which must be criminalized to deter human trafficking or coercion. However, as understanding and advocacy for bodily autonomy and freedom to self, and countries such as the Netherlands reform and change their sex work laws, there are movements for change to law in the United States. The aim is for a discussion, through comparison of the legal systems of Nevada and the Netherlands and the main avenues for reform, partial decriminalization and full decriminalization or legalization, the social and legal implications of legalization of sex work to further investigate reform in the United States. Within research regarding sex work, there are critical biases that must be acknowledged prior to engaging in discussion. First, and foremost, is the moral and ethical considerations of sex work. Sex work is not merely seen as an occupation free from moral implication, but an occupation for which every person may offer their individual consideration as to the ethical value of the work. To engage in substantive discussion, morality must be stripped away. Instead, one must be willing to engage in discussion solely on the legal ability of an individual to make a choice regarding the services they offer using their person, and the role of the state in legislating that decision. To that point, a discussion regarding the legality of sex work is necessarily a discussion of the extent to which the state should regulate labor. There exist various viewpoints as to the question of federalism and the role of the state to regulate. This bias must also be considered.

Sean Pillai, Afghan Women's Human Rights: A Legal Analysis of Constitutional Governance vs. the Taliban Rule. Afghanistan’s history of political turbulence and violent turmoil have repeatedly challenged the legal and social status of women. Afghanistan attempted to rebuild as a democratic nation and included rights to protect women. Under the 2004 constitution, women gained significant legal rights, such as access to education, safety and freedom of movement and employment opportunities, marking a stark contrast to the Taliban's earlier reign (1996-2001). However, the progress made was curtailed with the withdrawal of U.S. forces in 2021 and the Taliban return to power. This analysis will address the shift in legal protections and the impact on societal roles for women contrasting the two eras: the 2004 constitutional government and the Taliban regime 2021 to present. By comparing the legal frameworks and implementation of women's rights in key domains such as women's access to education, safety and freedom of movement, and women's access to employment, this paper seeks to provide an understanding of the impact the two legal systems have on women.

Shiloh Worthington, The Digital Services Act vs. Section 230: The Western Hemisphere's Battle Against Misinformation. The European Union and the United States have both recognized the disparate effects of rampant and unchecked misinformation spreading across the internet. However, each has a distinct approach to combatting this epidemic of troublesome content. The EU battle against misinformation is best exemplified by the recently passed Digital Services Act (DSA), which places the primary responsibility of stopping the spread on the platforms themselves. Meanwhile, in the United States, the struggle to fight misinformation is at odds with the First Amendment rights of the platforms. Section 230 of the Communications Decency Act offers platforms total immunity for their misinformation content-removal practices, no matter how it conflicts with individual freedom of expression. Further conflict arises as the EU's DSA attempts to force American-based platforms with European audiences to comply with its content-removal practices under misinformation-related pretenses, even if doing so would remove American citizens' content otherwise protected by the U.S. Constitution.

Watch for these students on upcoming bar pass lists in a state near you!

Flags from Flagpedia, except Afghanistan Taliban from Wikimedia Commons, all public domain.

Law class visits Constitutional Court of Portugal

Law students and Dean Sam Panarella (left)
visit the Constitutional Court. © RJ Peltz-Steele

Since last week, ten talented U.S. law students have been making the most of Lisbon, Portugal, in UMass Law's first class abroad.

In our maiden venture, we are studying comparative data protection law in the United States, European Union, and Portugal. We have been treated to superb lectures by law faculty of our partner institution, the Universidade Católica Portuguesa (UCP).

Today, a UCP faculty member welcomed us to the home of the Portugal Constitutional Court, where he also serves as Vice-President. Justice Gonçalo de Almeida Ribeiro spoke to us there about constitutional conflict in the EU legal system.

The justice had instructed students to prepare by reading Digital Rights Ireland, a 2014 case in the EU Court of Justice (CJEU), and the "Metadata Ruling," a 2019 decision of the Constitutional Court of Portugal. In Digital Rights, the CJEU had struck down an EU directive on data retention as inconsistent with fundamental rights under the European Charter. 

Justice Gonçalo de Almeida Ribeiro addresses law students.
RJ Peltz-Steele CC BY-NC-SA 4.0

The case marked a recognition of the CJEU's own power of judicial review. But it also raised a confounding question. The CJEU lacks authority to review national legislation directly. So what would become of national, domestic laws that had been enacted already pursuant to the stricken EU directive? 

The Portuguese Constitutional Court in Metadata construed Portuguese constitutional law in harmony with the EU Charter to strike down as well the problematic provisions of Portuguese law that had been enacted pursuant to the directive. The responses of the Portuguese and other national constitutional courts to Digital Rights thus marked a pivotal point in the evolution of the EU's peculiar brand of "federalism" (to jam a square peg into a round word).

All of the law students in the class deserve praise for being good-natured and flexible in the face of a fluctuating itinerary for this fledgling Portugal project. They all assert, nonetheless, that they are here first and foremost for this remarkable learning opportunity, and not for myriad other benefits, for example, to see Taylor Swift at Benfica Stadium at what are by U.S. standards bargain ticket prices. That was icing.

UMass law students with me at Universidade Católica Portuguesa
© Prof. Sofia Pinto (licensed)

 

Global Law Classroom unites law students online

Law faculty around the world are organizing the Global Law Classroom to debut in the fall semester of 2024.

Global Law Classroom (GLC) brings together law students from participating countries via Zoom to study and discuss contemporary issues in comparative and international law. GLC started as a project of the European Legal Practice Integrated Studies program (ELPIS), under the EU Erasmus umbrella. 

The program was conceived and is coordinated by Melanie Reid, associate dean of faculty at the Duncan School of Law, Lincoln Memorial University. I've participated on the plenary faculty and as contributing faculty on the environmental law team and human rights team, developing academic modules in those areas. My students in three-credit-hour Comparative Law in the fall will participate in the GLC for one-third of their class-hours.

Besides human rights and environmental law, modules include criminal law, cybersecurity, anti-discrimination, and artificial intelligence, as well as an introduction to global lawyering and a negotiation exercise on climate risks.

Lissens presents EU data protection, IoT research

Sylvia Lissens, a Ph.D. student and teaching assistant at the KU Leuven Centre for Global Governance Studies in Belgium, presented part of her doctoral research comparing U.S. and EU data protection law at a doctoral seminar in Lyon, France, in December.

In her research, Lissens focuses on the internet of things (IoT) to examine how American and European law protects the personal data that machines increasingly collect. She has a law degree from KU Leuven and a background in criminology, so is especially interested in government access to personal data, which has been a sticking point in trans-Atlantic privacy negotiations.

Looking at the emerging norms in state legislation in the United States, on the one hand, and at developing data protection jurisprudence in the European Union, on the other hand, Lissens hopes to identify points of convergence and divergence that might smooth the way forward for agreement over data flows.

In Lyon, Lissens presented findings from the EU leg of her research at the International Doctoral Seminar in European and International Human Rights Law, hosted by the Université Jean Moulin Lyon 3. She explained how the broad range of data collected by devices in our homes, from phones to refrigerators, will confront national security and international trade regimes with new challenges in the protection of personal privacy.

Comparative law is among Lissens's teaching responsibilities at KU Leuven. She joined my Comparative Law class by Zoom this semester to provide an EU perspective on contemporary European legal issues. Students' experience was greatly enriched by both her experience as a professional and her informed perspectives as a Belgian voter. I'm privileged to serve on Lissens's dissertation committee.

Rule of law depends at least in part on how we teach

Differences in legal education between civil law countries and the United States—and analogous divergence in priorities in the American law school classroom—might have ramifications for the rule of law.

Prof. Vernon Palmer leads an Obligations I class.
Tulane Public Relations via Wikimedia Commons CC BY 2.0

Legal education in the United States and in the civil law countries of Europe are famously different. The American model is identified with case law, the Socratic method, and inductive reasoning. The civil law model is identified with code, lecture, and deductive logic.

Both sides have plusses and minuses, and that might be why, in recent decades, we see signs of change and convergence. American legal education has sought to marginalize the traditional model to one strategy on a menu of effective pedagogies. Meanwhile, many schools in Europe have sought increasingly to import the "Paper Chase" style of classroom engagement.

Teaching periodically in Poland for more than 15 years, I've found students delightfully receptive to the classroom experience that U.S. law students take for granted. I'm inclined to conclude, generalizing of course, that the way U.S. law professors interact with students has the potential to contribute valuably to education in Europe, where lecture still predominates. My U.S. students tend better than their European counterparts to develop forensic skills and to use analogical reasoning.

At the same time, I have found, generalizing again, that my students in Europe are better versed than their American counterparts in the history and philosophy of law. Their understanding of context is informed by a storied Latin vocabulary. They are better able to convert memorized knowledge to application.

There is no doubt that the way law schools teach has an impact on how lawyers work and think about the law. What's less clear is the extent to which this impact represents a normative social advantage—for example, better preparing lawyers to protect human rights and uphold the rule of law.

In recent years, Europe has been struggling with rule-of-law crises in central and eastern Europe. In particular, populist movements embodied in the Duda and Orbán regimes in Poland and Hungary have given rise to disputes over judicial independence. In a similar vein, the Romanian legislature enacted judicial reforms in the late 2010s. 

Ostensibly, the Romanian reforms were implemented to combat corruption. But that's not how Brussels saw it. The reforms wound up before European Union courts, culminating in judgments in 2021 and in 2022. The 2021 judgment of the Grand Chamber has been well regarded as outlining a progressive tolerance for the development of the rule of law while affirming EU supremacy ("primacy") in constitutional law for matters within the union prerogative.

Unfortunately, Romanian resistance to that supremacy caused the Grand Chamber to revisit the problem last year. Notwithstanding the proceedings in European courts, pro-reform domestic authorities and the constitutional court of Romania had upheld the reforms. Authorities moreover asserted that lower court judges could be subject to discipline for testing Romanian constitutional court rulings against the requirements of EU law.

The Grand Chamber held in 2022 that "ordinary courts of a Member State" must be permitted "to examine the compatibility with EU law of national legislation which the constitutional court of that Member State has found to be consistent with a national constitutional provision that requires compliance with the principle of the primacy of EU law"; and that domestic judges may not be disciplined for "departing from case-law of the constitutional court of the Member State concerned that is incompatible with the principle of the primacy of EU law."

At the meeting of the General Congress of the International Academy of Comparative Law (IACL) in Asunción, Paraguay, in October, a panel on rule of law examined national reports from 16 countries, including the United States, Poland, Hungary, and Romania. I found especially compelling remarks by the rapporteur for Romania. (I'm sorry that I did not get the rapporteur's name; it does not appear in the composite issue report.)

Law professors everywhere, laudably, want their students to be prepared for any job, the rapporteur said. But European students feel they're trained as if to become judges. Roman heritage, Roman law, he said, is sacred. Motivated to prepare students to do legal reasoning, he said, European law professors train students that there is "only one correct meaning," "one true meaning" of a text, and the students, in turn, "become very formalistic." 

Often, he said, judges then "miss the point" by "applying law automatically." And that was the problem, he opined, with the Romanian constitutional court in upholding the judicial reforms. The court reasoned, he explained, that because rule of law exists in both the Romanian constitution and EU treaties, the court "blindly" concluded that Romanian law comports with EU law. "False," he said; "it's the way in which we teach."

In other words, the Romanian judges assessed black-letter law for comportment with black-letter law without digging beneath the surface. They were ill equipped, or declined, to look beyond formalism to test the law functionally. Moreover, by shielding the constitutional court's analysis from further interrogation in the lower courts, top jurists were excessively insistent on the exclusivity of their prerogative: one true meaning.

I don't know enough about the situation in Romania to assess the merits of the Romanian position, or the EU position, or the perspective of the rapporteur. But I was intrigued by his parting thought:

"I'm astonished," the rapporteur said, that "in the United States, you practically criticize law professors that they don't tell you the true meaning. It would be a pity to change that."

As I wrote recently, law professors in the United States are under great pressure to abandon traditional teaching methods in favor of bar prep and skills readiness. Law schools such as mine place little value on policy, theory, and moral deliberation, but prize memorized law and practice skills. The latter are valuable, to be sure. But it's the former that make law a profession and not mere occupation. 

Prioritization of occupational objectives pressures professors to abandon the traditional teaching strategies of the American model. Cases give way to code, or rules. Inductive reasoning gives way to deduction. Socratic dialog gives way to PowerPoint outlines, recall games, and lectures. This is convergence of a sort. It's not a good sort.

I don't contend that the traditional model of legal education in the United States is superior to other models. Nor would I enshrine the case method to the exclusion of a multitude of teaching strategies. But American legal education in the 20th century excelled at preparing lawyers to turn problems over and examine them through many lenses.

If we do our job right, law professors create a space for creativity to thrive. That creativity defines law as a profession. And only as professionals can lawyers safeguard the rule of law.

It would be a pity to change that.

Me and my mate Octavio Sosa in Paraguay. A first-year engineering student, he plays a mean guitar.
RJ Peltz-Steele CC BY-NC-SA 4.0

 

Americans chase dream of air passenger rights, while EU consumer protection reaches age of majority

Boarding a flight in Ilorin, Nigeria, in December 2022.
RJ Peltz-Steele CC BY-NC-SA 4.0

A Savory Tort Investigation

The Christmastime Southwest meltdown has prompted tongue wagging in Congress over a "Passenger Bill of Rights" to redress the radical imbalance of market power that has left Americans at the mercy of an oligopolist airline industry for decades.

Don't get your hopes up. In the United States, airlines have been playing cat and mouse with regulators since the mail took to the air in the 1920s. And the cat has never been enthusiastic about the chase. 

Passenger protection from exploitative practices in the airline industry has been a congressional dog whistle since overbooking became a business model in the 1960s. Ralph Nader took on the issue, along with so many others, in the 1970s. We've swung back and forth between transparent pricing and the piling on of surprise fees enough times to make you use your sick bag. Over the years, more passenger bills of rights have died in Congress than we have airlines. Well, that's a low bar, but you take my point.

As in all things when corporatocracy clashes with simple equity in the marketplace, the European Union is doing a better job than the United States to level the playing field. The crown jewel of more robust European consumer protection is Regulation 261/2004, which has been on the job for almost twenty years. When flights are delayed or canceled, EU 261 requires compensation to customers in cold, hard cash.

The circumstances that lead to an EU 261 payout are well circumscribed. But when it happens, an airline feels the pinch. The regulation pertains upon delay or cancellation, EU guidance explains (bold in original), when:

• the flight is within the EU and is operated either by an EU or a non-EU airline;
• the flight arrives in the EU from outside the EU and is operated by an EU airline; or
• the flight departs from the EU to a non-EU country operated by an EU or a non-EU airline.

Here is the compensation schedule, per passenger:

• Type 1: €250 for a delay of two-plus hours, or €125 if re-routed to arrive fewer than four hours late, for flights of 1,500 kilometers or less.
• Type 2: €400 for a delay of three-plus hours, or €200 if re-routed to arrive fewer than four hours late, for intra-EU flights of more than 1,500 kilometers and for all other flights between 1,500 and 3,000 kilometers.
• Type 3: €600 for a delay of four-plus hours, or €300 if re-routed to arrive fewer than four hours late, for all other flights.

There need be no compensation when the delay can be attributed to a cause extrinsic to the carrier, such as weather. A passenger's receipt of compensation, including non-monetary assistance, pursuant to the law of a non-EU country precludes an EU claim.

Cash compensation is a welcome recognition that airline passengers suffer real costs when flights are delayed or cancelled—more than what is covered by a meal voucher or even, when necessary, an overnight stay. Ours is now a world of nonrefundable reservations for hotels, cars, and tours. Travel insurance is becoming a must, and yet another expense. Vacation time meanwhile is increasingly scarce, especially for Americans.

Meaningful compensation incentivizes airlines to work smarter. For example, scheduling departures too tightly, failing to anticipate mechanical needs, or simply de-prioritizing the correction of problems all become decisions with bottom-line consequences.

The outer jurisdictional limits of EU 261 are not spelled out on the face of the regulation, but European regulators and courts largely have construed silence expansively. EU 261 claims are not limited to EU citizens and airlines, as long as an EU country can exercise jurisdiction. EU 261 has an exception for "extraordinary circumstances," but courts have construed the exception narrowly, excluding technical problems. Court rulings in the late 2010s led to the application of EU 261 to U.S. carriers operating international connections to and from the EU.

At the same time, compliance has been a mixed bag. The fuzziness at the margins of EU 261 application, along with the reality that not all domestic authorities have been prepared to invest fully in enforcement, has afforded airlines room to fudge fulfillment of their obligations.

In the event of a maloccurrence, airlines are obliged to make passengers aware of their EU 261 rights, and passengers file claims with the airlines, not with regulators. The airlines can be less or more forthcoming with notifications and the ease with which consumers can file claims. There are reports, moreover, of airlines simply not paying what's owed. As a result, a cottage industry has arisen of intermediary companies that facilitate consumer claims in exchange for significant contingency fees.

As an American citizen traveling to, from, and through the EU, I’ve made some EU 261 claims in recent years, since the regulation expanded to reach foreign flight legs. I tested different options to make my claims, and I promised to share some outcomes.

No-Coverage Cases

It’s first important to articulate unfortunately ever more common passenger experiences that are not covered by EU 261—and, needless to say, precipitate no consumer protection in U.S. law.

My fellow Lagos-bound passengers and I wait in Paris.
RJ Peltz-Steele CC BY-NC-SA 4.0

CLAIM DENIED by Air France: EU transit.  In December 2022, I traveled from Boston, Massachusetts, to Lagos, Nigeria, via New York and Paris.  Because of a mechanical problem, after several hours’ delay, the connection from Paris to Lagos was canceled and rescheduled for the following day.  My booking was with Delta; KLM owned the itinerary; and the canceled connection was operated by Air France. EU 261 charges the operator with responsibility. Air France provided a €15 meal voucher and overnight accommodation, including a shuttle after quite a long wait. Such intermediate compensations do not preclude EU 261 awards.

Air France denied the type-3 compensation claim I filed directly with the airline. An Air France agent wrote:

I am really sorry to have to inform you that the EU Regulation 261/2004 does not apply when flight departs from a point outside the EU or EEA and travels to a final destination outside EU or EEA, via a connection in an airport in the EU or EEA.

Since your flight departs from Boston and arrives in Lagos via New York and Paris, we regret our inability to accede to your request for compensation on this occasion.

To be clear, every leg of this journey was a different "flight," with its own flight number; this was not a continuation "flight." My itinerary originated and terminated outside the EU. At the same time, Air France's interpretation of "flight" in EU 261 seems consistent with my other claim experiences. I suppose Air France was obliged to pay compensation to passengers who originated in Paris; I don’t know. I was not given any particular notice of EU 261 rights; maybe passengers originating in Paris were.

NO CLAIM against Air France: Advance cancellation. In November 2022, I traveled from Boston, Massachusetts, to Kraków, Poland, via Amsterdam.  I booked through Egencia; Air France owned the itinerary; KLM operated the connection to Kraków.

A month after my purchase, but still a month before the departure, KLM canceled the connection to Kraków. KLM rebooked me on another flight, lengthening my layover by five hours and putting me late into Kraków. Air France offered a full refund, in the alternative, but refused to book me on another carrier that would arrive earlier into Kraków.

Patriotic illumination aboard an Air France flight.
RJ Peltz-Steele CC BY-NC-SA 4.0

The problem here was that I had paid more for a morning arrival in Kraków, because I had to work there that day. I could have booked for the midday or later arrival with another carrier for less money at the time I purchased, had I wanted to. I chose the SkyTeam Alliance specifically for the early arrival. In the month since the purchase, the alternatives had risen exorbitantly in price as international itineraries. I could still buy a replacement connection to Kraków for midday arrival from another carrier, but Air France also refused to release me from the KLM connection. If I failed to appear for the KLM connection, Air France would cancel my ticket home.  I had no choice but to accept the change and miss most of my work day.

KLM claimed that it canceled the morning connection—a month in advance—because of a "mechanical problem." Apparently, no regulation requires an airline to tell the truth. I rather believe that KLM canceled the flight because SkyTeam's multiple flights to Kraków were undersold.

I could not make an EU 261 claim, because airlines are permitted to make whatever changes they please more than seven days before departure. This is a big gap in consumer protection, because passengers have no ability to rebook with another carrier so close to the departure date.

I did complain to the U.S. Department of Transportation (DOT), because it is impermissible, even under U.S. regulations, for a carrier to cancel a flight merely because it's undersold. Unfortunately, this rule is rarely enforced, because it's so easy for a carrier to point to another reason for the cancellation. KLM continued to claim mechanical failure, never explaining how that hurdle could not be overcome with a month's advance notice.

DOT took no action, but entered my complaint in its "industry monitoring system." I suppose this is the same system through which, a mere 16 years after Southwest began A-B-C boarding, it seems finally to have dawned on federal regulators that maybe children should not be forced to sit next to strangers. That would have been a nice policy change to have had when my daughter was growing up.

NO CLAIM against Turkish Airlines: Airport change.  This is an older matter, but I’m throwing it in here because it's a variation on the problem of advance cancellation that might well happen to other people in today's tight market. 

In November 2020, I was to travel from Boston, Massachusetts, to Khartoum, Sudan, via Istanbul, on Turkish Airlines.  Within a week of departure, Turkish canceled my Boston flight and rebooked me on a departure from New York JFK. That’s not an easy or costless transit, from my home to JFK: a four- to five-hour drive each way, or a slow train with multiple transfers. Turkish refused any compensation, offering only complete cancellation as an alternative, and that only when I asked.

This was not an EU 261 matter, because there was no point of contact with Europe.  If the same thing happened, though, with a transit in Europe, EU 261 would not have applied, at least according to the reasoning of Air France in the above-described claim denial. If Turkish made such a change for an EU-bound flight, I hope that EU 261 would apply. I wonder what would happen if Turkish changed the airport, but not the flight number; that's not a delay or a cancellation.

I'll never find out, because I now exclude Turkish Airlines from my fare searches. I suggest you do the same.

Coverage Cases

CLAIM SETTLED with SATA Air Açores: Delayed flight within EU. In July 2022, I traveled within Portugal, from Lisbon to Terceira Island, on SATA Air Açores. Because of a mechanical failure, my 4:15 p.m. departure was delayed to 9:55 p.m. SATA gave me a €10 food voucher. I incurred some additional expense having to get a nighttime transfer on the island, and I lost some daylight leisure time.

My SATA rights notice.

Lisbon to Terceira maps out at 1,555 kilometers, so just over the threshold for a type-2 claim. When I received the voucher at the airport, the agent also gave me a well copied notice of rights in paper. The notice was in Portuguese with no translation.  In Portuguese, the notice accurately described the three types of EU 261 events, but conspicuously omitted any numerical amounts of compensation. In late July, I filed a €400 claim directly with SATA via email.

In September, SATA responded via email with a counteroffer: €300. I accepted. SATA sent me a form to provide my banking information for a wire transfer. I did so, but SATA wrote subsequently to say that it couldn't get the transfer to go through—foreign payers often struggle to align their parameters with U.S. bank data—and that it would send a check. In November, I received a paper check in the mail for US$322.

I accepted the SATA offer because I thought it was more than fair, even though I was entitled to €400 under EU 261. SATA implicitly acknowledged as much by offering more than €250. But my roundtrip ticket with SATA had cost me only €255. And I didn't feel there was any misfeasance on SATA's part. There was no indication that the mechanical failure could have been anticipated; airport agents acted quickly and efficiently to reschedule; and SATA tasked the flight to another plane the same day, if later. Overall, I remained happy with SATA service, despite my lost time. I don't know what SATA would have done had I refused the offer and insisted on €400.

CLAIM PAID by American Airlines: Delayed flight in United States. Also in July 2022, I traveled from Lisbon, Portugal, to Boston, Massachusetts, via Philadelphia, Pennsylvania. I booked on Egencia, and American Airlines operated all flights. The connection from Philadelphia to Boston was delayed more than three hours, but less than four.

Had American Airlines not made such a mess of this delay, I probably would not have thought to apply for EU 261 compensation. This was the kind of straightforward poor customer service that, sadly, Americans have simply come to expect. The delay seemed to have resulted from the unavailability of crew. Passengers actually boarded the plane, and then we were ordered to deboard and return to the terminal. Gate agents offered conflicting explanations. They seemed to be arguing with each other. The tension was contagious, and information was scarce. Space around the gate was overcrowded. The scene was chaotic, ugly, and frustrating.

It's not immediately apparent that EU 261 applies. The flight was a domestic connection; there were passengers on board with no passports. This was the inverse of the Air France claim-denial situation I described above. My point of origin in the EU was dispositive, even when the problem arose on a domestic connection in the United States. My American citizenship was immaterial. The relevant facts under EU 261 were that my itinerary started in the EU, and I arrived more than three hours late to my final destination.

Even insofar as EU 261 applied, I wasn't sure what type of claim mine was. The overall travel distance, the "flight," defined by itinerary, was more than 5,000 kilometers. But the "flight," defined by a leg with unique flight number, from Philadelphia to Boston was less than 500 kilometers. 

Under the circumstances, I expected that if I made a claim, American would deny it. After all, I might notionally be entitled to make a claim under European law, but where would I enforce? The U.S. DOT barely enforces U.S. regulations; it's not likely to expend resources to enforce foreign law. The relevant EU jurisdiction was Portugal. But would I, a non-European, have standing before a Portuguese regulatory authority? 

With so much uncertainty, I was inclined to let the matter drop. But over the next couple of days, I became angry again that American never reached out with any kind of apology for its mess. What the heck, I thought. At least filing a 261 claim would let me vent.

At the same time, because I seriously doubted that I would see a dime, I decided to try using an intermediary. After reading some reviews, I chose AirHelp, a 10-year-old startup from Berlin that is now global. AirHelp promises to make the claims process easy, and it did. In late July, I uploaded my documents and provided a short description of what happened. I got to vent.

AirHelp kept me apprised of my claim status. It sent me an email saying it had determined that I had a valid claim for €300. That seems right, using the itinerary as the measuring stick to reach type 3, and acknowledging that the delay in the end was under four hours. AirHelp said that it would make that demand of American Airlines. Thereafter, AirHelp periodically let me know that it was still waiting to hear back.

To my surprise, in mid-November, AirHelp told me that American had agreed to pay €300. AirHelp sent me an invoice showing that it was deducting its 35% contingency fee of €105. AirHelp sent me a check for the difference in U.S. dollars, $201.38. The fee was hefty, but maybe not bad for a claim I never thought would be honored.

✈     ✈     ✈

In sum, EU 261 is a powerful accountability tool, even if, 18 years on, it leaves some wide gaps in consumer protection. Americans should have at least as good a mechanism at their disposal. Our airlines meanwhile are fighting against accountability, trotting out the usual "be careful what you ask for" warning that our mere expectation of market equity will make air travel unaffordable. Seems to me that if American consumers are going to lose either way, misery loves company.

Sponsored in the present U.S. Congress by Senators Richard Blumenthal (D-Conn.) and Ed Markey (D-Mass.), the "Passenger Bill of Rights" now pending as S. 178 calls for a ticket refund and re-routing, even on another carrier, for delays of one to four hours, and, additionally, $1,350 cash compensation for delays of more than four hours.

I'm sure the check's in the mail.

EU leverages trade for sustainable development

Attorney Cyprian Liske presents at the University of Bologna.
Used with permission.

"Sustainability" is the word of our times, and the European Union has more than a decade's experience building sustainability expectations into trade agreements.

At the University of Bologna in October, for a program of the Guild of European Research-Intensive Universities, doctoral candidate Cyprian Liske, my friend, colleague, and former student, presented his research on sustainable development provisions in EU trade agreements concluded from 2010 to 2020. Here is the abstract:

On 27th November 2019, Ursula von der Leyen, at that time President-elect of the European Commission, delivered a speech in the European Parliament, in which she set a concise programme for the next 5 years of her term of office. "Sustainability" was mentioned in this speech no less than 8 times. "We have to bring the world with us and this is already happening," Ms. President said. "And Phil Hogan [at that time Commissioner for trade] will ensure that our future trade agreements include a chapter on sustainable development."

Indeed, the EU has been including trade and sustainable development (TSD) chapters in new-generation trade agreements since the Free Trade Agreement with South Korea (2010). However, such TSD chapters, devoted to the realisation of the Sustainable Development Goals, including environmental protection, preventing resource depletion, or protecting workers' rights, differ substantially in agreements concluded with particular countries....

The goal of the project was to comparatively analyse TSD chapters in trade agreements concluded by the EU in 2010-2020, pointing out common elements and differences. The analysis will let us critically explore what the reasons for those differences may be (e.g., the course of negotiations, economic dependency, trade partners’ level of development) and whether the EU is consistent in its sustainability requirements set towards its trade partners. It will also allow us to depict the current tendencies in the way how such TSD chapters are shaped by the EU in comparison with the global trends. The comparative analysis of the EU TSD chapters was conducted by the researcher qualitatively and quantitatively with the use of software (MAXQDA 2022).

The research parses the interests advanced by EU agreements..
© Cyprian Liske; used with permission.

The Biden administration lately has redoubled the U.S. commitment to the developing world, announcing at a December summit, for key example, an investment of $55bn in Africa over the next three years.

Development aid is often viewed skeptically by American taxpayers. That's understandable when the homeland is plagued by homelessness and financial insecurity. Isolationism streaks run through both libertarian and conservative ideologies, evidenced lately by Republican skepticism even of aid to Ukraine. But development aid can be justified with reference simultaneously to socioeconomic benevolence and to the donor's national security, thus, appealing to priorities both liberal and conservative.

Literal signs of Chinese investment are ubiquitous throughout Africa, as here,
in the rural community d'Oukout in the Casamance region of Senegal, 2020.
RJ Peltz-Steele CC BY-NC-SA 4.0

The United States has a lot of catching up to do. With hotly debated motive, China has invested heavily in the developing world, near and far from its borders. Chinese presence in Africa is ubiquitous, from massive infrastructure projects such as ports and bridges to telecommunication access in the remotest of villages. Russia, too, has lately gone all-in on Africa: a "charm offensive," researcher Joseph Siegle wrote last year, and "[t]he reasons aren't pretty."

Incorporating sustainable development into trade agreements allows western powers to facilitate development goals at less cost than direct investment, and even with potential gains through free trade. There's still a lower-common-denominator problem when competing against proffered Chinese and Russian agreements that attach browbeating strings only on the back end. But access to Western markets brings some incentive to the table.

A practicing lawyer and legal translator, Liske is pursuing his doctorate on the nexus between sustainable development and international trade law in the context of EU external policy. He graduated in law from Jagiellonian University and in business linguistics from the Tischner European University, both in Kraków, Poland, and both with distinction. He also is an alumnus of the American Law Program of the Columbus School of Law of the Catholic University of America, and of the English Law and Legal Methods International Summer Programme of the University of Cambridge.