Asian Law Journal - Vol. 5 Articles

ARTICLE: Foreword: Law In Living Color

Margaret M. Russell *

* Associate Professor of Law, Santa Clara University. A special thanks to Maggie Chon for her many collaborative strengths, the Asian Law Journal staff for their excellent and dedicated work; and to my family for their supportive company.

SUMMARY:

... When asked by the editors of the Asian Law Journal to serve as guest editors for a special symposium issue on race, law, and film, Professor Margaret Chon and I welcomed the opportunity for a number of reasons. ... A second common theme in examining race and law in popular film - and specifically in these symposium essays - is a recognition that racial subordination may be best understood not as a unitary phenomenon, but rather as a convergence of multiple identities, ideologies, and oppressions across categories of race, ethnicity, class, gender, and sexuality. ... The authors featured in this symposium - as well as others who write about race, law, and film - are deeply concerned about racial injustice and strongly committed to its eradication. ... By paring away and examining the layers of prejudice and group insularity confronted by the interracial couple at the center of the film's narrative, Banks is able to locate and dissect skillfully the racial and color hierarchy that accorded Asian Indians of the Mississippi Delta a subordinate but relatively privileged "middle position" on a societal ladder of which blacks constituted the bottom rung. ...

ARTICLE: Both Edges of the Margin: Blacks and Asians in Mississippi Masala, Barriers to Coalition Building

Taunya Lovell Banks *

* Jacob A. France Professor of Equality Jurisprudence, University of Maryland School of Law. The author thanks Muriel Morisey, Maxwell Chibundu, and Frank Wu for their suggestions and comments on earlier drafts of this Article.

SUMMARY:

... She observes that the experience of Asian Indian immigrants in Mira Nair's film parallels a much earlier Chinese immigrant experience in Mississippi, indicating a pattern of how the dominant power uses law to enforce insularity among and thereby control different groups in a pluralistic society. ... Unwilling to be consigned with Blacks to the bottom of America's racial hierarchy, Asian Indians, like other Asians, consciously occupied a middle position in this hierarchy. ... The Asian community's failure to renounce the middle position reinforces both this racial hierarchy and the idea that Blacks are consigned to the bottom of the hierarchy. ... Specifically, the "group insularity" of both the Asian and Black communities fosters misunderstanding and distrust. ... Here were the seeds of a racial coalition between Chinese and Blacks. ... As a result of this colonial history, Ugandan Blacks perceived the Asian Indian dominated economy in post-colonial Uganda as a perpetuation of the racial hierarchy created and maintained by the British. ... Director Nair, by focusing almost exclusively on the Asian Indian and Black communities in Mississippi, suggests that the really hard work is removing the barriers between communities of color. ... Group insularity within the Black and Asian Indian community also accounts for some of the negative reactions to the romance between Mina and Demetrius. ...

TEXT:

Asians often take the middle position between White privilege and Black subordination and therefore participate in what Professor Banks calls "simultaneous racism," where one racially subordinated group subordinates another. She observes that the experience of Asian Indian immigrants in Mira Nair's film parallels a much earlier Chinese immigrant experience in Mississippi, indicating a pattern of how the dominant power uses law to enforce insularity among and thereby control different groups in a pluralistic society. However, Banks argues that the mere existence of such legal constraints does not excuse the behavior of White appeasement or group insularity among both Asians and Blacks. Instead, she makes an appeal for engaging in the difficult task of coalition-building on political, economic, social and personal levels among minority groups.

"When races come together, as in the present age, it should not be merely the gathering of a crowd; there must be a bond of relation, or they will collide...."

- Rabindranath Tagore

"When spiders unite, they can tie up a lion."

- Ethiopian proverb

I. Introduction

In the 1870s, White land owners recruited poor laborers from Sze Yap or the Four Counties districts in China to work on plantations in the Mississippi Delta, marking the formal entry of Asians into Mississippi's black belt. The Chinese farm workers quickly became middle-class merchants, servicing Black Delta communities. Briefly, there was the possibility of a racial coalition between the Chinese immigrants and the native-born Black residents, but soon the legal and social structures prevailed, and this opportunity for coalition was lost.

Ultimately, the Mississippi Chinese came to represent an odd mixture of victim and oppressor, a phenomenon called simultaneous racism where one "racially" subordinated group simultaneously subordinates another racial group. Forced to exist at the margins of a society whose laws openly perpetuate an ideology of White supremacy, the Chinese in Mississippi were denied the rights and benefits granted Whites. Although classified by the dominant society as non-White, Asians were not Black, and they often capitalized on this legal and social distinction. Many also adopted the anti-Black attitudes of the dominant society to obtain better treatment by Whites. In this way the Mississippi Chinese community contributed to the racial subordination of Blacks in the Mississippi Delta.

In the past, formal legal barriers, such as Jim Crow laws, denied "non-White" groups the privileges that "Whiteness" conferred, while also providing a nexus for racial coalitions between Asians and Blacks. The experiences of Chinese people in Mississippi during the Jim Crow era illustrate this point.

Mira Nair's 1991 film, Mississippi Masala, portrays the entry of a second group of Asians - Asian Indians or South Asians - into the Mississippi Delta one hundred years after the entry of Chinese workers. Unlike the Chinese immigrants, Asian Indians in Mississippi Masala arrive in the Delta as educated, formerly middle class immigrants. Director Nair por trays the Asian Indian immigrant community, like the Chinese community before it, as consciously occupying a middle racial position between Blacks and Whites.

The film opens in 1972 as Jay, a Ugandan-born Asian Indian lawyer, is leaving Uganda along with other Indians, taking his wife, Kinnu, and daughter, Mina, from their comfortable upper-middle class home. The family leaves Uganda during the anti-Indian fervor encouraged by General Idi Amin. By the early 1990s, the film's setting, Jay and his family are settled in Mississippi after a brief stay in England. They come to the United States as working-class immigrants, living in a Mississippi Delta motel owned by a relative. Kinnu supports the family by operating a liquor store in a Black neighborhood, and Mina works as a maid in the motel. Jay, obsessed with returning to Uganda and reclaiming his property, writes petitions to the Ugandan government.

Mina, now in her twenties, meets Demetrius, a native-born Black man who runs a carpet cleaning business. A romance ensues. When the couple are discovered in a motel room, Jay, supported by his Asian Indian relatives and friends, forbids Mina to see Demetrius. The Asian Indian motel owners boycott Demetrius' business, and the White-owned bank recalls his loan. The film ends with Mina and Demetrius leaving Mississippi and their families for an uncertain future together.

Although movie critics bill the film as a "different" interracial romance, the romance between Demetrius, the Black small businessman, and Mina, the Asian Indian motel worker, is simply a device (perhaps an allegory) for exploring racial identity and coalition-building between communities of color in the United States. Their departure from Mississippi, a state that embodies the notion of White supremacy, suggests the possibility of racial coalition between Blacks and Asians.

Mira Nair's unflattering portrait of Asian Indians in the film does not necessarily reflect the behavior of the diverse Asian Indian community in the United States. However, this essay uses the film Mississippi Masala to explore the possibility and limitations of racial coalitions between Asians and Blacks in a post-Jim Crow society. I argue that in the film Asian Indians, like other Asian immigrants, entered a racialized legal system that refused to classify them as White. Unwilling to be consigned with Blacks to the bottom of America's racial hierarchy, Asian Indians, like other Asians, consciously occupied a middle position in this hierarchy. In order to attain and maintain this middle position between White and Black, Asian Indians, like other Asians, avoided aligning themselves with Blacks, and at times, consciously positioned themselves in opposition to Blacks.

I conclude that some within various Asian communities continue to capitalize on their middle group position, often making calculated and instrumentalist use of their position in the United States' racial hierarchy, usually at the expense of Blacks. The Asian community's failure to renounce the middle position reinforces both this racial hierarchy and the idea that Blacks are consigned to the bottom of the hierarchy. Although the film does not explicitly examine simultaneous racism by Blacks, I acknowledge its existence and briefly discuss this point at the end of the essay.

Because all non-White groups constantly try to improve their position in the racial hierarchy, native-born Blacks also resist coalescing with Asians. In fact, xenophobic native-born Blacks often united with White nativists to oppose social justice for Asians, whether native-born or immigrant, instead of joining forces to challenge the racial hierarchy that subordinates them. Asians and Blacks separately try to improve their position within the racial hierarchy - often at the expense of each other - by appeasing Whites.

Renunciation of simultaneous racism alone, however, will not foster racial coalitions between Asians and Blacks. Other barriers exist which make racial coalitions between Blacks and Asians problematic. Specifically, the "group insularity" of both the Asian and Black communities fosters misunderstanding and distrust. Group insularity results from a racial or ethnic group's hostility toward other physically distinct groups, and towards that group's actual and perceived cultural differences. This hostility is fueled by learned racial attitudes and stereotypes perpetuated by the dominant society. For native-born Blacks, group insularity includes a lack of knowledge about the history or experiences of other non-Whites in the United States. The parochialism that accompanies this group insularity prevents the social, economic, and political integration needed to attack the ideology of White supremacy that subjugates both groups. Mississippi Masala raises some of these points.

The first section of this essay discusses the circumstances which prevented the formation of a racial coalition between Chinese and Blacks in the Mississippi Delta during the first part of this century. Then, I briefly examine how Asian Indians came to occupy the middle racial position in the United States. Going back to the film, the second section of the essay explores Jay's search for identity and place in Mississippi Masala, looking first at why Asian Indians and Africans failed to coalesce in Uganda, and then at how Nair portrays the Asians Indians who settled in Mississippi.

The third section of the essay discusses whether any lessons can be drawn from Mira Nair's film about the possibility of coalition between Blacks and Asians in contemporary America. Specifically, I ask whether it is possible for communities of color to move beyond a preoccupation with appeasing Whites and focus instead on securing racial justice in the United States. In addition, I explore whether the group insularity that typically accompanies traditional racial and ethnic communities in the United States constitutes a barrier to coalition with other communities of color. I conclude that Blacks and Asians must move beyond group insularity, but not necessarily abandon cultural identity, to form effective, although limited, coalitions for racial justice. This is an extremely difficult, if impossible, step so long as each group constantly seeks to improve its position in the racial hierarchy by appeasing Whites.

ARTICLE: Dreaming in Black and White: Racial-Sexual Policing in The Birth of a Nation, The Cheat, and Who Killed Vincent Chin?

Robert S. Chang *

* Associate Professor, California Western School of Law. Visiting Associate Professor, Loyola Law School. I would like to thank Maggie Chon and Peggy Russell for inviting me to participate in this Symposium. Versions of this were presented at the 1996 Western Law Teachers of Color Conference, the UCSD Department of Literature Colloquium Series, the Santa Clara Legal Theory Workshop, and at McGeorge School of Law. I'd like to thank the participants for their comments. Thanks also to Keith Aoki, Adrienne Davis, Richard Delgado, Laura Gomez, Neil Gotanda, Todd Hughes, Lisa Ikemoto, Nancy Levit, Susan Kuo, Peter Kwan, Daria Roithmayr, and Jean Stefancic for their comments. Work on this project was supported by a publication award from California Western School of Law.

SUMMARY:

... This notion of race limits people's understanding and willingness to engage with the history and current state of Asian Americans in the United States. ... Inclusion of Asian Americans operates to denature - de-naturalize - the current paradigm. ... A. The Racial Compromise in Black and White ... B. A Different Sort of Racial Compromise ... All of us are paying for this racial compromise today. ... Some pay a greater price for this racial compromise than others. ... Further, the Asian man may be improperly consuming the sexual attention of a white woman, which, in part, he is able to do because he is doing well, economically, by displacing people like Ebens and Nitz from their jobs. ... In the film, the transgressive sexuality of an Asian man is presented as a threat to a white woman, and through her, the family that is America. ... As discussed earlier, Asian exclusion was very successful. ... The racial compromise of the earlier era remains in force. ... America negotiated its earlier national identity crisis through a racial compromise driven, in part, by notions of economic and sexual entitlement/anxiety. ...

TEXT:

Introduction

America dreams of race in black and white. By this, I mean that the current racial paradigm has become naturalized so that race in America is generally understood to mean black and white. This notion of race limits people's understanding and willingness to engage with the history and current state of Asian Americans in the United States. Instead of being included as participants in conversations on race, Asian Americans are seen as interlopers. Yet this status as interloper is precisely why Asian Americans are important in discussions of race. Our existence disrupts the comfortable binary of the black/white racial paradigm in which the black racial subject is produced by and through its opposition to the white racial subject, and vice versa. The presence of other racial bodies problematizes this construction of both black and white racial subjects. Inclusion of Asian Americans operates to denature - de-naturalize - the current paradigm.

But what would a racial paradigm look like that was not simply black and white? How do we expand our notion of race in America without resorting to simple platitudes, statements such as "Yellow is not black; yellow is not white." Even accounts that place yellow between black and white in the racial hierarchy have limited power to explain how the different races have mattered in different ways in history and how racial subordination has been effected in law.

Persons of Asian ancestry were juridically constructed as racially distinct from whites; in that sense, we exist as a racial "Other" to whites. However, this doesn't capture the sense in which persons of Asian ancestry were also constructed as a foreign "Other" to (white) Americans. Introducing this element of foreignness complicates the racial positioning of Asian Americans and reveals a suppressed, and usually unquestioned, national dimension in the way race is conceptualized. Including the axis of nation in examining race allows us to understand the treatment of Asian Americans, Blacks, Latina/os, Native Americans, and Whites as part of a larger national project.

A focal point in this national project is the family. Walter Benn Michaels identifies the family as an important component in the reconceptualization of collective national identity that began in the 1920s:

It was in terms of familial relations (as opposed, say, to economic relations or regional or even generational relations) that the new structures of identity were articulated. America, A Family Matter was the title of Charles W. Gould's nativist polemic of 1922. And, although Horace Kallen's Culture and Democracy in the United States (1924) was directed against nativism, Kallen shared Gould's model of national identity; according to him, the very idea of "nationality" was "familial in its essence."

In this Article, I examine two films, D.W. Griffith's The Birth of a Nation (1915) and Cecil B. DeMille's The Cheat (1915), that presaged the trend discussed by Michaels. In both films, family operates as a stand-in for both race and nation and offers a convenient way to represent the dangers posed by certain bodies of color who pose a threat to the (white) American family. These dangers necessitate racial-sexual policing, a disciplining of the transgressive sexuality of men of color and white women, in order to preserve the proper racial/national/familial order. I develop my discussion of Asian Americans and race/nation/family through a reading of these two fictional dramas, supplemented by the 1988 documentary, Christine Choy and Renee Tajima's Who Killed Vincent Chin?

ARTICLE: Cultural Colonization In the Hollywood Film: The Harlem Debates - Part 2

Frederick Dennis Greene *

* Assistant Professor of Law, University of Oregon School of Law; B.A., 1972, Columbia University; Ed.M., 1984, Harvard University; J.D., 1987, Yale Law School.

SUMMARY:

... While the focus is on the Black experience in Hollywood, comparisons are made to the portrayals of Asian Americans and the Hong Kong film industry. ... PETER: "Let's look at the phenomena of how the Asian community has been positioned by white writers as a model minority." ... In other words, the Asian-American community didn't dub itself a model minority. ... So in a sense, he was an Asian hero with uncanny detective skills, whose function was to travel the world, bearing white authority and solving white crimes for white people. ... I just think that there is power in the very idea of an Asian screen detective with Chan's skills, regardless of him being played by a white actor. ... PETER: "Dignified or not, he wasn't Asian. ... CYRIL: "Well, who is going to play Chan? Certainly not a white actor in Asian makeup. ... The very existence of the Hong Kong film industry gives Asian film artists a historically unique position among artists of color in the global media market. ... CYRIL: "Outside of the Hong Kong film industry, do you see any other prospects for people of color to break through the Hollywood cultural hegemony that you talk about?" ...

ARTICLE: Invention, Inversion and Intervention: The Oriental Woman in The World of Suzie Wong, M. Butterfly, and The Adventures of Priscilla, Queen of the Desert

Peter Kwan *

* Assistant Professor of Law, Santa Clara University School of Law. This Article has benefited from the valuable help and constructive comments of my friends Professors Robert Chang, Margaret Chon and Adrienne Davis. I dedicate this Article to my father.

SUMMARY:

... In many of these films, the category of the Oriental Woman is constructed through the white male gaze where, as Gina Marchetti describes, "Asian females are often depicted as sexually available to the white hero." ... Moreover, Suzie is not presented as the virginal, self-sacrificing Asian lotus blossom. ... The myth of the white knight circulates within a Western culture that has continuously defined itself against what it has identified as the nonwhite other from the Moor or the Jew of the medieval imagination to the black, Asian, or Hispanic of today. ... As the white knight, he is ipso facto morally virtuous. ... In the film version, the audience is made to feel that Lomax's decla ration to Suzie that she is his "first girl" is made out of the affection that comes from pity, thereby reinforcing the image of the white knight - the white protector - which, coincidentally, adds the extra fetishized appeal of pedophilia. ... He is a penis," the Asian man is defined by a striking absence down there. ... Certainly, Cynthia's accent and appearance mark her as Asian and foreign. ... Surprisingly, in Priscilla, Bob is presented as the victim of Asian female deceit. ...

TEXT:

Introduction

The figure of the Oriental Woman, and her relationship with the white man who becomes her lover is a theme repeatedly mined by Hollywood studios. In many of these films, the category of the Oriental Woman is constructed through the white male gaze where, as Gina Marchetti describes, "Asian females are often depicted as sexually available to the white hero." In contrast to the actual bodies of women from Asia, the Oriental Woman is a fictive creation, an invention of the western imagination deployed to justify sexual exploitation, dominance and not infrequently, violence to Asian women. The Oriental Woman is meek, shy, passive, childlike, innocent and na<um i>ve. She relies and is dependent on the white hero to satisfy her most basic needs and to perform the most basic tasks, including, of course, lessons on the proper uses and pronunciation of English. As Edward Said has written on Orientalists of the nineteenth century: "(Orientalism) viewed itself and its subject matter with sexist blinders. This is especially evident in the writing of travelers and novelists: women are usually the creatures of a male power-fantasy. They express unlimited sensuality, they are more or less stupid, and above all they are willing." Despite, or perhaps because of this, the white hero finds the Oriental Woman extremely sexually desirable. This racial-sexual fetish is often cast and recast in colonialist terms that reinforce the subjugation of the Oriental Woman and posit her as an object for western consumption and the satisfaction of western desires. The Oriental Woman is therefore available to satisfy desires that would normally otherwise be socially and morally unacceptable if acted upon the bodies of white women. The Oriental Woman, for example, normatively permits acting out such desires such as pedophilia and sexual aggression and sexual violence upon the bodies of Asian women.

Like law, filmic representations not only create but reflect social norms and meaning. Films are important contemporary cultural texts whose analyses provide a rich source for the understanding of various social phenomena. In this Article, I describe three filmic and literary instantiations of the Oriental Woman: The World of Suzie Wong, M. Butterfly, and The Adventures of Priscilla, Queen of the Desert. I employ these films as sites of visual culture on which to explore the (re)inventions and deployment of the Oriental Woman category. I show that the Oriental Woman is a category of fantasy used to support modes of subordination on Asian women. Moreover, this fantasy is fabricated out of multiple supporting matrixes that include racial, sexual, gendered and colonial subject formations. I examine the relationship between these formations within Oriental Woman identity, and examine this identity in terms of recent critical legal theories that have made important contributions to contemporary jurisprudential thought. These theories typically have challenged traditional liberal legal paradigms and explored the importance of different minority perspectives in an effort to understand the contributions of law to minority discourses and vice versa. Thus, for example, feminist jurisprudence, critical race theory and queer legal theory have each advanced and expanded our understanding of the impact of law on issues relating to personal identity and rights. Yet, as the names of those separate legal theory movements suggest, critical legal theory "movements" occasionally have been criticized (more often from within) for sectarianism, each for its failure to fully embrace the diversity within its ranks. Drawing upon my discussion of the Oriental Woman, I show how personal identity categories operate in a mutually supportive way, rather than with static and fixed boundaries. I have elsewhere described this notion as a "cosynthesis" of categories. A cosynthetic understanding of the subordinating praxis of categories both furthers our knowledge of how "stereotypes" work, and, as this Article shows, makes possible urgently needed ideological links between different strands of critical legal theory movements.

Thus, in Part I of this Article, I describe the way in which the Oriental Woman character in each of the films is constructed. I also show how the Oriental Woman reinscribes racial hierarchy and racial dominance. In Part II, I examine the racial fantasy the Oriental Woman creates and the role that fantasy plays in justifying violence on the bodies of Asian women as well as normalizing white sexual "deviance." Finally, in Part III, I examine the theoretical implications of these explorations into the Oriental Woman; in particular, I wish to investigate how those theoretical explorations may advance identity and post-intersectional theories that are currently being debated in outsider legal scholarship. In Part III, I also discuss more fully how my exploration into the Oriental Woman in these films support my theory of the cosynthetic nature of categories.

COMMENT: Mail Fantasy: Global Sexual Exploitation in the Mail-Order Bride Industry and Proposed Legal Solutions

Donna R. Lee *

* J.D., Columbia University School of Law, 1997; Fulbright Research Scholar in the Philippines, 1997-98. Cravath, Swaine & Moore (New York), June 1998 to present.

SUMMARY:

... Ms. Lee asserts that the trade in Asian mail-order brides is premised on the male consumer's racialized expectations of sexual and domestic labor services to be provided within the privacy of the home. ... Thai Asian Worldwide Ladies (TAWL), for instance, pictures a woman posing in a bikini surrounded by lush green flora. ... For men who are not content with just photographs, Pearls of the Orient offers videotapes of available women so that men can view them "in the privacy of your home and select the girl(s) you would like to correspond with. ... Australian men have also claimed that it is "cheaper to get an Asian wife than to get an Australian prostitute." ... An Asian husband from Hong Kong or Singapore was unacceptable. ... A. Asian Pacific Women's Prostitution in the 19[su'th'] Century United States ... Popular music and film continuously eroticize Asian women. ... The act of procuring an Asian Pacific mail-order bride reinforces the familiar racial hierarchy in which white is supreme, and allows the male consumer to believe that his bride, as with Asian Pacific prostitutes, exists for his pleasure. ...

TEXT:

Ms. Lee asserts that the trade in Asian mail-order brides is premised on the male consumer's racialized expectations of sexual and domestic labor services to be provided within the privacy of the home. The mail-order bride industry rests on the same foundation as the more visible trade in military prostitution and sex tourism - exploitation of the economic desperation of women in many Asian countries. Ms. Lee argues that an artificial shroud of legitimacy associated with marriage masks the exploitative nature of the mail-order bride business. She investigates the possibility that existing laws against prostitution and involuntary servitude can be applied to combat the industry's operations, concluding that anti-prostitution laws hold some promise.

"The Philippines' most valuable overseas export is the Filipina - those exotic, dark-eyed, raven-haired, English-speaking girls who, as virgins still at the age of 25 or beyond, marry men from all over the globe."

- Kenneth Morgan, War of the Sexes

Introduction

This Comment examines the international mail-order bride industry, which enables men in industrialized nations to procure wives from developing countries through agencies that specialize in marketing available women. Over the past two decades, the industry has steadily gained popularity as a vehicle for marriage, resulting in the migration of thousands of women to the United States. While mail-order brides hail from countries throughout the world, the discussion herein focuses on women from Asian Pacific countries, who constitute a significant portion of the market for mail-order brides.

The mail-order bride business promotes a form of sexual exploitation that resembles both prostitution and involuntary servitude. Nevertheless, while the law of this country seeks to eliminate prostitution and involuntary servitude, it does not prohibit the mail-order bride business, and, until recently, did not even impose any regulations on its operations. It may be possible, however, to utilize existing legal remedies to address this exploitative industry, and this Comment therefore takes the necessary preliminary step of examining what relationship mail-order bride marriages bear to prostitution and to involuntary servitude. Though both are explored here, I submit that laws aimed at combating prostitution provide a more appropriate starting point than those prohibiting involuntary servitude. The mail-order bride business rests on the same historical, social, and cultural institutions that have been and continue to be the genesis of prostitution. In fact, the mail-order bride industry is but one specific manifestation of the international prostitution of women and a direct outgrowth of that institution. While the mail-order bride business also possesses attributes of involuntary servitude, the dynamics of the industry more closely parallel those of prostitution.

Part I sets forth the external forces and motivations that lead male clients to seek mail-order brides and women to advertise themselves, the promotional techniques used to market the women and attract male consumers, and the transnational aspects of the business. Part II demonstrates the conceptual identity between prostitution - particularly transnational prostitution - and the mail-order bride business by examining several analogous elements of the two institutions. The close alliance between the mail-order bride business and prostitution becomes more apparent in light of the history of prostitution of Asian Pacific women in this country during the nineteenth century, as well as the modern-day commodification of these women through military prostitution and sex tourism in Asian Pacific countries.

Part III examines the concept of mail-order brides as victims of involuntary servitude. This Comment maintains that several aspects of a mail-order bride's experience could be construed as involuntary servitude. Under judicially-defined standards of involuntary servitude, however, mail-order bride marriages cross the line into involuntary servitude only in narrowly-prescribed circumstances. Finally, based on the conclusion that the institution of mail-order bride marriage is more appropriately analogized to prostitution than to slavery, Part IV offers recommendations for employing existing legal instruments to combat the mail-order bride industry.

Regardless of how one characterizes the mail-order bride business, the fact remains that women who decide to enter into mail-order bride marriages are generally seeking to escape adverse home-country socioeconomic circumstances through one of the few avenues open to them. After settling in a new country, language barriers, unfamiliarity with local social and legal institutions, and the husband's power to dissolve the marriage (and hence the woman's basis for residency), allow the husband to exercise significant control over the newly-arrived bride's daily life. In addition, men who utilize mail-order bride services often possess inaccurate expectations of their prospective partners; such expectations are based in part on mail-order bride agencies' racialized and gendered representations of Asian Pacific women, as well as enduring Western stereotypes of such women. Thus, for Asian Pacific mail-order brides in particular a lack of viable alternatives in the home country works together with an inherently unequal power dynamic to create a situation rife with sexually exploitative potential.

In recognizing the structural factors that create conditions for sexual exploitation, I do not wish to suggest that Asian Pacific women are the wholly passive victims of a larger process of racial and sexual subjugation, nor do I deny their potential capacity to defeat such exploitation. Asian Pacific women, both in the United States and abroad, through their individual daily lives and collective efforts, continuously demonstrate the ability to deal effectively with their life circumstances. It would likewise be improper to portray all cross-cultural or transnational marriages as inherently exploitative. Rather, it is the organized business of capitalizing on women's disadvantaged positions in pursuit of profit and for the benefit of male consumers, and the subsequent use of U.S. immigration law in such a way as to lead to exploitation, that render mail-order bride marriages objectionable. Although it is possible for individuals in a mail-order bride marriage to overcome this potential for exploitation, all too often, such marriages come to strongly resemble the international trafficking of women, their prostitution, and their involuntary servitude.

COMMENT: Excluded, Segregated and Forgotten: A Historical View of the Discrimination of Chinese Americans in Public Schools

Joyce Kuo *

* J.D. expected 1999, Stanford Law School. I would like to acknowledge Gordon Chang, Gerald Gunther, Lawrence Friedman, and Mark Kelman for their advice and suggestions in the initial stages of this research. In addition, I would like to personally thank Amy Korytowski and Peter Beyersdorf for their assistance, understanding and support throughout the project.

SUMMARY:

... Yet, in 1971, Justice William Douglas revealed that "Brown v. Board of Education was not written for Blacks alone...." Instead the Court explained that the segregation of Chinese Americans from the California public school system "was the classic case of de jure segregation involved in Brown v. Board of Education ...." ... Unable to ignore the increasing persistence of the Chinese community, the San Francisco School Board was forced to address the question of whether to admit the Chinese American students into the public school system. ... Although the earliest laws establishing the public school system in California had ignored the explicit mention of race, the intent of the legislature to exclude non-whites from the system was evident in a 1855 school law which explicitly referred to "white children." ... Eleven years after the Ward v. Flood decision was decided, the California Supreme Court explicitly held that the school board must admit Chinese American students into the public school system. ... Alerted to the growing number of Japanese students attending all-white schools and the increasing pressure to alleviate the fear of yet another Asian group in the all-white schools, the San Francisco School Board converted the Chinese Primary School into the Oriental Public School in 1906 to include the Japanese students. ...

TEXT:

I. Introduction

Brown v. Board of Education is commonly considered to be one of the most critical decisions handed down by the United States Supreme Court. It has been particularly crucial for the Black American community who directly benefited from the decision to desegregate the schools.

Yet, in 1971, Justice William Douglas revealed that "Brown v. Board of Education was not written for Blacks alone...." Instead the Court explained that the segregation of Chinese Americans from the California public school system "was the classic case of de jure segregation involved in Brown v. Board of Education ...."

Despite the fact that Chinese Americans have both the longest presence in this country and the longest history of discrimination of any Asian group, the history of discrimination against Chinese Americans in the public schools is often forgotten. In addition, the Chinese American community's efforts to challenge the system have also been overlooked. Explained one scholar, "Most people know about Brown v. Board of Education and the cases leading up to it, in which African Americans challenged segregated school systems, but few people know that Asian Americans also challenged the legality of segregated schools." As a result, discussions about discrimination in education often perpetuate the false perception that only Black Americans were affected by the "Separate but Equal" doctrine.

To dispel the perception that Chinese Americans were not victims of discrimination in public schools, this Comment discusses the discrimination faced by Chinese Americans in the public school system from 1850 to 1930. Since the largest concentration of Chinese Americans lived in San Francisco, California, during the late 1800s, much of the discrimination occurred in this city. Historical research has therefore concentrated on the San Francisco School Board's and the California state legislature's efforts to exclude and then segregate Chinese Americans. Thus, this Comment will focus on the impact of the discriminatory practices and the local efforts by the Chinese American community to surmount these barriers to public school education in San Francisco.

This Comment is divided into five parts. The first part provides a historical framework for examining the discrimination against Chinese Americans in the public schools. This historical context is helpful because it reveals the prevalence of the resentment towards the Chinese living in the U.S. during the late 1800s and early 1900s. Although this is only a cursory discussion, this part indicates that the resentment created a political, economic and social environment which facilitated the passage of exclusion and segregation laws against Chinese Americans.

The second part discusses the evolution of the San Francisco School Board's changing position on Chinese Americans in public schools. Initially excluding Chinese Americans from attending public schools, the School Board fluctuated several times in its attitude towards these students - first excluding them, then admitting them into a separate school, then excluding them again - until the School Board settled on a segregated system. At the same time, the Chinese American community was divided in how to react to the exclusion and segregation policies, with one group opting to find alternative educational resources and the other group struggling to change the system. The third part of this Comment discusses this latter group's attempts to appeal to the United States Constitution in order to reverse the discriminatory policies of the state legislatures and school boards. Their lack of success in these cases effectively closed off the option of using the legal system to redress their wrongs. The other option closed off to them - using political power and influence to change the laws - is discussed in the fourth part. Whereas Japanese Americans were able to successfully overcome the segregation barrier by employing their political power, Chinese Americans were unable to garner similar support and influence to assist them. The fifth and final part of this discussion does, however, indicate that the Chinese Americans in San Francisco were able to break down the policy of segregation gradually by pursuing case-by-case exceptions, by establishing their interest in public school education through their sheer numbers, and by finally gaining enough leverage to persuade the School Board to open up the public school system.

COMMENT: Demystifying the Asian American Neo-Conservative: A Strange and New Political Animal?

Anthony S. Wang *

* J.D. 1998, Georgetown University Law Center. This Comment was originally prepared for a seminar on Asian American Legal Ideology at Georgetown University in the spring of 1997. I would like to thank Professor Mari Matsuda for her helpful comments and support during the preparation of this Comment.

SUMMARY:

... In his essay "The Four Prisons' and the Movements of Liberation, Professor Glenn Omatsu characterizes Asian American neo-conservatives as "strange and new political animals," and presents us as a new "challenge" to the issues affecting the Asian American community. ... But given the tremendous progress that has been made in only the past three decades, can we honestly say that white America will always be racist towards Asian Americans and other people of color, or that people of color will forever be subordinated, oppressed, or otherwise excluded from mainstream America? Or is there a danger that a declaration of the permanence of racism in America represents a self-fulfilling prophecy? In his essay on Asian American Legal Scholarship, Professor Chang states: ... What is the so-called "principled" position that Asian Americans ought to take? In a speech given by Professor Frank Wu of Howard University last summer to students participating in the Conference on Asian Pacific American Leadership, he asked students to ignore their own self-interest and take a "principled" look at affirmative action. ...

TEXT:

Asian American neo-conservatives are the product of the 1960s Asian American movement, yet they have diverged in principle from its modern-day progressive flag-bearers. This divergence, Mr. Wang observes, has led to the exclusion of neo-conservatives from the debate over the political direction of Asian Americans. Mr. Wang seeks to "de-mystify" Asian American neo-conservatives, using himself as an example, by laying out the origins and parameters of their values and beliefs. Arguing for recognition of the diversity of values within the Asian American community, Mr. Wang calls on progressive Asian Americans to engage in a constructive dialogue with their neo-conservative counterparts.

I. INTRODUCTION

A. Introducing an Asian American Neo-conservative

I am a strange and new political animal - I am an Asian American neo-conservative. I am a child of post-1965 immigrant parents who came from Taiwan to America. I am an intercultural baby who was born after the Civil Rights Movement. I am a child raised in Washington, D.C., during twelve years of Republican administrations, and a former Eisenhower intern at the Republican National Committee. I am a UC Berkeley graduate in economics, but also a student deeply interested in Asian American studies, East Asian studies, and in particular, Chinese language, culture and history. Today, I am a third-year law student at Georgetown University Law Center finally preparing to enter a big law firm and begin work for the first time in my life. Finally, though I have seen the effects of racism, oppression, and anti-Asian sentiment in America, I have generally been sheltered from its pernicious effects because of my parents' hard work and relative good fortune.

B. Omatsu's Attempt to Define Asian American Neo-Conservatives

In his essay "The Four Prisons' and the Movements of Liberation, Professor Glenn Omatsu characterizes Asian American neo-conservatives as "strange and new political animals," and presents us as a new "challenge" to the issues affecting the Asian American community. We are seen as a "challenge" because of our disagreement with certain aspects of the ideology and progressive tenets of the Asian American movement. After briefly describing neo-conservative beliefs, Omatsu explains why neo-conservatism is misguided. Despite its rising acceptance, neo-conservatism is viewed as harmful to the interests of the Asian American community, and in particular, harmful to disenfranchised members of the community. Accordingly, Omatsu believes that progressive ideology is more appropriate for the needs of the Asian American community and also more representative of the true thinking of the greater community. Essentially, his characterization of Asian American neo-conservatives as "strange and new political animals" implicitly suggests a notion of "false consciousness."

In his discussion, Omatsu provides a long list of reasons why neo-conservatives, who did not seem to exist 25 years ago, have materialized today. He correctly describes some of the social, economic, and political conditions that have contributed to our emergence and recognizes the increasing prominence and role that neo-conservatives play in confronting issues facing the Asian American community. Although he views us as a "new challenge" to the traditional, progressive approach of the Asian American movement, he rightfully acknowledges that Asian American neo-conservatives "bring a vibrancy to community issues by contributing a different viewpoint."

Omatsu intends to shed light on a group he believes to be an anomaly, a contradiction, and a challenge. In describing who Asian American neo-conservatives are, and how and why we allegedly think the way we do, he implicitly suggests why we are wrong. While Omatsu has presented an important discussion, it is incomplete at best, and at times, factually incorrect. We may be relatively new, but what makes us so strange? Are we, as Omatsu states, "essentially elitists"who "have nothing to offer" to disenfranchised members of the community? As I hope to show in my discussion, our neo-conservative thinking is not necessarily strange, but rather is based on what we interpret as being right - given our principles and personal experiences. Our disagreement with traditional civil rights ideology and emerging critical race theory results from a different reaction to and understanding of the events affecting the Asian American community, the greater minority community, and society at large. Like our intellectual counterparts from the Left, we share the same goal of creating a better and more just society for all people. However, distinguishing ourselves from Asian American progressives, we choose to critically question the future path of our increasingly complex and multiracial America from a fundamentally different set of beliefs.

C. My Intentions in Writing This Comment

Through this Comment, I hope to demystify the so-called Asian American neo-conservative experience, so as to clarify our position and contribute to the complex debate on issues confronting the Asian American community and America as a whole. First, I hope to show through personal experience how I have become a neo-conservative and briefly describe some beliefs that may distinguish my neo-conservative ideology from progressive ideology. Second, and more importantly, I hope to show that exploring the diversity of experiences and wide-ranging viewpoints on issues facing the Asian American community can be a source of strength, rather than the "challenge" that Professor Omatsu envisions. I believe that the Asian American community can have solidarity without agreeing on all issues, and that understanding and appreciating our ideological differences, as well as our shared experiences, is essential to the future of Asian Americans and society as a whole.

Section II of this Comment describes who I am, and implicitly, how and why I came to view myself as a neo-conservative. Section III briefly highlights some of my neo-conservative beliefs, though a detailed discussion of the various issues that I present in this section is beyond the scope of this Comment. Section IV explores the sentiment of the progressive Asian American movement towards neo-conservatism, and its stifling effect on debate surrounding complex race relations. I advocate an open debate within the framework of Asian American legal scholarship that includes all the different viewpoints existing in the Asian American community - including the neo-conservative viewpoint.

COMMENT: Ho'Olahui: The Rebirth of A Nation

Taryn Ranae Tomasa *

* 1998 graduate of William S. Richardson School of Law, University of Hawai'i.

SUMMARY:

... She argues that the K<mac a>naka Maoli should use the international law of decolonialization and indigenous people's rights to have Hawai'i reclassified as non-self-governing territories that will enable them to exercise self-determination. ... In recent years, self-determination has been conceptualized broadly, both in the content of the doctrine and the identification of beneficiaries, with the international community providing structure to ensure a peaceful and graduated path to the desired form of political expression. ... Additionally, the rights of indigenous people will be examined as a potential route for the K<mac a>naka Maoli towards self-determination. ... Additionally, the unique rights of indigenous people provide an alternative path for the K<mac a>naka Maoli to achieve self-determination. ... The rights of indigenous people in their motherland have gained extraordinary legal recognition throughout the world. ... This language has been used by the U.N. Human Rights Committee and by the Inter-American Commission on Human Rights to successfully enforce the rights of indigenous people. ... c. Draft Declaration on the Rights of Indigenous People ... Unlike Convention No. 169, the Draft Declaration on the Rights of Indigenous People proposes extensive expansion of the rights of indigenous people. ... Now the international community appears ready to recognize the right of indigenous people to self-determination, along with everything it entails. ...

TEXT:

The right to self-determination is a right recognized in the United Nations Charter and by the international community. Yet, as Ms. Tomasa observes, the indigenous K<mac a>naka Maoli people of Hawai'i have been denied this right by a history and the continuing practice of illegitmate political and economic exploitation by the United States. She argues that the K<mac a>naka Maoli should use the international law of decolonialization and indigenous people's rights to have Hawai'i reclassified as non-self-governing territories that will enable them to exercise self-determination. Ms. Tomasa looks to other Pacific territories to provide the K<mac a>naka Maoli with the framework to successfully complete the process of decolonization.

Self-determination is a name for a social phenomenon which, like all social phenomena, contains the past still active within it, and which, like all social phenomena, also contains within it possible futures which are ours to choose.

Philip Allott

A. Introduction

In 1996, the state of Hawai'i used bulldozers to forcibly remove indigenous Hawaiians from M<mac a>kua Beach. Hawaiian homes were burned to the ground, personal belongings confiscated and those who outwardly opposed were jailed as squatters. In 1995, a scuffle broke out between unarmed Native Hawaiians and armed federal agents at a native burial site in Sunset Beach, O'ahu. No arrests were made but one Hawaiian was injured. In 1993, thirty-five Hawaiians were arrested for trespassing while protesting the 100[su'th'] Anniversary of the overthrow of the Hawaiian monarchy. Charges were later dropped, but only after massive media coverage. In all three instances, Native Hawaiians were without legal remedies under either state or federal law in their struggle for self-determination.

Self-determination is broadly described as "the expression of will of a community on its political status in relation to other communities or on its own internal political organization [sic]." Importantly for Hawaiians, the international community has recognized the right to self-determination as a fundamental principle since the 1940s. Self-determination was placed in the United Nations Charter as the foundation for universal respect and peace. Up until recent decades, however, the application of self-determination as both a political concept and a legal right has been plagued by "theoretical confusion and political misuse." Fortunately, self-determination evolved and took shape over the decades, solidifying into the legal right of people to reject colonial and analogous subjugation.

In recent years, self-determination has been conceptualized broadly, both in the content of the doctrine and the identification of beneficiaries, with the international community providing structure to ensure a peaceful and graduated path to the desired form of political expression. Presently, the right to self-determination includes the rights to independence, to create a new state, to reject external coercion, to overthrow an existing regime, and to obtain special protection within an existing state. These rights of self-determination are for the benefit of all people.

Notwithstanding the recognition the international community has given to the right of self-determination, the U.S. continues to resist decolonization efforts in the Pacific, especially with respect to its own conquests. Resistance is the result of tension between individualists and collective application of self-determination. Countries that have traditionally colonized, like the U.S. and France, define self-determination as an individual's right to choose a status and make meaningful choices as normal citizens of the colonizing state. This would result in both native and non-native individuals exercising equally-held political liberties. Subjugated people, especially indigenous groups, advocate for a collective application of self-determination which is subjectively defined, similar to jus cogens, which could prevent imposition of oppressive laws by the colonizer. Through the application of collective self-determination and U.N. intervention, many people have become empowered to exercise their right to self-determination; decolonization is finally becoming a reality in the Pacific.

The Native Hawaiians or K<mac a>naka Maoli, along with other indigenous Pacific people in settled states, face double opposition against subjugation. Generally, the greater the success of the invading society, the greater the deprivation of the invaded. This does not mean that indigenous people are entitled to less redress than traditionally colonized peoples; rather, the indigenous experience involves a greater loss as well as greater entanglement within the settler's society. As a result, indigenous people - as distinguished from minorities within a state - are entitled to specific redress for their exceptional and unrivaled losses of independence, culture, and a distinct nationality.

The unique position of indigenous people is especially apparent in Hawai'i. In the case of the K<mac a>naka Maoli, the Apology Resolution illustrates the double barrier against self-determination. Although the U.S. recognized the continuing detrimental effects of U.S. colonization in Hawai'i, the Apology Resolution failed to specify remedies for the territory and the K<mac a>naka Maoli. Instead, the Apology Resolution included a disclaimer leaving a gap of specific measures or remedies that would provide a "proper foundation for reconciliation." In spite of the stagnant position of the U.S., however, Hawai'i and the K<mac a>naka Maoli have relief. Due to the international status of self-determination, the eventual reversion of Hawai'i and the K<mac a>naka Maoli to their former independent status is neither as distant nor as illusory as it has been in the past.

From the U.N.'s inception, it has pledged itself to the principle of self-determination and the equal rights of peoples. Under this principle, the U.N. has provided for decolonization as a remedy for the destruction and devastation caused by colonialism. This remedy is applicable where an entity which has been recognized as a non-self-governing territory elects the status it desires: independence, free association on the basis of equality, integration, or any other status freely determined by the people. If implemented properly, this process provides a viable means through which the K<mac a>naka Maoli may exercise their right to self-determination.

The international community has also developed and accepted binding norms relating to the right to self-determination for indigenous peoples. Declarations, resolutions, and treaties have established international standards by which all people are able to fully exercise their right to self-determination. Under these norms, the unique position of indigenous people is recognized and given standing. These internationally recognized rights provide an alternative method through which indigenous people, like the K<mac a>naka Maoli, may fully realize their right to self-determination.

This Comment will discuss the legal foundation and application of the right to self-determination within the context of international law. Hawai'i will serve as a case study illustrating the two methods for actualizing self-determination: (1) the process of decolonization, and (2) indigenous peoples' rights. The process of decolonization will be addressed as both a remedial process and a procedure that is questionable as applied to the K<mac a>naka Maoli. Additionally, the rights of indigenous people will be examined as a potential route for the K<mac a>naka Maoli towards self-determination.

Finally, the Comment will discuss and compare similar indigenous Pacific peoples' experiences with the process of decolonization, as applicable to Hawai'i and the K<mac a>naka Maoli. Based upon this examination, it may be desirable for the K<mac a>naka Maoli to choose decolonization procedures that have been successful with other Pacific indigenous people and to advocate for their use in Hawai'i's struggle for self-determination. These case studies also illustrate the potential legal ramifications of self-determination and independence in Hawai'i.

COMMENT: To Steal a Book Is No Longer Such an Elegant Offense: The Impact of Recent Changes in Taiwanese Copyright Law

Nelson C. Lu *

* J.D. 1997, Boalt Hall School of Law; currently in-house counsel to NetUSA, Mountain View, California. While there are many people who have contributed greatly to my education, these are the people that I particularly wish to thank: Professor Marina Hsieh, who is an excellent teacher, for inspiring me greatly, and for always putting her students first; Professor Bob Berring, for his great suggestions and his sense of humor throughout the entire process; Mr. Les Johnson, my high school Latin teacher, for having taught me so much as a student and a person; and my parents, for their support (both emotional and financial) throughout the years I spent at Boalt. The title of this Comment refers to William P. Alford's work, To Steal a Book Is an Elegant Offense: Intellectual Property Law in Chinese Civilization, which I found to be very helpful in my research.

SUMMARY:

... Initially, the Taiwanese registration requirement appears to present little problem for an American copyright owner. ... In addition, an initial failure to register does not bar future protection in either country; the copyright owner therefore does not need to worry about a late registration negating her rights. ... A Taiwanese motion picture, on the other hand, may be considered a joint work owned by all persons who made a significant contribution to the form and content of the motion picture. ... The differing lengths of copyright protection may also create a trap for an American copyright owner. ... Therefore, young scholars seeking official appointments were encouraged to copy not only the content of classic works, but also to adopt the exact interpretation previously approved by official ideologists. ... The Taiwanese Copyright Code also gives a copyright owner the exclusive right to lease out her copyrighted works, consistent with European standards. ... The copyright owner may request for the destruction or any other necessary actions to prevent the use of such infringing items. ... (3) the importation of a reproduction unauthorized by the copyright owner;(4) the importation of an original unauthorized by the copyright owner; ...

TEXT:

In 1992-93, Taiwan revised its copyright laws in an attempt to closer approximate the rights given to the owners of copyrighted works in the United States. In the face of the difficulty of penetrating the Taiwanese judiciary and potential for unpredictability regarding the rights of such owners, Mr. Lu probes the ways in which Taiwanese copyright laws differ from those in the United States and which may burden those seeking copyright protection. He also traces the cultural and historical impediments to more rigorous intellectual property protections in Taiwan but notes the current incentives and evidence of Taiwanese efforts to improve such protections, as well as outlining the rights unique to the Taiwanese code.

Introduction

As Taiwan's importance as a trading partner for the United States increases, so does the significance of Taiwanese intellectual property law in general, and copyright law in particular. Taiwan is currently the 8[su'th'] largest trading partner of the United States, with $ 48.2 billion worth of goods traded between the countries in 1995. The United States continues to have a large trade deficit with Taiwan, and Taiwanese businesses have been accused of serious infringements of American intellectual property. As a result, the United States has continually pressured Taiwan both to allow more free entry of American intellectual property and to ensure the protection of intellectual property from Taiwanese infringers. Other countries, including members of the European Union and Japan, have also pressed for the modernization of the Taiwanese copyright scheme in order to protect their copyright owners.

In response to international pressure and the demand from Taiwan's own copyright owners, the Taiwanese Legislative Yuan enacted extensive revisions to Taiwan's Copyright Code in late 1992 and early 1993, with the goal of implementing a system which approximates the copyright protection schemes available in Europe and the United States. Due to these changes, new types of works such as computer programs and audio works are protected; the duration of copyright protection has been significantly lengthened; copyright owners have increased property rights and moral rights in their works; and the enforcement scheme has stiffer penalties for copyright infringers.

As the predominant exporter of intellectual property in the world, the United States should consider profitable exploitation of intellectual property an important tool to alleviate the trade deficit with Taiwan. In particular, since American companies dominate the computer software market, with a near monopoly on operating system software, and have a very strong presence in the music and motion picture industries, easier commercial exploitation of those works can provide great economic benefits to those companies and to the United States as a whole. It is vital for American copyright owners who might consider exploiting their works in Taiwan to understand the impact that the 1992-93 amendments have had on the substantive rights of copyright owners in Taiwan.

Unfortunately, discovering the effect that the 1992-93 legislative amendments have had on Taiwanese court decisions is a difficult, if not impossible, task. Taiwan is a civil law state, with a legal system that operates very differently from British or American common law. Court verdicts are not a part of the public record, and court opinions are generally available only to the parties in dispute. There is no official case reporter. In addition, precedents have a diminished persuasive value and almost no binding effect on the courts. Research on Taiwanese court cases thus tends to depend largely on insider knowledge, word of mouth, and news reports about significant cases. In interpreting Taiwanese law, then, the first and most basic step is to look at the plain language of the statute and at highly publicized cases. Such cases may not give a full picture or have complete predictive power on how the courts would generally react to a given copyright issue, but they should still provide insight into how the Taiwanese copyright statutes operate.

Given these difficulties, this Comment is not meant to serve as a guide to the application of settled Taiwanese copyright law. Rather, the goal is to explain the origins of the main differences between the copyright laws of Taiwan and the United States and to explore how these differences may operate in practice. It seeks additionally to explain how such differences may negatively affect the rights of the owners of copyrighted works who seek to protect their work in both the United States and Taiwan.

In Section I, I will outline the substantial differences between current Taiwanese and American copyright law, and note the practical impacts they may have on the rights of copyright owners in the two countries. Many of the differences significantly reduce the rights of American copyright owners in Taiwan when compared to the rights they enjoy in the United States. Others create additional burdensome requirements that the copyright owners need to satisfy before they can receive copyright protection in Taiwan.

Moreover, in Section II, I will show how the cultural heritage and the attitudes of Taiwanese society may continue to pose enforcement problems for owners of copyrighted works. Both the Taiwanese government and the population at large have made a conscious effort to align themselves with Europe and North America in many areas of law, including copyright. However, Taiwanese culture still has its own ingrained notions about authorship, ownership, and the concept of intellectual property in general. I submit that this stems from traditional Chinese conceptions of intellectual property. I also examine the way in which recent Taiwanese history, particularly the diplomatic isolation that started after the Chinese civil war and continues to this day, has contributed to Taiwan's reputation as a nation filled with copyright infringers.

In Section III, however, I will show that Taiwan is making a good faith effort at transforming its own concept of intellectual property rights, despite continuing enforcement problems. With Taiwan's recent democratic reforms and the development of a substantial volume of home-grown intellectual property, the situation is improving for copyright owners. In fact, authors may enjoy certain rights under Taiwanese law that they would not enjoy in the United States. As a result, I conclude that, wherever practical, American copyright owners who are considering exploiting their works in Taiwan should seek to obtain copyright protection in both countries.