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UCLA Pacific Basin Law Journal

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PBLJ is the second oldest law journal at UCLA and focuses on a diverse range of legal and policy issues in the Pacific Rim, looking to both the Asia-Pacific and the Americas. In the past, PBLJ has featured articles on topics as varied as intellectual property regimes, climate change and migration in the Pacific, corporate governance, and affordable housing policy in China.

Volume 38, Issue 1, 2021

Issue cover

Articles

Confronting the Lies That Protect Racist Hate Speech: Towards Honest Hate Speech Laws in New Zealand and the United States

This Article provides a comparative critique of hate speech jurisprudence in New Zealand and the United States by building on insights from Critical Race Theory (CRT) scholars.  My main argument is that neither of these liberal democracies protect the right to freedom of expression/speech as they claim, but in fact dishonestly protect a right to “freedom of expression of racism” or “freedom of racist speech.”  They do this by telling lies that inflate the value of free expression/speech and diminish and dismiss the harms that hate speech inflicts on marginalized groups.  To move towards honest hate speech laws in both jurisdictions, I propose a communications strategy that seeks to reframe hate speech from a free speech issue to a public health issue.  This is in order to push for reforms that will enable the courts to better protect people of color from the physical, mental, psychological or spiritual harms of racist hate speech.

Carceral Strategy and the Social Structure in Maoist China

This Article explores the connection between the carceral strategy utilized by the Chinese government and the social structure in the Mao era.  From Mao’s view, thought reform and profit-seeking were the two primary goals of the Chinese socialist prison.  Yet, by placing the system of labor camps and post-release management into a broader context, this Article demonstrates that the system was designed to make inmates depend on the socialist settings through the measures of party-state apparatus, prisoner cards and dossiers, classification of prisoners, hard labor, and thought remolding.  Those measures had their counterparts in the general social structure in communist China, like work unit, household registration and political dossier.  In addition, the unique feature of punishment-profit nexus made the system of labor camps and post-release management crucial for the purposes of economic development and political control in Mao’s time.  In conclusion, the system of labor camps and post-release management was an integral part of the greater social control mechanism in Chinese society during Mao’s time.  It was designed and operated in a way to reform an ill population into qualified workers so as to fit socialist requirements and maintain social stability.

Surrogacy and Japan: A Case for Regulation

Within the last few decades, assistive reproductive technology (ART) has had high levels of usage, particularly artificial insemination (AI) and in vitro fertilization (IVF).  The advent of IVF opened a host of additional possibilities, including the recruitment of women who have no genetic link to the child to serve as surrogates.  Over the past several decades, the average age of a woman who has her first child in Japan has climbed to 30.7.[1] Couples have increasingly found themselves unable to bear children and have turned to IVF.  Yet Japan has no statutory provisions regulating surrogacy, and the Japanese Society of Obstetrics and Gynecology flatly bans the practice.  As a result, many infertile couples have gone abroad to arrange surrogacy.  But in 2007 the Supreme Court ruled that the legal mother in a surrogacy birth is the surrogate, even if a foreign court had ruled otherwise.  This case is translated in full in this Article, along with an exploration of the state of ART and surrogacy in Japan and potential routes for regulation.  This analysis is done mainly through the lens of comparison with the United States and the recent Child-Parent Securities Act (CPSA) in New York.

[1].       Number of Newborns in Japan Fell to Record Low While Population Dropped Faster Than Ever in 2018, The Japan Times (Jun. 7, 2019), https://www.japantimes.co.jp/news/2019/06/07/national/number-newborns-japan-fell-low-918397-2018-government-survey [https://perma.cc/M4WJ-TBJW].

GET-Rich or Keep Trying: Reimagining Tax Reform in the Federated States of Micronesia

Since 2005, the Federated States of Micronesia (FSM), nervous over the uncertain future of the Compact of Free Association and seeking to improve its fiscal self-sufficiency, has wasted time and resources on a pie-in-the-sky tax reform proposal with too many moving parts and too many stakeholders to satisfy.  A more practical path to tax reform must be found—and as the authors argue, Hawaii’s unique tax system should be used as a map forward.

The FSM and Hawaii each have broad-based consumption taxes—the gross revenues tax and the general excise tax, respectively.  Although these two taxes appear similar at first glance, Hawaii’s tax has developed sophisticated characteristics over the past eighty-five years.  Instead of attempting yet again to discard its gross revenues tax, the FSM should transform it.  Replicating and accelerating Hawaii’s eighty-five-year tax evolution could offer the FSM a much more practicable—and less politically daunting—shortcut to a modernized, efficient, and lucrative tax system.

Peace Powers: Could the President End the Korean War Without Congress?

The Korean War never actually ended.  Although largescale hostilities have been suspended for decades under an armistice agreement, a peace agreement was never signed, and there remains a tense posture in which the United States, North Korea, and South Korea continue to prepare themselves for resumed hostilities at any time.  The Trump administration indicated a willingness to enter into a peace agreement with North Korea to formally end the war and but did not follow through, and other prior American presidents had also failed to secure normalized relations with North Korea.  South Korean President Moon Jae-in continues to advocate fiercely for a formal peace agreement between the warring parties, and given the recent change of political leadership within the United States, the issue is sure to arise again.

But if a U.S. president were to one day succeed in concluding a binding international peace agreement to formally end the Korean War, what should be the role of Congress?  Just as the proper division of war powers between the executive and legislative branches of government are hotly contested, so too do the powers to end war and declare peace remain a subject of debate.  As a matter of policy, it may be preferable to utilize the most solemn procedure available under U.S. law, the Article II treaty process, for a peace agreement to end the Korean War.  Short of that, a congressional-executive agreement could also be used to signal that each of these branches of the American government are committed to forging a new relationship with North Korea and recognizing an end of the war.  Nonetheless, there are many reasons that a President may determine that it is more strategic, expedient, or otherwise preferable to act unilaterally.  For example, there may be complex political dynamics in Congress that threaten to slow, hamper, or outright impede peace efforts.  If that is the case, this Article argues that there is nothing in the text, case law, or past practice under the Constitution that would prohibit the President from ending the Korean War through a sole executive agreement.