The Volokh Conspiracy

I am a fan of Goldman Sachs.  It is one of the few individual stocks I own, running against all my standard corporate finance professor ‘buy index funds!!’ instincts.  Although we have had a surfeit of bankers and a surfeit of talent in financial engineering rather than, say, robotics, it is very scary to see the “silver linings” analyses talking about how it is such a good thing that smart Harvard or MIT students will no longer go to Wall Street, but will instead enrich elementary education or nursing or mountain-guiding.  While they might not be efficiently deployed in finance, it is a mistake to rejoice that the credit crash, deficit, tax rates, and other disincentives to innovation through risk-taking will push, through sheer lack of opportunity, smart people into things that do not take full advantage of their talents to the ultimate benefit of everyone.  I do a lot of development finance in the developing world, and the misallocation of talent simply from inability to supply opportunity is heartbreaking and worse.

The work of allocating capital in the capital markets, if not precisely God’s work, is so crucially important to men and women on earth that there is something wrong with these days having to defend it.  The little pieces of paper are vastly more efficient to steering rivers and seas of capital to and among enterprises — little gates and sluices in which small movements on paper can create immense movements in real life — than trying to do it by, what exactly?  Physical occupation of the premises as the sign of ownership?  Holding of hostages as collateral for a loan?  So I am untroubled by Goldman bankers getting rich, provided that their services serve efficient allocation; the problem is rules of a game that reward many wrong things and turn investment banking into a combination of crony capitalism and moral hazard.  Goldman’s current bonus pool is in large part a transfer, via yet more subsidized risk, from taxpayers to the firm; I trust in God and Blankfein that a goodly share of the booty will eventually wend to we shareholders.  But booty it is.

The problem here is not, and never has been, finding yet another little political fix to stick on top of the existing set of mis-allocation rules.  A “political offensiveness” tax, perhaps, under the socialist-sounding name of ‘excess profits’ or the capitalist-sounding name of ‘clawback’?  It’s neither, or both, of course.  The fixes-on-fixes eventually become flow-throughs to politicians like Chris Dodd; they permanently shift capital allocation into political allocation; and above all they don’t efficiently allocate capital.  Unless of course you’re Senator Dodd.  The answer has to lie at creating level playing fields at the base level, so that risk and return correlate for private parties, and they don’t have to apologize to anyone for the risks or the returns or the losses.

This is why Goldman Sachs’s cynical and tone-deaf small business program should serve as a wake up call for what business our capital allocators seem to think they are in.  At $500 million, the amount is paltry — 2.5% of the Goldman compensation pool or that ballpark.  And it does not even go to small business as such.  As the Wall Street Journal reports this morning (Deals and Deal Makers, Mike Specter, C5, November 19, 2009, I’ll post a link later), none of the small businesses emailing and telephoning in desperation for financing will “receive a check from Goldman Sachs.”  Instead:

“Goldman will spend $200 million on education and training programs, while funneling $300 million to so-called community-development financial institutions which largely serve historically disadvantaged communities that have had trouble accessing capital.“

One does not have to be a populist of the right or left to sniff that this is a ham-fisted PR program backed by miniscule funding.  Nor is this simply (as the quite interesting FT feature today on Goldman suggested) an ordinary case of Goldman corporate charity, of which it traditionally has done a great deal.  If it were, it would be much less problematic.

The much more important point is not what charity means — it is what high level business and finance have come to mean, when Goldman Sachs urgently decides that it needs to ”give back“ a sliver of what the taxpayers gave by giving it to ... community organizing.  It’s not corporate charity; it is protection money, clumsily done because unlike, say, Fannie and Freddie, Goldman is not used to doing it.  The message is that the future of the economy lies in crony capitalism and tending to the government relationships that happen, in this administration, to be community development institutions.  Even if the GSEs, Fannie and Freddie, showed what a splendid business model could be had tending to the care and feeding of Congress, its embrace by supposedly non-GSE Goldman Sachs shows us the way.  Apparently it will be a very efficient political capital market indeed.

(PS.  Note to journalists ... might any of the community-development institutions turn out to have ACORN ties?  I have zero idea whether this might be so.  Given the long-standing relationship of ACORN to the banking world via precisely these kinds of institutions, however, one should at least wonder.  And I at least would be curious to know whether Goldman thought vetting for this was a consideration.  Would Goldman consider this a bug or a feature in dealing with the current powers that be?)

One small nugget I took away from the (absolutely terrific) Stanford Law School robotics panel last week was a much better appreciation of how robotics will interact with advanced societies aging — elder-care, health care for the old and infirm, and so on.  Japan leads the way.

Paul Saffo (Stanford professor, futurist, and technology journalist, and very smart guy) remarked that the last ten years had seen an important technological shift, crucial to robotics, in the development of cheap sensor devices.  Sensor devices that could harness the computational power of the chip and make it possible to interface with the real world and, combined with improvements in elements of motion and locomotion, gives the world genuine robots.  It is movement, sensing, and computational power in combination that makes it possible for robots to do things, and do things for us.

That leads to the age of robotics, and — depending in part on what happens to R&D budgets in health care — the care of the elderly is one natural area of application, as well as a source of revenue to fund the industry.  More, faster please, as Glenn Reynolds might say.  Saffo also remarked that in a certain way, old people coming to depend on robots to help and do things for them as the fulfilment of “I have always depended on the kindness of strangers” — robotic strangers, in this case.

I added, and think it more important in setting out future technology trends here than one might initially figure, that a driver of robotic care for the elderly will be that the elderly themselves prefer robotic strangers caring for them, rather than human strangers.  Particularly in all the intimate, intrusive, personal things like bathing and toiletting — I at least would vastly prefer to interact with a machine rather than a home care person.  Robots in that sense help me avoid having to depend upon the kindness of strangers.

This is outside of my usual area of robotic remit — robots and the laws and ethics of war.  But I am rapidly moving to backfill into these other areas as it becomes clear that these questions of technology, but also of law, are interrelated and often versions of the same thing.  The robotic decision whether to fire a weapon or not, if technology ever comes to that point, is importantly interconnected with the question an eldercare robot might have to ask regarding whether to call 911.

(There are several topics raised by the Stanford discussion on robotics and I’ll try to get to several of them over the next few posts.  But I wanted to thank Ryan Calo and all the folks who put the discussion together — it was a great set of discussions for me and I hope for everyone who attended.  I realized, sitting and listening, that there are not that many places in the US where you could hold that kind of discussion, with an audience including engineers and technologists and scientists sitting in the office who actually work in the field, not just in academic departments, but in commercial firms and ventures, trying to make it real.)

A couple of weeks ago I mentioned a new book on constitutional interpretation and language by my colleague, Washington College of Law professor Robert Tsai — Eloquence and Reason: Creating a First Amendment Culture.  Constitutional rhetoric and interpretation are not my areas, but I started reading the book and have found it to be a lively, provocative essay, though I don’t really feel competent to comment on the content deeply.

One thing I will say, though, is that I appreciate both the quality of writing in this essay, even as a non-expert, and also appreciate very much the method of the humanities that it represents.  I have thought that traditional methods of the humanities — the interpretation of text in its linguistic as well as historical richness — has suffered somewhat in legal scholarship in recent years under a certain economics-oriented reductivism.  That’s a broader topic for a different day, however.  But Robert Tsai is a gifted writer and thinker, and even as (maybe especially as) a non-specialist, his book is a pleasure to read.

The comments to my original post, in particular Orin’s question about results and rhetoric, caused me to go back to Robert Tsai and ask if he might give us a short statement on the book, and say something about the interpretive question.  Robert was kind enough to do so, and so I am putting up his short response here.  Robert — our thanks for joining us here at Volokh with a contribution!

Many thanks to Ken and everyone at the Volokh Conspiracy for the opportunity to say a few words about Eloquence and Reason.  The book examines First Amendment law as a cultural system: not simply a collection of legal decisions or even a normatively desirable set of substantive commitments, but also a shared political belief system and popular vocabulary.

Because the text of the First Amendment has never changed, those interested in constitutional transformation have always used text instrumentally to secure a hegemony of preferred values, outlooks, and modes of talking about the provision.  Whether insiders admit it or not, the task of judging involves sorting through competing claims to determine which cultural and political perspectives ought to be validated and which ones should be resisted.  Judges have always played a role in this social process, even if theirs is rarely the last word on a subject.  There is no such thing as neutral interpretation; there is only how transparent an interpreter chooses to be about her methodologies and substantive commitments.

Eloquence and Reason examines historical episodes in which activists, lawyers, and presidents such as FDR and Ronald Reagan worked to dislodge reigning constitutional ideas and reshape our understandings of free speech and religious freedom.  Then, as now, each party to a constitutional debate claims to bear the “authentic” or “correct” reading of the text.  Because my model of constitutional change is agnostic to political ideology, it allows anyone to try to speak on behalf of the people and their charter.  For the most part, such claims are filtered through existing institutions.

Two episodes taken up in the book may interest readers of this blog.  The first involves a wartime turnabout on whether the First Amendment should prevent public schools from punishing a student for refusing to salute the American flag.  Laying Gobitis (1941), where the Justices said no, and Barnette (1943), where the Justices changed their minds and said yes, side by side shows very different worldviews.

The first ruling prized unity, majoritarianism, and ritual nationalism enforced at the local level; whereas the second decision valued individual dissent, pluralism, and uncoerced political attachments.  Drawing on speeches and writings by FDR and high-ranking officials, as well as unpublished drafts of the Barnette decision, I argue that out-of-court statements had an impact in publicly recasting the constitutional stakes in the dispute.  The administration blamed the Supreme Court’s Gobitis decision for the persecution of Jehovah’s Witnesses and urged the Justices to overrule themselves.  Officials also aggressively presented the very values eventually ratified in Barnette, signaling that such values were crucial to the post-war legal and international order.  And they are to this day.

A second episode has to do with the Anti-Establishment Clause.  The “wall of separation” metaphor appeared as part of an official post-war strategy to keep the peace.  As originally conceived, Justice Black’s version of the boundary idea conveyed liberalism’s commitment to equal respect, to the protection and empowerment of religious minorities, and to guaranteeing a strong state uncorrupted or divided by religious strife.

Over time, these connotations were consciously reconfigured through litigation, activism, and the electoral process.  Through a process of composition, reaction, adaptation, and dissolution, the wall of separation began to acquire negative connotations.  Those outside of the courts began to say that the wall signified hostility or discrimination, oppression of religious minorities, and a state weakened by the alienation of its citizens. Eventually judges endorsed this way of describing the wall of separation, shunning it as a trope and divorcing it from their analyses of the controversies that arose.

A word about the causal connections between language, motivations, and outcomes [going to Orin’s comment/question — KA].  The mere existence of a legal discourse does not compel any particular outcome in a dispute.  That would run counter to the idea of “rhetorical freedom,” which even the Framers acknowledged would continue after the Constitution’s ratification.  Whatever a party’s instrumental reasons for taking position X, constitutional language circumscribes the range of options available for portraying X as a defensible position, thereby limiting the range of linguistic options.  Broader shifts in constitutional language reveal changes in a nation’s political beliefs, institutional priorities, and even how a community sees itself.

I’ve been traveling recently, and so have been away from posting.  One of the enforced virtues of traveling — one of the few virtues of traveling for me these days — is the plane flight with no internet.  And if the big guy in front of me reclines his seat, as he always does, I can’t even get to my computer.  So I read  on flights.  I should have some reading gadget, Kindle or whatever, but I’m not that far along yet, and for that matter I should get an economy class friendly little word-processor to use on flights, but I’m cheap.  Here’s a selection across the varied reading on my flights.  No particular theme or order, I’m afraid (on account of the mixed-up topics here, I think I won’t open to comments; too jumbled to be productive). Continue reading ‘Reading While Traveling, Hard Copy and No Internet’ »

I’m sorry I wasn’t and I don’t quite know what happened.  I don’t say this to be flippant in the least.  I knew that big things were happening, but unlike many others’ experiences, it all seemed very gradual to me and finally anti-climactic.  It seemed like something that was gradually sliding into place that had been sliding into place for a long time but was also terribly fragile.

I credit that feeling to two things.  One was that I was working in a Manhattan law firm, and completely buried in learning international tax.  The other was that I had spent the previous several years putting in large amounts of time with Human Rights Watch, both its Americas division and its Helsinki division.  I had done many missions in Yugoslavia, watching the Soviet empire fall apart while watching Yugoslavia fall apart very much upclose, at the village level, and watching it lead to war, affected how I saw the Soviet Union.  I had a huge anxiety that war would break out in the Warsaw Pact; or that it would be a repeat of 1968 — especially a fear of a repeat of the end of Prague Spring, that fear more than anything — or something that I didn’t know, but bad, would happen.

I was also perhaps lulled into a sense of passivity that was somewhat Bush senior’s approach — looking backwards, it had important advantages by treating it as a matter of course — but for me, at least, it felt a little like events were unfolding, not so much as Frank Fukuyama would later say, but more as people like Adam Michnik and the Eastern Europeans intellectuals I knew said it would, if only the US and Western Europe would stay the course.  In Yugoslavia, it was a very different sense; the intellectual elites of Yugoslavia understood very well that the end of the Cold War undercut the existential position of Yugoslavia and so it did.  I had a sense of trepidation, not of liberation and freedom. The profound sense of liberation came later for me, when I finally believed that it was permanent and not a temporary blip.

Not very Reaganite, but then I wasn’t a Reaganite or a con or a neocon then.  The books that were on my mind were George Konrad’s magnificent, but unbearably sad, The Loser and Milan Kundera’s The Book of Laughter and Forgetting and, above all, The Unbearable Lightness of Being. I had a deep fear that if one looked at it all too closely, someone, the Red Army, someone, somewhere would take it all away again.  I was an editor with Telos, the critical theory journal that had introduced so much of the zamizdat intellectual production into English from Eastern Europe; I knew lots and lots and lots about the intellectual politics there.  It was very hard for me to believe that this was actually real and tangible, and not something so fragile that a little puff could bring the house of cards down.

So I wish I had been more attentive to events, and wish that I could blame it merely on working such long hours in the law firm — but rather, it felt to me like something happening in slow motion across many years.  November 11 was weirdly not so special for me, because I had been involved for so many years, since the early 1980s, with HRW and Telos watching events unfold at the level of civil society activists.

A close friend of mine was there when it happened, though, David, a gay man with AIDS.  I was astounded when he stopped by to see me in New York with photos of himself chipping away at the Wall.  Possibly a little bit cheated — since when was David off partying in Berlin and not me?  He had never been “political” in any sense, not gay rights, not really anything, and I told him I was pretty sure he couldn’t find Bratislava on a map — until AIDS caught him and he became deeply involved in ACTUP.  Since when did he deserve to go celebrate the end of Communism and the Wall?

But David saw in some deep way, as AIDS closed in on him, that being at the fall of the Wall was as an act of liberation even for people otherwise altogether uninvolved in the politics of the Cold War, or the politics of Europe, or any of that.  It was just freedom, and maybe David actually captured its pure spirit — dissociated from politics.  If that is possible, and  I don’t know that it is; actually, I am pretty certain it is not.  But David died just a month later, AIDS caught up with him for good, in the hospice of the San Francisco Zen Center; the Lord bless him and keep him, he was a good man, and so were the monks of the Zen Center who watched over him.

And so, for better and worse, that’s how I remember the fall of the Wall.  Photos of David that I no longer have, pre-digital, gaunt and his long hair swinging round, laughing and singing, wearing some kind of weird poncho that he never would have worn in 80s LA (but of course I might), standing on top of a big pile of cement.  There isn’t any big moral here about freedom and liberty — there is all of that, for me as for others, but in my case it wasn’t associated with the actual moment.  The comprehension of liberation and freedom came later.

Last week I blogged about a very interesting article in the Manhattan Institute’s City Journal by Claremont Review of Books contributing editor William Voegeli titled “The Big-Spending, High-Taxing, Lousy Services Paradigm” (Autumn 2009).  It compared the tax-services models of California and Texas.  VC commenters were spirited as ever and raised a number of important questions.

Although I haven’t had the pleasure of meeting William Voegeli, I took the liberty of contacting him through the Claremont Institute and asked if he might have any additional thoughts for us, particularly responding to VC commenters.  Mr. Voegeli was kind enough to say yes, and has sent along the following response, below.  Let me add, on behalf of the VC community, myself as well as readers and commenters, our great thanks for engaging with us.  And let me add to the VC commenting community, that in the spirit of the original article, you might call Volokh Conspiracy a ... Low-Taxing, High-Services blog!  Mr. Voegeli:

Dear Prof. Anderson:

Thank you for bringing my City Journal article (http://www.city-journal.org/2009/19_4_california.html) on California and Texas to the attention of the Volokh conspirators, and for your generous and thoughtful analysis (http://volokh.com/2009/11/02/the-california-versus-texas-model-and-public-choice/) of the piece.  Your post elicited many . . . spirited comments.  It would be cumbersome to address them individually, but I can offer a few points that speak to some of the general questions your readers brought up.

My essay argues that it’s not enough to look at how much states and localities spend because how well they spend is very important.  I understand several people in the comments section to be saying that this principle applies to the tax side of the equation, too.  Thus, California’s problem is not so much that it is a high-tax state but, as one commenter says, that it is a “constrained-and-erratic tax” state.

That’s a fair point.  The combination of direct democracy and the state’s belief that vast optimism could overcome mundane realities left Californians believing they could somehow be “taxed like libertarians, but subsidized like socialists,” as Troy Senik recently said (http://www.nationalaffairs.com/publications/detail/who-killed-california) in National Affairs.  Not only did it prove impossible to achieve the best of both worlds, but the political impotence created by undertaking the effort helped bring about the worst of both: “In a grim irony, Californians are now being taxed like socialists and subsidized like libertarians.”

Proposition 13 is certainly not beyond criticism.  Some things need to be said in defense of the law and its advocates, however. Lots of poorly drawn laws and state constitutional amendments have been passed at the ballot box.  The ballot initiative is never going to be a precision instrument, however, and it’s unfair to hand the voters an axe and then judge their work as if they possessed a scalpel.

The best way to have averted the enactment of Proposition 13 would have been if California’s political establishment in 1978 had put forward a better alternative, one that addressed Californians’ anxieties about tax escalation without 13’s flaws.  Instead, Gov. Jerry Brown and the Democratic legislature held off for as long as possible in offering any sort of response to the people angry and fearful about rapidly rising property taxes, in the hope that the political problem would blow over.  When it didn’t, they finally devised a tax limitation alternative to 13 whose distinguishing feature was that it didn’t guarantee that anyone’s taxes would be limited.

In the 31 years since Proposition 13 was enacted that bait-and-switch problem crops up over and over.  When people here complain that taxes are too high, especially given the doubtful quality of the public services they purchase, the enlightened response is always that taxes aren’t high so much as they’re arbitrary and complicated.  The correctives proposed to enhance the quality of the citizen’s tax-paying experience all purport to make taxes fairer and simpler, but their one clear outcome is that taxes would be higher.  Thus, the reforms that would streamline how California’s governments collect money would have the consequence of relieving those governments of any obligation to devise better, smarter and fairer ways to spend it.  It takes a trusting spirit to believe that this outcome would be an accidental byproduct of tax reform.

A final note.  One commenter argued that government is expensive in California largely because housing is expensive, thus disproving the idea that California governments spend their money in undisciplined, ineffective ways.  Two points:

• 1) California’s state and local employees are the best compensated in the country (http://www.census.gov/compendia/statab/tables/09s0448.pdf) and the differences between them and their counterparts in states that are also expensive are not trivial.  Local government employees make 11.5% more in California than Connecticut, and 21.4% more than those in Massachusetts.  State workers in California make 13.1% more than New York’s and 19.9% more than those in Massachusetts.
• 2) The high cost of living in California, especially the high cost of housing, is a problem for government, in that it puts pressure on it to increase the pay scale for public employees.  That fact does not preclude the possibility that the high cost of housing is, in significant measure, a problem caused by California’s governments.

Let me close on this point by bringing in an expert witness, Edward Glaeser of Harvard’s economics department and Taubman Center for State and Local Government.  In a Los Angeles Times article (http://www.latimes.com/news/opinion/commentary/la-oe-glaeser4-2009mar04,0,4085382,print.story) earlier this year he said:

Although California is a populous state, it still has plenty of land. Santa Clara County, the home of Silicon Valley, only has about 2.2 people per acre. Even in denser places, such as Los Angeles, there is plenty of room to build.

California’s growth has slowed because the state has made it increasingly difficult to build new homes. There is an almost perfect correlation between the growth of an area and the amount of housing that is permitted in that area. California has some of the toughest land-use regulations in the country, which are often justified as environmental measures. When high housing demand is met with restrictions — not construction — California homes become unaffordable and new construction goes somewhere else.

Best regards,

Bill Voegeli

I’m late ordering books for my spring class on private equity and venture capital, and am desperately trying to figure out if there might finally be a law school text on this topic.  The constraints are the following.... below the fold.  (ps.  The advice folks gave me on my earlier question re law and econ for a first year course was very helpful, thanks.) Continue reading ‘Private Equity Law Textbook? Desperately Seeking ...’ »

UN HRC Ceiling Mural ... at $23 million

The New York Times reports on budget season at the UN and various battles hotting up.  It’s a good piece by Neil MacFarquhar, dated November 7, 2009.  As the article says, that fact that

it costs the United Nations an average of $2,473 per page to create every single document in its six official languages, while outside contractors complete the same work for around $450, prompts diplomats to accuse the organization of running amok during a global financial crisis.

It goes on to discuss the practicalities of the negotiations among the diplomats — the multiple sources of conflicts.  It is well sourced — as the article says, anonymous sourcing, understandable under the conditions — from many diplomats and explains the process by which the budget is reached.  The conflicts?  They include the perennial fight between the large majority of states that don’t pay and the minority that do; the amount that BRICs (Brazil, Russia, India, China) pay in relation to wealthy but smaller GDP states such as Canada; objections to UN Secretariat add-ons; there are others.

My view has long been that the US interest is to starve the General Assembly and most of its direct appendages of funds, while giving voluntary funding to those parts of the UN that work passably well and serve US interests and ideals (yes, there are parts of the UN that the US should financially support strongly, such as the World Food Program).  In effect, undertake a buyout of the parts of the UN that work, and seek budgetarily to contain the parts that don’t or are repositories of anti-US activism (the Human Rights Council, for example).

In any case, whatever one’s view, I’m always surprised by how many experts and partisans of the United Nations are uninterested in its internal budget and money issues.  Paul Kennedy wrote an entire book in praise of the UN, but preferred to stay either in the diplomatic histories of 1945 or up in the clouds of The Parliament of Man — he did not manage to devote even a page to money and budget issues.  That is my experience with most academic UN observers; there are important exceptions, usually people like John Ruggie who have been UN officials, but it mostly holds true; academics tend not to be interested in the accounting and financing.  The basic rule, follow the money, does not seem to apply to the UN — meaning, follow-the-money as a fundamental, obvious way of explaining the UN.  So much for historical materialism?

The reasons are complicated, but include a combination of the distaste of those who follow public law and organizations for accounting combined with a sense that what matters is not the money but the grand ideals of the institution.  ‘UN platonism’, as Michael Glennon once memorably called it.

Indeed, when one raises even a handful of the many, many scandals surrounding the UN and money, the reaction among international law observers tends to be, in my experience, not shock and a resolution that the organization needs to be better held to account, but a general sense that those who dwell on the sordid details are somehow demeaning the institution.

(Who among international law academics, for example, followed the saga of the $23 million (!) ceiling mural in the chambers of the Human Rights Council in Geneva - unveiled in 2007?

I’m in favor of public art and spending money on it, even at the UN.  Then there’s the kind of extravagance one might hope would cause, say, special rapporteurs and the US delegation and the NGOs that pressed for the embarrassment of the Council to replace the Commission in 2005 to stare up at the ceiling during meetings and think about what $20 million of that $23 million would do for World Peace or Human Rights or something.  The UN’s Climate Adaptation Fund, for example, which started in 2008 to help poor nations with climate change issues currently $18 million — not enough to pay for the current round of Copenhagen talks.

I mentioned it at a couple of academic meetings offhand, and the audience comments were that I was either mistaken or merely expressing hostility, because the only people who had talked about this (in English, anyway) were FoxNews and UNWatch, or that it was unworthy to dwell on such minor things.  If you looked at these kinds of issues, you were mistaking the forest for the trees.)

Whereas I would have said that after a certain point, these apparently minor details tell you about the nature of the organization, especially when it is an organization that has so little capacity to address even questions of embezzlement, fraud, or similar crimes.  So when it just comes to spending 23 million dollars on a mural — that is, “mere” mismanagement of financial resources — yes, I think it tells you something about the nature of rent-seeking and organizational priorities.  Particularly when it turns out that Spain — it was a Spanish artist doing the HRC ceiling — apparently raided its international development budget to help pay for “the Sistine Chapel of the 21st century.”  I think it does tell you something about incentives, motivations, public choice, institutional capture, and many other things that give a far better understanding of the organization than one gets by reading the UN Charter or the academic literature.

These are big questions, after all.  The reason why the organization can’t address corruption has largely to do with the protection that member states offer to their citizens, for example, which tells you something about the way in which states view the organization and themselves.  The reason why, for example, international development NGOs or even, come to it, human rights NGOs, did not make an immense ruckus over 23 million dollars that could have been spent on some Jeff Sachs development project tells you something about the relationship of the NGOs to the UN, and the other way around.  Or possibly how the “actually existing UN” actually feels about Professor Sachs’ MDGs, when it comes to the organization’s own budget priorities.  Why it is that the Secretary General couldn’t actually fire anyone even if he wanted, or why so many of the senior staff make well in excess of, for example, what the US Secretary of State makes, well, all of that is not a matter of minor details — why sweat the small stuff, we’re told, when the organization is about the glories of global governance? — but instead tells you crucial information about agency failure, institutional capture, public choice, rent-seeking, and the internal dynamics that those who focus on The Parliament of Man never quite want to know about.

(Update:  Thanks Glenn for the Instalanche!  I should add that I am finishing a book on this subject, Returning to Earth: When and How the United States Should Engage, and Not Engage, with the United Nations.  My editors have shown the patience of saints, but I am finally finishing the darn thing.  Meanwhile, part of it is an this SSRN paper on the parallel global security systems provided by the US and the UN, as well as the one linked above on The Parliament of Man.  And then there is this discussion of legitimacy, global civil society, and the United Nations, which will be appearing as a book chapter soon, but here is a working version at SSRN.  I’ve also added the photo of the HRC mural — it seemed to be in the public domain.)

I’m sure many people saw this over at Instapundit, and maybe it’s not as cool as Sketch2 below, but I spent a while messing with this today and thought it was fascinating ... MarineTraffic.com, with a live GoogleEarth map of marine shipping worldwide.

I started out legal life in California, clerking for the California Supreme Court and, already being a tax geek, was handed many of the state tax issues.  So I have some familiarity with California’s tax law.  It is complicated and in many policy aspects problematic, but also, to be clear as a lawyer, it is also highly sophisticated as a body of regulatory law.  I have not had time to look back to California law and regulations on withholding, and haven’t updated my knowledge of the topic since I clerked there a long time ago and dealt with a couple of minor issues.

However, my understanding then was that withholding law was premised on it being an enforcement mechanism to ensure that the proper tax would be withheld on an expeditious basis and taking account of difficulties in collecting the tax due after the fact.  I did not think that it had a basis in law as a revenue raising device in its own right — it was legally an administrative provision for the correct, fair, and efficient collection of tax due, where the actual tax due was figured on the basis of separate statutes.

So I am confused as to the legal authority of the state of California apparently to impose an increase in the withholding rate, not for reasons having to do with the fair and efficient collection of tax finally to be due, but instead to raise revenues or time revenues for reasons not deriving from the administrative necessities of actually collecting a tax, the amount of which is determined by separate tax statutes and regulations.  Or have I not understood correctly, from news articles, what has taken place in a legal, tax-lawyer sense?

Starting Sunday, cash-strapped California will dig deeper into the pocketbooks of wage earners — holding back 10% more than it already does in state income taxes just as the biggest shopping season of the year kicks into gear.

Technically, it’s not a tax increase, even though it may feel like one when your next paycheck arrives. As part of a bundle of budget patches adopted in the summer, the state is taking more money now in withholding, even though workers’ annual tax bills won’t change.

Think of it as a forced, interest-free loan: You’ll be repaid any extra withholding in April. Those who would receive a refund anyway will receive a larger one, and those who owe taxes will owe less.

Okay, forced interest-free loan, got that.  What I don’t understand is the legal basis for ordering it.  I realize that I should do a little legal research, or anyway tell my research assistants to do it, but I’m swamped while still interested — and think it is broadly interesting, and not just in California.  So:  I would be interested to know particularly if any experienced California tax lawyers could explain for us the following.

• First, what is the statutory or regulatory basis, if any, on which the state of California has justified the change, and, for that matter, where is the change officially promulgated and on whose authority?
• Second, is there precedent for this, as an administrative but also legal matter in California — has this occurred before and has there ever been litigation, administrative or otherwise?
• Third, is there a basis on which to contest the lawfulness of the increase?  And further to that, how does that proceed in California — can one proceed on an injunctive basis, on a class basis, what — or is it foreclosed by law or precedent?
• Fourth, even if the Governor or the Legislature has issued the order, does the administrative agency thereby have the authority under California law to carry it out; that is, is it possible that such an order exceeds the authority of the relevant agency?
• Finally, is anyone pursuing such litigation; or alternatively, is the order obviously lawful?

I’m happy to hear people’s views on the policy and political issue, but I particularly welcome comments going to California law and regulations.  Thanks.

Update:  TaxLawyer (thanks!) provides helpful comments and a couple of links, below.  One link is to a client advice memo (ie, public) from the Littler law firm.  It provides a good, succinct analysis of the law and the change, and makes clear that the change is a revision to the standard withholding tax schedules.  But it also adds that this is essentially a trap for the uninformed (emphasis added):

As part of California’s annual budget ordeal, rather than enacting new taxes, the legislature enacted (and the Governor signed) various income shifting and tax acceleration provisions. Under ABX4-17, as of November 1, 2009, employers will be using a new state income tax withholding table to increase by 10% the amount of income taxes withheld based on existing claimed exemptions ...

Typically, employees adjust the level of income tax withholding by submitting to their employers an IRS form W-4. California also has its own form, DE-4. Employees can submit different forms reflecting their state and federal personal income tax circumstances. Rarely will the use of either or both forms result in withholding that precisely matches the employee’s own annual income tax liability. Ultimately personal tax liability is a matter for the employee.

In an effort to accelerate revenue flow, beginning November 1, 2009, California is adjusting its income tax withholding tax tables by 10%. For example, if bi-weekly state income tax withholding is currently $500 a pay period on an employee’s regular wages, come November 1, such withholding will automatically adjust to $550 ....

As this flat rate adjustment may have no relationship to actual state income taxes, employers can anticipate employees will be potentially flooding payroll departments with revised W-4 and DE-4 forms to “right size” their withholding arrangement. Since nothing in the law forces employees to increase their withholding, an employee can effectively reduce the effect of this law by increasing claimed exemptions, if the new tables would result in excessive tax withholding.

California is proceeding on the assumption that either employees under withhold income taxes through payroll or that employees will not be smart enough to adjust their withholding, and instead give California an interest-free loan of California employees’ income.

That’s with respect to withholding taxes on employment income.  There are separate issues with respect to other kinds of withholding, and the Littler memo notes the following.  The statutory authorization, ABX4-17

also provides for those who file estimated taxes (typically the self-employed) to also accelerate such payments. Both of these acceleration features raise potential constitutional issues and/or other statutory issues, as in many instances such accelerated revenue receipts exceed an individual’s tax obligations and conflict with other state and/or federal laws obliging an employee to accurately provide for income tax withholding.

If you are going to be around Palo Alto next Thursday evening, you might consider attending a panel discussion on robotics and law at Stanford Law School.  I’ll be on a panel alongside some very interesting and knowledgeable folks taking up varied aspects of robotics (my particular interest is robotics and war, but the panel will be considering many areas of robotics).  The particulars are below the fold.

(Update:)  Here’s the assigned topic for comments, following up on Laura’s opening comment ... should the panel discuss the Three Laws?  Are they a useful ethical/legal frame for dealing with robots in various aspects of human life?  Did Asimov lead us all astray by proposing them?  Should we instead avoid discussing them altogether?  What would you propose would be a better set of principles/laws/guidelines for robot-human interactions?

(I’ll also be giving a lunch talk/discussion that same day sponsored by various student organizations at SLS specifically on robotics and armed conflict. And thanks Glenn for the Instalanche!)

Continue reading ‘Law and Robotics Panel at Stanford Law School’ »

This is coming more than a little late, as the book has been out for a few months, but I wanted belatedly to congratulate my Washington College of Law colleague, Robert Tsai, on his book Eloquence and Reason: Creating a First Amendment Culture.  I have it on my shelf for night reading, but unfortunately even my “free reading” time has been swept up in other things.  However, I note that it just received an enthusiastic review from Kevin Kosar in the Weekly Standard, October 26, 2009 (maybe sub reqd.).  Kosar’s review notes (along with some criticisms of the book):

Tsai, a professor at the American University law school, depicts how the Court has transformed the nature of the First Amendment by pouring new meanings into its words. In a mere century, the Court has made stunning alterations to the freedoms of speech, assembly, and religious exercise, and transmogrified the Amendment’s prohibition against making a law ‘respecting an establishment of religion’.

Tsai argues that the Court has been able to pull off this feat by employing stirring rhetoric and powerful metaphors. Thus, over the past century, it has likened the act of speaking in a public place (in Justice Holmes’s words) to falsely shouting Fire! in a crowded theater, to lawful assembly in the grand tradition of democracy, and to the peddling of wares in a ‘marketplace of ideas’. When one metaphor ceases to provide the desired results, the Court crafts a new one....

Inevitably, as Tsai shows, metaphors fail. Speech may be like fire, but it is not fire; it is speech. When people have wised up to this, the Court has concocted a new metaphor and eased an old one from the scene. And as it has repeated this rhetorical switcheroo, the Court’s decisions have grown increasingly estranged from the plain language of the First Amendment and the Constitution generally. The word ‘speech’ no longer means talking; it now includes actions, such as burning the American flag and peddling pornography via the Internet. Taking all this in, the average American might well wonder if the justices are making things up as they go.

Tsai has written a fine book, but I cannot help but think that the late Justice Stanley Reed got it right in his dissent inMcCollum v. Board of Education (1948): “A rule of law should not be drawn from a figure of speech.”

Unfortunately, I don’t have time to say anything substantive about this now, but AP reports on the conviction of twenty-three CIA agents in absentia in Italy in a trial over an extraordinary rendition.  The AP story is unusually detailed for a wire story and bears reading.  I am in the middle of something and can’t stop to comment  on the substance.

However, I’ll make again the side observation that I have made before that this is the next step in what I have described here and on the OJ blog as “gaming Spain.”  It has been remarked by many observers how the effect of foreign prosecutions or the threat of foreign prosecutions is a backdoor way of punishing administration lawyers and others, such as these CIA agents, for various things that can’t be or are not pursued in American courts.

Less remarked, however, but I predict is the wave of the future, is how these kinds of backdoor prosecutions will, over time, turn out to track Democratic and Republican administrations differently.  Part of this is driven, in my view, simply by a a shared ideology among actors within the Obama administration with the ability to set the agenda on these matters — given the relatively little interest that Republican members of Congress show.  Your mileage may vary on how to interpret the administration’s polite regret and disappointment over the Italian verdicts, for example, and I suppose it is possible that the Bush administration would have shown no greater willingness to use real muscle to make its displeasure felt.

My personal view is that the administration, or at least key players on these matters, however, have concluded that it’s perfectly okay given that the final result is not actual jail for the US persons (I’m lumping together the Italian prosecutions, threatened Spanish actions, and other places to sum up policy) but instead simply an inability to travel abroad.  On reason I believe this is what key players in the Obama administration think is simply because I’ve heard it so often over the last three or four years.  I have heard it said in many conversations among international law academics, advocates, NGO activists, and so on, that this is a good way both to appropriately punish, for example, John Yoo — and to deter future government lawyers or actors, many of whom do contemplate active professional and personal lives outside of government that might involve travel abroad.  I don’t doubt that this is a reasonably widely held view, for example, among professional and academic readers of the international law blog Opinio Juris, where I also blog.  Heck, it wouldn’t surprise me if it had been urged as its own policy in some paper somewhere on SSRN, although I haven’t actually seen anything like this.  It’s not an accusation of bad faith; it’s just a fairly pedestrian trope in this particular community.

But whether the psychological motivations are as I believe they are or not — whether I’m right or wrong about what the increasingly ‘visible and noisy college of international law’ thinks is a pretty appealing backdoor way of punishing Yoo, et al. — the biggest reason I think this is the wave of the future is the strategic logic of the situation.  Filling out what I said above, it seems to me likely that these prosecutions, threatened or actual, will target Republicans over time and not Democrats, even when the behavior is quite obviously the same.  Targeted killing using Predators seems to me very, very likely — just as soon as there is a Republican in the White House.  Meanwhile, nothing actually happens, but the legal and soft-law groundwork is put in place so that upon a change of administration, somehow things change, at least as far as the legal characterizations and then later how prosecutors like Spain’s Baltasar Garzon see them.

Why one party and not the other, if based on anything other than claimed psychological affinities?  If the advocates, NGOs, activists, European prosecutors, UN folks, etc., were to go after both Democrats and Republicans — for, after all, the same behavior — then Democrats targeted from the Obama administration would hang together with Republicans of President Ummm.  A threat against American behavior as such, behavior undertaken by both administrations, would force the Americans to hang together as Americans.  So if you are the international law community, and even if you would in principle like to go equally after everyone engaging in the same behavior, you get 0%.  That’s so whether or not you have the same appetite for going after people in any administration.

If, on the other hand, you go only after Republicans, you can reasonably count on Democrats, if they know they are not going to be targeted, to hang with you in going after Republicans.  So you don’t get 100%, but you don’t automatically get zero, either, and you might get 50%.  That seems to me a reasonably rational strategic argument, at least from the foreign standpoint.  (There’s a further question about why Democrats would go along with this ‘international law community’ rather than siding with their fellow Americans that does involve extra-strategic preferences.)

I also predict that the behaviors at issue in targeted killing with Predators will suddenly turn out to have mysterious, hithertofor unidentified legal characteristics that make it one kind of thing when it is the Obama administration, and something else — and suddenly legally liable — when it is the next Republican administration.  And that some of those arguing that it was one thing under Obama and another under the next administration will be the current administration’s transnationalist lawyers, out of office and back in the academy or think tanks or NGOs.

I happen to think it is a good thing, however, if Americans hang together as Americans when it comes to successive presidential administrations — national politics and the water’s edge, in that apparently old-fashioned and out-of-fashion and un-cosmopolitan formulation.  So unsurprisingly I think it would be a good thing if Republicans and, even better, some Democrats would take account of this emerging path of international soft-law, and perhaps start taking steps to stop it.  I’m not holding my breath.

(After a couple of annoying/uncivil emails on this, I decided to delete and close the thread as well.  Apologies to any non-abusive commenters whose comments I deleted.)

William Voegeli, a contributing editor at The Claremont Review of Books, has an excellent essay in Manhattan Journal comparing the economic performance of California and Texas.  (I believe a short opinion page version appeared recently in the LAT.)  Among other things, the article provides a good example for how a public choice analysis can be applied to show, in this case, capture of public revenues and the process of increasing public revenues by public employees in California.

The most interesting feature of the article, however, is that it does not start out from a position of hostility toward California and its high tax model.  On the contrary, it says that there is a tradeoff that different people will make differently with respect to high tax/ high public services jurisdictions and low tax/ low public services jurisdictions.  There is a perfectly good argument for the former as well as for the latter.

It’s true that many people are less sensitive to taxes and more concerned about public goods, and these consumer-voters will congregate in places with extensive services. But it’s also true, all things being equal, that everyone would rather pay lower than higher taxes. The high-benefit, high-tax model can work, but only if the high taxes actually purchase high benefits—that is, public goods that far surpass the quality of those available to people who pay low taxes.

I grew up in California and despite my Upper Upper NW DC address, will always count myself a Californian, product of its public schools and a proud graduate of UCLA.  I was a beneficiary of the high tax/ high benefits model, and gravitate toward it.  The problem, as Voegeli documents, is two fold.  First, California is today a high tax/ low benefits model, while Texas, even with relatively low taxes, has managed remarkably to catch up and even pass California in ways I would not have believed possible.  But Voegeli’s data, as I have discussed it with other Californians and Texans, seems to me pretty robust.  His conclusion?

“Twenty years ago, you could go to Texas, where they had very low taxes, and you would see the difference between there and California,” Joel Kotkin, executive editor of NewGeography.com and a presidential fellow at Chapman University in Southern California, told the Los Angeles Timesthis past March. “Today, you go to Texas, the roads are no worse, the public schools are not great but are better than or equal to ours, and their universities are good. The bargain between California’s government and the middle class is constantly being renegotiated to the disadvantage of the middle class.”

Similarly, the CEO of a manufacturing company in suburban Los Angeles told a Times reporter that his business suffered less from California’s high taxes than from its ineffectual services. As a result, the company pays “a fortune” to educate its employees, many of whom graduated from California public schools, “on basic things like writing and math skills.” According to a report issued earlier this year by McKinsey & Company, Texas students “are, on average, one to two years of learning ahead of California students of the same age,” though expenditures per public school student are 12 percent higher in California.

State and local government expenditures as a whole were 46.8 percent higher in California than in Texas in 2005–06—$10,070 per person compared with $6,858. And Texas not only spends its citizens’ dollars more effectively; it emphasizes priorities that are more broadly beneficial. In 2005-06, per-capita spending on transportation was 5.9 percent lower in California than in Texas, and highway expenditures in particular were 9.5 percent lower, a discovery both plausible and infuriating to any Los Angeles commuter losing the will to live while sitting in yet another freeway traffic jam.

What happened?  According to Voegeli, two things.  One is that scarce tax dollars in Texas are spent on priorities that have broad appeal, while California spends far more of its tax dollars on transfer payments to particular groups with political clout.  Second (and a subset of the first, really) is that the tax dollars in California go to public employees, public employee pensions, public sector unions — nominally to the service providers of the “high benefits” received in exchange for high taxes.  Voegeli reports that they soak up the additional revenue but provide increasingly poor services at an ever increasing cost.

In California, by contrast, more and more spending consists of either transfer payments to government dependents (as in welfare, health, housing, and community development programs) or generous payments to government employees and contractors (reflected in administrative costs, pensions, and general expenditures). Both kinds of spending weaken California’s appeal to consumer-voters, the first because redistributive transfer payments are the least publicly beneficial type of public good, and the second because the dues paid to Club California purchase benefits that, increasingly, are enjoyed by the staff instead of the members.

Californians have the best possible reason to believe that the state’s public sector is not holding up its end of the bargain: clear evidence that it used to do a better job. Bill Watkins, executive director of the Economic Forecast Project at the University of California at Santa Barbara, has calculated that once you adjust for population growth and inflation, the state government spent 26 percent more in 2007-08 than in 1997–98. Back then, “California had teachers. Prisoners were in jail. Health care was provided for those with the least resources.” Today, Watkins asks, “Are the roads 26 percent better? Are schools 26 percent better? What is 26 percent better?”

Watkins is not referring to the mythical golden past in which I grew up outside of LA; this is a mere decade ago.  But Voegeli observes that the task for California is inherently harder for it than for Texas; there is an asymmetry baked in:

If California doesn’t want to be Texas, it must find a way to be a better California. The easy thing about being Texas is that the government has a great deal of control over the part of its package deal that attracts consumer-voters—it must merely keep taxes low. California, on the other hand, must deliver on the high benefits promised in its sales pitch. It won’t be enough for its state and local governments to spend a lot of money; they have to spend it efficiently and effectively.

Agency capture of public institutions, their tax mechanisms and their benefits, is far from an unknown phenomenon.  But I have to say that the idea that California could ever be surpassed on any of the metrics above — education, liveability, transportation, quality of life, etc, — by Texas is ... shocking.

(Note — and before everyone gets all p-o’d in the comments.  I do freely admit and guilty as charged that I feel pretty much about my home state as every Texan I’ve ever known feels about Texas, so no need to abuse me in the comments.  And I will also say that if I were able to move back to California today, and not have to worry about gainful employment as a law professor, I would move to ... Carson City, Nevada, just below the Nevada side of Tahoe, on Highway 395 in the Eastern Sierra Nevada corridor, and have two-thirds the benefits of California (the mountains and the desert, minus the Pacific and the California coastal foothills) without the taxes.  I’m headed out to give a talk at Stanford Law School next week, and while terrifically excited to go talk about robots and war and grateful for the invite, I have serious regrets about not being able stay just long enough to drive over the Sierras.)

My Opinio Juris colleague Julian Ku comments on the dismissal of the Maher Arar rendition case by the Second Circuit in an en banc decision, 7–4.  (Arar is the case of the Canadian who was detained by the US and subjected to extraordinary rendition to Syria.)  Like Julian, and perhaps more strongly, I think the Second Circuit made the right call in deciding not to allow a so-called “Bivens action” for alleged constitutional violations by US officials to go forward, for reasons rooted in the conduct of foreign policy.  Read Julian’s brief comment at the link, but he has an earlier analysis in the links to earlier OJ posts.  (If you want to comment, please do so at OJ.)  (Update:  Another OJ colleague, Kevin Jon Heller, citing to Scott Horton, dissents from Julian and me, citing Judge Calabresi’s dissent.)

I’ve been asked to step in and teach a 1L elective course on law and economics this spring, covering for a colleague who has taken a high level economics post in the administration.  I have to pick a textbook very soon.  The course is for second semester 1Ls, and my goal is to attract 1Ls who did not major in business or economics as undergrads, and make it comprehensible to them.

That means that I don’t want it to be super-math heavy.  It also needs to focus around the 1L courses that they’ve been taking — antitrust and IP and my own corporate finance won’t work, because they come in later years, and so it needs to focus around contracts, tort, property, criminal law.  In addition, it is only a two unit, once a week class, so it can’t cover vast swathes of material, and in fact very far from it.  I’ve never taught the basic, intro law and econ class before, and I’ve never taught 1Ls, so it should be an exciting pedagogical experience — for me, at least!  I’d be grateful for suggestions in two categories:

• Main text — please tell me why this would be a useful textbook, given my constraints above.
• Supplemental texts, such as short introductions on game theory, statistics, supplemental readings on law and econ, etc., but specifically with law students in mind.

Michael Hersh describes a new $50 million George Soros initative to try and remake the economics profession so to reclaim it from “free market fundamentalists.”  The fund will be run by Robert Johnson, formerly a managing director of Soros Fund Management; it hopes to raise $200 million in matching funds.  (H/T Instapundit; also Mark N is right in the first comment to raise Cato as a better point of comparison in the (lengthy) discussion below the fold.)

Large swaths of economics are going to have to be rethought on the basis of what’s happened.” So said Larry Summers, President Obama’s chief economic adviser, in an interview in the weeks after the markets crashed a year ago. Yet to a remarkable degree, economic thinking hasn’t changed very much at all.

Now financier George Soros is announcing a $50 million effort to speed things along. This week Soros is gathering some of the leading practitioners of the market-skeptic school, who were marginalized during the era of “free-market fundamentalism,” among them Nobelists Joseph Stiglitz, George Akerlof, Michael Spence, and Sir James Mirrlees. He’s also creating an “Institute for New Economic Thinking” to make research grants, convene symposiums, and establish a journal, all in an effort to take back the economics profession from the champions of free-market zealotry who have dominated it for decades, and to correct the failures of decades of market deregulation. Soros hopes matching funds will bring the total endowment up to $200 million. “Economics has failed not only to predict and explain what happened but has also failed to protect society,” says Robert Johnson, a former managing director at Soros Fund Management, who will direct the new institute. “That’s what the crisis revealed. The paradigm has failed. There is no guidance.”

I am curious what professional and academic economists make of this kind of initiative.  (Update:  Here’s a much better article from the FT.  And I’ve added ... still more to the post below.) Continue reading ‘A New Soros Initiative on the Economics Profession?’ »

Reuter’s reports on a speech given by Philip Alston at the UN, criticizing the US for its drone attacks or, at a minimum, for not being forthcoming on its drone attacks.  Professor Alston (a friend of mine and well known to many VC professor-readers as an NYU law professor) is the UN special rapporteur on extrajudicial execution.  (I would be curious to see video of the speech if anyone knew of a link; I found the Reuter’s description a little breathless.)

The United States must demonstrate that it is not randomly killing people in violation of international law through its use of unmanned drones on the Afghan border, a U.N. rights investigator said on Tuesday.

Philip Alston, a U.N. special rapporteur on extrajudicial, summary or arbitrary executions, also said the U.S. refusal to respond to U.N. concerns that the use of pilotless drones might result in illegal executions was an “untenable” position.

Alston, who is appointed by the U.N. Human Rights Council, said his concern over drones, or predators, had grown in the past few months as the U.S. military prominently used the weapons in the rugged border area between Afghanistan and Pakistan where fighting against insurgents has been heavy.

“What we need is for the United States to be more up front and say, ‘OK we’re prepared to discuss some aspects of this program,’” the Australian law professor told reporters.

“Otherwise you have the really problematic bottom line, which is that the Central Intelligence Agency is running a program that is killing significant numbers of people and there is absolutely no accountability in terms of the relevant international laws,” he said.

As regular readers know, I think the Predator targeted killing program is perfectly legal; on the other hand, the unwillingness of either the Bush or, now, Obama administrations to state plainly the legal basis on which they believe it operates is a serious legal policy mistake.  What the administration needs to do is instruct Legal Adviser Harold Koh to give a speech that re-affirms the views taken by the US in the 1989 speech by then-Legal Adviser Abraham Sofaer.

It is a bad idea for the USG to do what it appears inclined to do (not just the Obama administration, but the Bush and Clinton administrations, too) and assert that the Predators are targeting combatants in an armed conflict, end of discussion.  From conversations I’ve had with various officials and ex-officials, and what little one can glean from the (foolishly, very foolishly) practically non-existent US opinio juris, the view seems to have been, and continues to be, that this is the narrowest and therefore most careful grounds on which to assert the legality of the actions.

Alas, no.  For the critics of targeted killing, for one to assert the right to target combatants, there must be a cognizable armed conflict under IHL — and it is not clear to many of the critics that Pakistan, rather than Afghanistan, counts.  And for the critics, Yemen or Somalia will definitely not count.  USG officials and ex-officials also seem to assume that because Congress authorized the AUMF, that act of jus ad bellum is sufficient to create an armed conflict with a non-state actor as a matter of jus in bello; critics will dispute that the former creates the latter and that it can run geographically wherever a “combatant” AQ operative happens to be, rather than a zone of substantial fighting.

Assuming arguendo that is so, then, according to the critics, you flunk having an armed conflict.  If you flunk having an armed conflict, then status as a combatant is irrelevant.  Any killing would then have to satisfy international human rights laws — also assuming, arguendo, for example, that the ICCPR were regarded as applying extraterritorially, as the critics do.  In the US view up to now, it does not — but it is very far from clear that the Obama administration will stick by that, though one hopes it has figured out the consequences for its Predator program if it does not.

The only real way for the administration to maintain what, in my view is a legally defensible, strategically vital, and indeed humanitarian measure — the alternative, note, is not “no fighting,” it is the Pakistani army fighting via artillery barrage, not a Hellfire missile — is to re-affirm the Sofaer position, which so far as I know the US has never formally dropped in any case, and assert self-defense irrespective of a state of IHL armed conflict.

According to the Reuter’s account, the US responded by telling the

Human Rights Council in June that it has an extensive legal framework to respond to unlawful killings. It also objected to Alston’s criticism, saying the U.N. investigator did not have the mandate to cover military and intelligence.

Alston wants to know the legal basis on which the United States is operating the drones, precautions it is taking to ensure these weapons are used strictly for purposes consistent with international humanitarian law, and what mechanisms are in place to review the use of the weapons.

“The response of the United States is simply untenable,” Alston said.

“And that (U.S. response) is that the Human Rights Council, and the General Assembly by definition, have no role in relation to killings that take place in relation to an armed conflict,” he said. “That would remove a great majority of issues that come before (the United Nations) right now.”

I don’t agree that the US position is untenable, nor do I think that the HRC or General Assembly has a role to play in killings “in relation to an armed conflict.”  Yes, the General Assembly or, for that matter, the Human Rights Council can opine on whatever they like — as they already do — and I understand if that is what was meant.

But the other possible meaning here is that the US has some legal obligation either to engage with that process or provide it with information or cooperate with it in some way with respect to killing in relation to an armed conflict.  In that regard, I see no obligation on the part of the US to take part, and think the Obama administration quite within its plain legal prerogatives.  There is, rather, an entire body of treaties of the laws of war and its conduct, none of which involves the General Assembly or the Human Rights Council, that regulate killing in relation to an armed conflict.

But note, as well, that the US Department of State’s response that the special rapporteur’s mandate does not extend to these matters is, so far as one can tell from public information, identical to the position taken by the Bush administration.

The Lex column in the Financial Times reports that the rating agencies — Standard & Poor’s and Moody’s — are doing financially just fine and, well, even better than fine:

McGraw Hill this week showed the ratings business is on the increase ...  Its Standard & Poor’s credit ratings agency, which accounts for the vast majority of the publisher’s profits, produced its first quarterly rise in revenues in two years.

In a business with large fixed costs, any upturn makes a substantial impact on the bottom line. Profitability in McGraw Hill’s financial services division, which includes lower-margin data and research businesses as well as ratings, never hit the lofty peaks of rival Moody’s with an operating margin of some 55 per cent. Nevertheless, S&P still managed to reach a 40 per cent margin, having merely dipped to 34 per cent at the end of 2008.

I have found it remarkable how little scrutiny has been focused on the rating agencies, and how little has been done — sensibly or foolishly — to revamp their incentives and business models.  There was some discussion of cutting off the implicit regulatory monopoly created by regulations specifying their services; I am not sure even that has gone anywhere, though I haven’t checked recently.  However, Lex adds this cheerful thought:

In spite of widespread gnashing of teeth over rating agencies’ role in the crisis, both companies are even thought to have increased their fees this year. Furthermore, proposed regulation looks less onerous than first feared. McGraw Hill estimates that extra regulatory costs, such as more compliance personnel, will be half what it originally thought.

Paul Caron, at TaxProf, has posted some executive summary parts and the link to a GAO report on drivers of law school cost as well as minority enrollment.  Regarding costs of legal education, the GAO summary says:

According to law school officials, the move to a more hands-on, resource-intensive approach to legal education and competition among schools for higher rankings appear to be the main factors driving the cost of law school, while ABA accreditation requirements appear to play a minor role. Additionally, officials at public law schools reported that recent decreases in state funding are a contributor to rising tuition at public schools.

Very interesting post over at TaxProfBlog — the screen shots include a number of powerpoint charts and graphs from the GAO report.  I agree with the GAO report and its surveyed law school officials that accreditation plays very little role in driving up law school costs, and that rankings are an important driver.  They are also an important driver in things schools spend money on that drive up costs, such as faculty student ratios, for example.

I also believe, however — but wouldn’t try to defend here — that law schools respond to the availability of federal dollars and capture that money from students, and that law school tuition rates reflect perceptions of the return on investment available to students in going to work for law firms.  At least in my discussions with fellow professors who have some idea about law school economics, the thought is that mid tier schools found that they could place more of their students into large law firms, not necessarily the very top firms, but large workhorse firms that paid well.

And in my discussions with professors, the concerns are two-fold.  First, that if the big law model is genuinely collapsing into the long term, then the returns on law school investment might well be declining to ... what, exactly?  Well, for those of us here in Washington DC, it might be to something closer to what government lawyers earn.  Not to be sneezed at, heaven knows, particularly if you factor in the security and benefits, but not necessarily the returns long term that can support the rate of tuition increases at even mid tier schools like my own.

Second, if the USG becomes the lender directly, the pressure on it to intervene in the tuition “market” (I use that term very loosely indeed) and impose some cost controls is strong.  That could well be characterized, and might actually be, a regulatory mechanism for ensuring that subsidies aimed at students don’t wind up in the hands of a law school oligopoly.  Or not.  At least, that’s the substance of conversations I have with friends at a variety of schools in roughly my school’s tier.

Given the fascination of law professors with all things having to do with the ranking and dissection of the law school world, is it possible that someone has already done a genuine empirical study of the cost structures of law schools and their implied or explicit business models?

As a side note, I certainly find that I think harder than I used to about whether I am providing value to students, and I think of it as dollar value and return on long term investment.  I treat myself a lot more as an educational fiduciary than I used to.  I’m not alone in that, I suspect — I had a fascinating dinner conversation with a friend who teaches comp lit at a top five university; he told me that he thinks all the time about what he is going to convey and what it should mean, particularly as it is not professional education — it is inherently long term and about learning to think, reason, interpret, and write effectively, and in the context of the humanities and values.  He has a son about to enter college and it is on his mind same as it is on mine.  Yet it’s easier, really, for me to answer that teaching in a professional school — I don’t mean that the humanities, literature, etc., are not important, far from it, but that it’s an easier pedagogical question in a law school or medical school than in a literature department.

That means, from my point of view, thinking about law student education and what I think they need that they are not professionally able to determine for themselves.  I’m not an agent for a principal, I’m a fiduciary for an only partly competent principal.  My best advice, I suppose, is that you need a mix of plumbing classes and grad school classes; classes that teach you about the nuts and bolts, but also classes that teach you to think creatively and amply, because the field is not static, at least not in American law.  It might mean law and economics, to learn to think in a forward manner about incentives, for some students; and to learn to write and interpret difficult texts for others; and still something else for others.

Students, on the other hand, tend to think they know more than they do about what they need from law school, and at the extreme end, tend to think of themselves as the purchasers of a very expensive commodity called legal education, and I am the guy on the other side of the Starbuck’s counter purveying it to them.  Wants and needs.  There was a song about that, right?

Just when you thought the global financial crisis was subsiding, with returns to growth in most leading economies, including the US, Europe, China, etc., we have a counter-indicator.  The Financial Times reports today that McDonald’s is closing its three outlets in Iceland, citing the difficult economic environment:

Iceland edged further towards the margins of the global economy on Monday whenMcDonald’s announced the closure of its three restaurants in the crisis-hit country and said that it had no plans to return.

The move will see Iceland, one of the world’s wealthiest nations per capita until the collapse of its banking sector last year, join Albania, Armenia and Bosnia and Herzegovina in a small band of European countries without a McDonald’s.

The FT gives some background on why the environment for selling Big Macs in Iceland is so difficult:

McDonald’s blamed the closures on the “very challenging economic climate” and the “unique operational complexity” of doing business in an island nation of just 300,000 people on the edge of the Arctic Circle.  Most ingredients used by McDonald’s in Iceland are imported from Germany – leading to a doubling in costs as the krona has collapsed while the euro has strengthened.

The FT cites the Big Mac index, a purchasing power parity index for comparing the valuations of currencies based on the comparative price of a single, uniform basket of goods, in this case a Big Mac, drink, and fries (as I recall).  The Economist dreamed it up as whimsy many years ago, but it has proved oddly robust at least for certain comparisons:

Magnus Ogmundsson, managing director of Lyst, the McDonald’s franchise holder in Iceland, said that price rises of at least 20 per cent were needed to produce an acceptable profit. That would have pushed the price of a Big Mac burger well above the $5.75 it costs to buy one in Switzerland, home to the world’s most expensive McDonald’s, according to the Big Mac index.

Luckily, the local franchise owner is taking over the stores and plans to retool the menu using locally produced meat and ingredients, and rebranding under the eco-cool concept of local food production.

The New York Times reports that Congress and the administration might soon reach some kind of view on legislation for addressing “too big to fail” institutions.  Off the table is Paul Volker’s proposal to re-establish some line between commercial banking and proprietary trading — some updated Glass-Steagall demarcation.  On the table is the Treasury’s proposal to designate various institutions as “too big to fail” in various degrees and subject them to greater capital requirements, limits on risk-taking, and in addition require a so-called “living will” that would make clear how to disentangle these institutions from others in a crisis.  I think the “living will” idea is not a bad one on its own, as long as we all understand the limits of what it gets you.

Much, much more puzzling to me is this description in the Times, quoting Michael S. Barr, assistant Treasury secretary for financial institutions (italics added to show the quote):

The White House plan as outlined so far would already make it much more costly to be a large financial company whose failure would put the financial system and the economy at risk. It would force such institutions to hold more money in reserve and make it harder for them to borrow too heavily against their assets.

Setting up the equivalent of living wills for corporations, that plan would require that they come up with their own procedure to be disentangled in the event of a crisis, a plan that administration officials say ought to be made public in advance.

“These changes will impose market discipline on the largest and most interconnected companies,” said Michael S. Barr, assistant Treasury secretary for financial institutions. One of the biggest changes the plan would make, he said, is that instead of being controlled by creditors, the process is controlled by the government.

Some regulators and economists in recent weeks have suggested that the administration’s plan does not go far enough. They say that the government should consider breaking up the biggest banks and investment firms long before they fail, or at least impose strict limits on their trading activities — steps that the administration continues to reject.

The changes will “impose market discipline”?  How?  They all seem designed to make for better prudential regulation by government regulators — not a bad idea necessarily, in fact not a bad idea at all — but hardly market discipline.  As the Times says Barr says, if there is a big problem, instead of “being controlled by creditors,” the process will be “controlled by the government.” Continue reading ‘Market Discipline? What Market Discipline?’ »

If I were to sit down and sketch out in a single sentence or two each the current approaches (”theories” is way too strong for what I mean here) arguing for corporate liability in the Alien Tort Statute, what would they be?  I give it a shot as bullet points below; I welcome any additions, if you were trying to give a short but reasonably comprehensive list of litigation approaches in favor of finding corporate liability.

One thing I’ve taken away from recent informal discussions of the issue with both academics and litigators, is that the question is not settled in US courts.  Sosa left it open in footnote 20, and although I would earlier have described the leading circuit cases as having accepted the idea, I came away from these various discussions with a sense that it is more open to a change in direction than I thought — and that, even absent a new Supreme Court ruling on the matter.  My sense after the latest Talisman was that US courts had more or less accepted corporate liability under the ATS, signing on to an accumulation of precedents without signing onto a theory of why.  Reining in ATS liability, insofar as they were inclined to do it, would come either as limits on what substantive acts would count or else, as in the 2nd Circuit’s latest Talisman ruling, as limits on secondary liability.  But I came away from recent discussions with a fairly inchoate sense — not a clear set of reasons — that the corporate liability issue itself was not so settled as I might have thought.

Whether that is so or not, it made me think that having some bullet point list in my head of the main lines of argument in favor of corporate liability was a useful exercise.  Feel free to add any more you like in the comments.  The reason I stress here arguments in favor is that, as someone who thinks this is not the case, it is harder for me to think of the arguments for corporate liability.  The arguments against corporate liability seem to be mostly variants of saying, the ATS requires as a threshold matter that there be a violation of international law.  Corporations are not things that are capable of violating international law, and there can’t be a violation without a violator upon which law imposes liability; hence no violation of international law and no US action in tort.

The principal way of complicating this as an argument against corporate liability is to say, in addition:  There are two hurdles to finding an international law violation — two axes, if you like:

• You have to make the move from individual to corporate liability.
• Separate and independently, you have to make the move from criminal law to civil law.

Neither one of these, continues the argument, is well founded in international law, and you have to satisfy each in order to show an international law violation.  (Represented as a diagram, the two axes produce four quadrants and it’s fun to frame it that way, but I’ve not managed to figure out how to do graphs like that on Wordpress.)

One might disagree with those axes, of course, but they are what I think I see in defense arguments (including, full disclosure, my own expert declaration in the Agent Orange case) and defense-side expert statements, at least disaggregating a bit.  There is then a long debate over what to take as constituting “international law” and evidence thereof, but leave that aside.  That said as the basis of anti-corporate liability arguments, what’s the summary list of pro-corporate liability arguments?

• One. Determine that international law allows for corporate liability “straight up” (Steve Ratner, Jordan Paust, and Ralph Steinhardt, et al. are right; Christopher Greenwood and James Crawford (in their politely skeptical Talisman defense-side affidavits) are wrong).
• Two.  Find corporate liability but only for a certain “threshold” set of really bad things — the Edwards approach early on in ATS litigation, which I understand to be now overtaken by holdings and newer theories.
• Three.  Determine that international law allows corporate liability because there is some amount of private liability in international law, and if there is for private individuals, then entity liability can be inferred for private actors (Talisman lower court approach). This approach depends somewhat on a further assumption that if  corporate liability is not affirmatively ruled out, then it is okay for a court to read it in if it finds it reasonable, a little bit like a gap filler argument.
• Four.  Determine that whether international law allows for corporate liability or not, the fact that US tort law allows for corporate liability is enough for an ATS case.  Once you have the international law violation, the fact of the acts is enough to satisfy the international law prong of the ATS, and then everything else, including who or what is liable, becomes a matter of US domestic civil law (with several variations, looking to federal common law or something else, but leaving aside those complications).  This makes corporate liability the “hinge” that “swings” between the international law prong of the ATS and the US domestic law prong in tort.  The objection is what I already noted above, the “acts” are only a “violation of international law” insofar as they are committed by something or someone legally capable of violating international law.  (This is roughly the approach of Judge Weinstein in Agent Orange; yes, he acknowledged, there is doubt under international law as to whether there is corporate liability, but for purposes of ATS litigation, it doesn’t matter.  It exists under US law and this is US litigation and it would be inconceivable not to have entity liability, as Judge Weinstein bluntly put it.)
• Five.  Determine that US precedents have already answered the question affirmatively, rightly or wrongly, so enough already, let’s get on with it (approximately Judge Schwartz’s approach in lower Talisman, saying that no one had pointed to any US precedent ruling out corporate liability, so on with things, or the 2nd Circuit’s latest Talisman latest opinion, ‘we here assume corporate liability’, on to aiding and abetting).  (I paraphrase in all these characterizations.)
• Six.  Inferring corporate liability backwards from aiding and abetting secondary liability.  This is an approach I do not think I have yet seen in the cases — possibly because I missed it or possibly because it seems too far-fetched — is to get to corporate liability from secondary liability.  The usual order is to say, you have to get corporate liability in order to identify something that can aid and abet; it is logically prior.  But you could reverse it, and instead argue that if secondary liability is an accepted premise, then whatever aided and abetted must, by tacit premise, be capable of being liable, hence, liability for corporations.  This is subject to the objection raised above that in order to have a “violation” and not just bad acts, there must be a violator in virtue of being something legally capable of violating — and this presumably would be no less true of aiding and abetting.  But if you accept the idea of inferring to fill a gap in liability, then I suppose you could argue that whatever aids and abets is presumed to be capable of being a violator and hence corporate liability.

If you would propose other lines arguing for corporate liability, feel free to enter them in the comments.  I’m less interested in this post in the counter-arguments to the anti-corporate liability position; I’m trying to get a handle in short form on the affirmative arguments for.  (Plus, I’m in an affirmative, highly positive state of mind! I’m writing off the top of my head, sitting in the bright sunshine outdoors at HLS this morning, hanging out before going back to DC; I could easily have left lots out of this discussion.  LIstening to bass viol suites by Sainte-Colombe.  Drinking super-expensive coffee and eating chocolate.  Yeah, I’m burning out brain cells as I type.  If Cambridge were like this every day, it would be … Palo Alto.  What a beautiful bright fall day here, after a day of rain!)

(Update:  Thanks to SCOTUSblog for the link, and yes, as has been pointed out, the sun in Cambridge addled my brain — I’ve corrected the count from five to six.)

My Opinio Juris colleague Chris Borgen has a post up commenting on a new paper by Richard Bilder on SSRN on legal issues involved in mining for Helium 3 on the Moon. The paper, which I’ve just read while on a plane, is fascinating, and Chris provides an excellent introduction to it (go there if you’d like to comment):

In addition to the idea of using helium-3  for [nuclear fusion] power on earth, it is also one of the most commonly posited potential fuel sources for crewed spacecraft to the asteroid belt and outer planets. This would open the belt up to the possibility of asteroid mining (if that turns out to be economically feasible) as well as crewed scientific exploration of the outer solar system. Bilder sets out various options including ratifying the present Moon Agreement, establishing an international lunar resource regime outside of the framework of the Moon Agreement, and setting up either an international organization or some other enterprise for mining lunar helium-3.

Underlying this is his argument that significant public or private investment in helium-3 mining would be predicated on a stable legal regime concerning the property and ownership issues of mined lunar resources. Thus, he argues, it is in the U.S.’s interest to take part in the construction of a lunar resource regime (be it treaty, international organization, or other policy option) sooner, rather than later.

One proposal for addressing too big to fail, or to systemically interconnected to fail, among financial institutions is to separate out the proprietary trading and other “casino” activities from the “utilities” business of commercial banking with the public.  In some ways (not all) it is a revival of the Glass-Steagall approach.  Paul Volker has urged such a policy, as have others.  The Obama administration has not so far shown any appetite for such it, preferring, in its Treasury blueprint for reform, to allow the functional interconnections within holding company structures, and identifying institutions that are regarded as too big or too systemically interconnected to fail and apply “regulation and last resort lending” to apply to them.

Something like the same debate is taking place in Britain, and the Financial Times’s Martin Wolf makes a comment on why one could see the functional separation desirable, but also why it is hard to do and hard to ensure that it actually reduces the systemic risk.  In response to a recent speech by Mervyn King of the Bank of England calling to separate out the “casinos” from the “utilities,” Wolf says:

it is evident why this distinction is appealing. If we define the utility parts of the financial system narrowly, as management of the payment system, it works like clockwork. It is in the management of risk (and the advice given to its clients) that the financial system fails. The limited liability businesses at the heart of our credit-based monetary system have a tendency to mismanage risk (and uncertainty), with devastating results.

However, he ultimately says that he is unpersuaded that a modernized form of Glass-Steagall can work as a structural solution to systemic risk:

Yet I remain unpersuaded that the structural solution – the separation of utility from casino finance – is workable, as I pointed out in a column on the “narrow banking” proposal of my colleague, John Kay. Indeed, Mr King himself is well aware of the difficulties.

First, the border between utility and casino banking is impossible to draw. For Mr Kay, the utility is the payment system and protection of deposits. This would leave all lending – including to households and businesses – inside the casino. For those in the US who hark back to the Glass-Steagall Act, the distinction is between commercial and riskier investment banking.

Mr Kay’s distinction is clear, but problematic. If we followed him, all risk management would become unregulated. It is inconceivable that governments would, or could, leave them so. If we moved back to a Glass-Steagall distinction (itself never accepted in continental Europe), we would need to draw a line. But where? Why would lending to households and business be good, but securitising those loans bad? Why would hedging be good, but speculating bad and how might one draw the line between them? Mr King counters that prudential regulation already draws such distinctions. I would respond that regulation has made a mess in doing so. Furthermore, these are not distinctions between businesses.

This is not to argue that there is no way of making finance safe. There is. But it would be far more radical: deposits would be 100 per cent reserve backed; and the liabilities of other investment vehicles would be adjusted for the market value of their assets at all times. Banking would disappear.

Short of such radicalism, we must approach the task in a more subtle manner. First, create a set of laws and institutions that make it possible to bankrupt any and all institutions, even in a crisis. Second, make financial institutions safer, with much higher capital requirements, against all activities. Third, prevent off-balance-sheet activities. Fourth, impose dynamic provisioning. Fifth, require huge cushions of contingent capital. Finally, cease to favour debt-finance, throughout the economy.

If we did all this, the world of finance would be duller and safer. It would still not have the reliability of jet engines. So long as we allow people to make leveraged bets on the future, breakdowns will occur. The division of finance into utility and casino cannot solve this problem. Only the end of leverage would do so. Do we want that? I doubt it.

I am still thinking through policy on this.  I am more or less persuaded that the Treasury view in the US represents a bad compromise that won’t  prevent the next crisis while stifling activities under regulation that might well turn out to have been both intrusive and yet mostly pointless.  Yet, while accepting Wolf’s criticisms of the casino-utility distinction, I question whether there is still not a role for a structural separation even if one recognizes that it does not solve all the problems of systemic interconnection of institutions via markets.  Constructive comments on the best approach to too big too fail and systemic risk welcomed.

Interesting article in the Financial Times (Thursday, October 22, 2009) by Sarah O’Connor, “Colleges confused over which jobs have been saved by the extra cash.”  Marcia Smith, associate vice-chancellor for research administration at UCLA, who leads a UCLA administrative team handling its stimulus awards

received guidance from the UC Office of the President saying she should include everyone paid by stimulus dollars, including tenured faculty members.  She was surprised, given that this appeared to clash with the government’s definition of a “retained” job as “an existing position that would not have been continued were it not for [stimulus] funding”.  But it did avoid a very sticky problem: how can you know for sure whether a job would have disappeared were it not for stimulus money?

If you were a tenured professor who happened to receive stimulus dollars as part of work on some research project, then your job, on this guidance, was counted as “created or saved.” Many universities, says the article, are “including tenured academics in their ‘jobs created and saved’ numbers even though their jobs were already guaranteed for life.”

While “many universities,” according to the article, including UCLA, simply decided to count everyone who is paid through a stimulus grant, in accordance with the formula, others “have excluded tenured academics from their data, after taking legal advice, amid what they say was a lack of clarity from the government on how to deal with the issue.”

... As Mickey Kaus puts it.  This kind of thing is enough to remind me why, despite the fact that I consider it a beginning point rather than necessarily always the end point, I am fundamentally a libertarian.

We have ways of making you stress-free: Someone should write the fictionalized dystopian nightmare of mandatory “wellness” programs foreshadowed in Sen. Ensign’s business backed plan to let insurers penalize even those who seek non–employer-based health coverage if they don’t participate in healthy life regimens.”  Like THX 1138, but with brownies. ... Nineteen-Eighty-Fat! ... Ensign says his plan “would guarantee that the incentive is strong enough for Americans to want to participate.” ... Next: Marital fidelity incentives!

Patrick Cronin over at Facebook points to a new review essay from Edward Luttwak in the latest Times Literary Supplement, but unfortunately not up online.  (I subscribe but apparently Patrick gets this stuff a lot faster than I do.)  However, Patrick posted a couple of paragraphs.  Luttwak reviews David Kilcullen’s widely noticed book among several others, and apparently argues (from the bits I’ve seen) that counter-insurgency warfare (clear and hold, etc.) in Afghanistan is a mistake, and argues instead for raiding strategies using small teams of Special Forces, special ops, Predators and drones, and so on.  I will post a link to the full article if the TLS puts it up.  However, here is a bit taken from Patrick’s note on FB:

“Obama will soon learn how even small wars can drain all the oxygen from a presidency.”... “For there is is a far superior alternative to the occupation of worthless places at very great cost in policy attention as well as in dead soldiers and money: surveillance to detect gathering threats...followed by ground, air or naval raids to destroy them. Raiding is far more economical than counter-insurgency, if only because it requires intermittent action, and is eminently suitable for Afghanistan....”

I don’t take a position here regarding whether strategy in Afghanistan should shift from counterinsurgency to counterterrorism in the sense that Luttwak means it above.  That’s a big discussion, particularly without reading the whole Luttwak piece first.  There are several complicated possibilities, especially when Afghanistan and Pakistan are each considered:  among them are surge and counterinsurgency on the Iraq model, or using a raiding strategy as Luttwak describes above, or a combination (which is one way of looking at this current move by the Pakistani army, as well as the Swat Valley operations; massive artillery lead assaults against whole regions that also had the effect of making various AQ and Taliban targets more susceptible to Predator strikes). 

Whichever of these strategies one might favor, however, all of them feature increased use and reliance upon targeted killing, via Predator, via special ops, etc.  If you propose to do counterinsurgency on the surge model, you will use clear and hold in combination with raiding strategies as enemy leadership is flushed out.  If you are backing away from counterinsurgency, and following Luttwak’s strategy above, you are also looking primarily to these raiding methods.  Even without taking a view on the correct strategy, targeted killing is a featured and growing part of any of them.

Continue reading ‘Raiding Strategies with Predators’ »

My Opinio Juris colleague Julian Ku noted there a few days ago that Bloomberg had reported that the Obama administration is considering plans to modify or end the Bush doctrine on preemptive use of military force:

The Pentagon is reviewing the Bush administration’s doctrine of preemptive military strikes with an eye to modifying or possibly ending it.

The international environment is “more complex” than when President George W. Bush announced the policy in 2002, Kathleen Hicks, the Defense Department’s deputy undersecretary for strategy, said in an interview. “We’d really like to update our use-of-force doctrine to start to take account for that.”

Meanwhile, in Moscow, while Secretary of State Clinton was getting a rather brusque treatment, reports appeared that Russia was endorsing not just preemptive use of military force — but even preemptive use of nuclear weapons, and that even in local or regional wars.  As a Washington Times column summed up the reports:

The Russians succeeded in putting Mr. Obama and the Americans in their place. Nikolai Patrushev, the chief of the Presidential Security Council, manufactured an occasion while Mrs. Clinton was in Moscow to warn that Moscow reserves the right to make “a pre-emptive nuclear strike” against both small and large enemies.

In an interview with Izvestia, the important Moscow daily, he said Russian officials are examining “a variety of possibilities for using nuclear force, depending on the situation and the intentions of the possible opponent.” In situations critical to national security, he said, “options including a preventative nuclear strike on the aggressor are not excluded.” Even regional or “local” wars will be included in the new strategy, expected to be official policy in December.

Peter Berkowitz takes up the argument over Yale and, by extension, the rest of the American academy, concerning Yale University Press’s shameful censorship of a book on the Muhammed cartoons — with his usual careful argumentation and coherence.  Kudos to Peter; here in the WSJ.

If the boys don’t stand to benefit from the vaccine, then are we making boys into The Island? Well, that’s an awfully inflammatory way to start out, I grant you.  Here’s another inflammatory way to start out ... would forcing boys to be vaccinated against their will but without any medical benefit to them, with the benefits accruing instead to girls, violate Roe v Wade? Our boy-bodies, ourboyselves?  For that matter, should pre-teen girls be forced to be Nudgily inoculated because their parents systematically underestimate the extent to which they will engage in sexual activity and have a tendency to acquire the disease?  Something here to offend almost everyone in this debate, if one takes it very far down to fundamentals.

Update: Thanks, Glenn, for the Instalanche! While I am thinking of this, please note that I am not the Dr. Kenneth Anderson, MD, Harvard Medical School, who is a real expert on vaccines and viruses and appears to have done some interviews and other media stuff on Gardasil.  I gather from a couple of comments that I have either tried some readers’ patience or else exceeded their attention spans.  There is not a lot of careful organization of this post, because I inserted paragraphs in between editing something unrelated; this is not my day job.  However, to the extent there is a structure, it is this:

• (a) Opening that you might find clever or not, but is designed to raise at least three multiple, indeed really different, ways in which mandatory vaccinations of either all girls, or all boys, or all girls and boys, with Gardasil could raise liberty and rights issues.
• (b) A short mention of what Gardasil is and why it was controversial back in 2006 when it was introduced, for those who haven’t closely followed it.
• (c) An introduction to the current issue, which is the introduction of Gardasil as safe for boys for genital warts which, according to the WSJ news article, are rare and not a big deal (I gather from comments that readers dispute this factual claim), whereas the true reason for vaccinating boys is for the benefit of girls.
• (d)  A discussion of the general issue of mandatory vaccination and why it is ethically justified for everyone who would benefit from what amounts to social insurance, and the wickedness of free riding, both as its own ethically bad thing as well as for the extra social social harms it causes by undermining the “herd immunity.”
• (e)  A discussion of the special case of religious claims for exemption from mandatory vaccination which are also free-riding, and my undefended (because arising from another kind of argument) claim that we should no longer allow religious claims of exemption.
• (f)  A shift in discussion from the general justification, even on libertarian grounds, for mandatory vaccination that benefits everyone to the special case of Gardasil, if one accepts the factual premise that it only benefits the girls, and not the boys.
• (g) An argument that requiring the boys to be vaccinated in that case violates their rights, and uses them merely as means to other social ends of social utility.
• (h) Consideration of a possible real-world counterexample in the form of other cases where we use a non-benefiting pool to benefit another group — rubella vaccinations; my suggestion is that it is not a good analogy.
• (i) A final (undefended) claim that we would not be discussing this at all if the situation were flipped, and we were talking about mandatory vaccination of girls to prevent testicular cancers.
• (j)  Then some side remarks, including a comment that one need not look at this from either a strong utilitarian or strong rights-based view; one might, for example, adopt views from Catholic social thought on the doctrine of love in the commonweal.

It might well be that the facts are different from what the WSJ news story quoted below suggests; in that case read this as a hypothetical around the question of whether it is permissible to require mandatory vaccination of one group in order to benefit another.  Several commenters have stated that men, gay men particularly, are at much greater cancer risk than the article says, for example.  I make no claim to being a doctor or public health specialist or expert in the facts of these medical issues.  So:

Gardasil is a vaccine against the sexually transmitted HPV virus that is a leading cause of cervical cancer in women.  It was approved by the FDA for use in women in 2006.

Approval was not without some controversy in 2006 — arguments over whether the manufacturer had overstated the extent and variety of protection, and whether the manufacturer’s massive spending on promoting the vaccine to health officials had shifted public officials’ objective judgment about safety and effectiveness.  There were independently arguments over the high monetary cost of the vaccine and its administration in relation to benefits.  This discussion skips over the monetary cost issues, the ethics of Merck’s campaign, and similar “money” issues.  However, this WSJ article describes that 2006 controversy this way:

After the FDA approved Gardasil’s use for girls and young women in 2006, the vaccine’s maker, Merck & Co., was criticized for lobbying aggressively to get states to make inoculation a requirement for pre-teenage girls. Its high price — $390 for the three-dose regimen — also came under attack ...  The FDA ruling on Gardasil came the same day that the agency approved a rival vaccine designed to protect against cervical cancer in women. GlaxoSmithKline PLC’s Cervarix vaccine was approved for use in girls and women ages 10 to 25 ...  While Cervarix, like Gardasil, protects against two HPV strains that are linked to about 70% of cervical-cancer cases in the U.S., the Cervarix vaccine doesn’t offer protection against the HPV strains that can cause genital warts.

I mention the 2006 controversy this despite having had a daughter get the vaccine; my wife and I thought it pretty clear that if you were a girl, the benefits outweighed the risks heavily even if it didn’t prevent against every form.  (And I mention this personal item because I don’t want anyone to think that I’m actually simply covertly opposed to vaccination, or to brand-new vaccines, etc.  I’m not, and whatever your views on that, I’m coming here from a standpoint of being perfectly comfortable with vaccination and, as discussed below, very willing to make vaccinations mandatory — and think it consistent with a generally libertarian outlook.) At least as the pediatrician explained it, for it to make a substantial difference, it needed to be given early on in adolescence, which, put more directly, before a girl became sexually active and might acquire the virus.  (Experts out there — and I am not one and only followed this via our pediatrician — can correct any of this.)

What’s new?  The vaccine has just now been approved for use in boys as well.  As the same Wall Street Journal story notes, there is controversy over whether boys ought to be vaccinated, whether there should be mandatory public health vaccination of boys, and whether there is a medical ethics question involved.  The controversy comes down to whether the vaccine benefits boys in any way except very minimally (fewer than 1% get the non-threatening genital warts, and of course none get cervical cancer).

Continue reading ‘Gardasil Vaccinations for Boys?’ »

According to Tina Brown, they are — in an interview in today’s Financial Times about her website, The Daily Beast.  This is an elliptical addition to Eugene’s posts about e-books and new legal book technologies.

I’m sure many legal academics, myself included, have wondered how, along the way in the last couple of years, things seemed to shift so that no one seems to read one’s academic articles anymore.  Our legal academic audience, in my highly anecdotal take, seems to want to read either blog posts or books.  I’m not quite sure why this is, but I Sense This In The AcademicoSphere.

Here is Tina Brown on the topic of websites, magazines, and books.  It’s quite a good interview on the founding and progress of the Daily Beast.

Given her record, it is startling when [Tina Brown] announces that she sees no future for long-form magazine pieces “of the old kind”, outside the pages of The New Yorker, The Atlantic and Vanity Fair, and proclaims that “books are the new magazines”.

However, Daily Beast writers are to be encouraged to “exercise their narrative journalism muscles” through a tie-up with Perseus Books to produce books of no more than 50,000 words.

“People’s time spans are so short, they either want a short ‘nerve centre’ piece immediately, or they want a short book they can read on a plane,” she says. “A lot of stuff about the [financial] meltdown I would have liked to be marinated over three or four months, but I didn’t want to wait a year and a half.”

The model, which will be tested in January with a book by John Avlon called Attack of the Wingnuts , will be to launch e-books for Amazon’s Kindle or Sony’s Reader, and then to print paperbacks for titles that have sold well.

Harvard Law School is hosting in a couple of weeks what is certain to be a very interesting small conference on the Alien Tort Statute.  I was lucky enough to be one of the invitees, addressing the issue of corporate liability under the ATS.  I address the issue of corporate liability under the ATS, but am actually interested in it from a broader perspective, the “jurisprudential” perspective on the distinct and sharply divided “communities of interpretive authority” over such issues in the ATS as the status of corporate liability.  I have written elsewhere recently (in the European Journal of International Law; I think a link directly to the paper in this post here) of the “fragmentation of communities of interpretation and authority” in international law.  The ATS seems to me to offer a striking example of that.

Corporate liability can be thought of as a “hinge” issue in ATS jurisprudence — a “hinge” that under (an amalgamated reading of) current holdings serves to link “international law” to “domestic law,” as required by the two parts of the ATS.  I don’t think it is at all a correct reading of either international law or domestic law, but it seems to me an (arguably) accurate reading (there are always variations and cross-currents) of current cases and their holdings on corporate liability, including, for example, the latest Talisman ruling from the Second Circuit.

In addition to that, however, I conclude the paper (this is still in first draft, believe me) with a speculation about whether the case law developing around corporate liability in the ATS will remain stable in a world in which the US chooses decline and allows the emergence of a genuinely multipolar world, a world in which China is a much, much bigger player, as in creditor and debtor:

I do not think, however, that the final chapter has been written on corporate liability under the ATS.  In the real world, I do not think that the pushback has begun to be felt in the US or in US courts.  At that point, I suspect that some will wonder whether (from the standpoint of the ‘progressive integrity’ of international law, the perspective I am freely (and perhaps overly-imaginatively) attributing to a Professor Greenwood or Crawford on the basis of their Talisman declarations, not from a vastly more skeptical position such as my own) the jurisprudence of the ATS has not actually undermined a systematic development of international law norms with respect to civil liability, tort liability, corporate liability, and specific bodies of norms such as labor or the environment.  The future historian of international law might well conclude that the era of ATS jurisprudence, far from advancing broadly shared norms, actually undermined the possibility of firmly enacting them, in what turned out to be a final gasp of US legal hegemony, before the Era of US Indebtedness, ‘Choosing Decline’, and Multipolarity set in.

What happens, for example, when ATS suits start to be brought against Chinese corporations, for actions having no connection to the US save for the ATS itself?  For very, very serious, uncontestable even abuses of labor, land, environment and other things in, say, Africa.  The strictly legal questions would have been long settled under the jurisprudence of the ATS in lawsuits against MNCs based out of the US itself, Europe, Canada, or elsewhere in the industrialized democratic world (and whether those countries liked it or not).  What happens then?  The US government has taken a remarkably hands off attitude toward such litigation, under presidents of both parties – offering statements of interest on occasion, but not typically seeking, on some principled basis, simply to nip such litigation in the bud, rigorously and in every case in which there is no greater traditional jurisdictional base of the United States apart from the ATS itself, as contrary to the foreign policy interests or prerogatives of the political branches.

Were China to weigh in, down the road, in a world of a debtor US, would the rules being made today remain stable?  I have my doubts.  I raise China as the most obvious real-politik example of a party that might have both the means and the inclination to make its displeasure known by rattling, even just a bit, the debtor’s chains in the global market of Treasury debt.  What the might the US government, for example, say in a statement of interest to a court, in response to a court following well-established ATS precedents of corporate and secondary liability, but this time in a case against a Chinese corporation, in the world as newly defined by Secretary of State Clinton in one of her early statements – declining in particular to get too worked up about human rights as central to the US relationship with China?

The rules currently being evolved by US courts, departing from norms as understood by much of the rest of the world, seem to me rules of corporate liability made for a world in which the “universal” and the “international” can be imagined to be enacted through the ATS – mostly, however, because there is still an American hegemony.  One can call that hegemony “universal” and “international,” I suppose – provided, however, that one cloisters oneself as strictly as possible within those particular communities of authoritative legal interpretation in which ‘universal’ and ‘hegemonic’ categories do not brush up against each other and catch each other out.  Ironies and antinomies of the ATS, yet again.

(Cross-posted to Opinio Juris.)

I’m pleased to note that Glenn Reynolds and I have a new short opinion piece up at Forbes.com,“Bombing the Moon.”  It takes the hook of the LCROSS mission last week to shift gears from explosions on the Moon to … orbital war on satellites.

We applaud an Obama administration initiative to try and get ahead of the issue, but also point out the rogue state-shooting-at-space problem with diplomatic initiatives.  Here’s a short bit:

The LCROSS mission is an important and expensive scientific experiment. Nonetheless, comments on Web sites such as Scientific American and Nature indicate that quite a few people thought the whole venture to be some sort of outer-space vandalism. Some even wondered whether NASA might have acted illegally or violated an international law or treaty by setting out to “bomb the Moon” … The answer is no.

[T]oday the leading threat is to global communications and control of instruments crucial to economic and social systems, by means of weapons aimed against satellites. Nor does the threat necessarily require any specially designed weapon; satellites are horribly delicate and unprotected against kinetic force, and essentially anything with an engine and some maneuverability, including other satellites present for otherwise ordinary and nonthreatening uses, can create a threat to them. Think IEDs (improvised explosive devices) in space.

The Wall Street Journal has a new story from over the weekend on Democratic proposals, in Congress and the administration and from outside groups, to impose a tax on financial transactions (John D. McKinnon, Democrats Weigh Tax on Financial Transactions, WSJ, October 10, 2009):

Taxing financial transactions on Wall Street is gathering support in high places.

With federal budget deficits soaring, policy makers and other advocates are eyeing the huge sums that could be raised as a way to cover the costs of new initiatives.

Labor unions, in particular the AFL-CIO, have proposed a financial-transactions tax as a way to defray costs of a health-care overhaul. Lawmakers have discussed a similar fee as a way to cover the cost of future financial oversight. Liberal advocates are pushing the tax to pay for new stimulus spending.

Financial transactions taxes, whether on the US domestic level or the often-proposed international “Tobin tax,” are sometimes described simply as broad based revenue raisers, and sometimes described as ways of deliberately slowing down the movement and flow of capital.  As a revenue raiser, one current proposal operates this way:

This week, the left-leaning Economic Policy Institute floated the idea of a national transaction tax that would raise $100 billion to $150 billion a year. The tax, at a rate of 0.1% to 0.25% of the value of the trade, would be levied on all financial transactions such as stock trades, but not on consumer transactions such as with credit cards.

The money would be used initially to pay for temporary aid to states, hiring incentives for public– and private-sector employers and school construction money.

“We are in a difficult time right now, so people are looking at every opportunity to gain some revenue to fund” new initiatives, said Rep. Stephen Lynch (D., Mass.), a member of the House Financial Services Committee. “Because I was one of the first to suggest using this to fund [new] regulatory infrastructure, folks have come to me and said, ‘That’s a good idea; I’ve got a better one: Why don’t we use it for stimulus or especially health care?’”

One Democratic aide said the idea is under consideration among House leadership, though the discussions are preliminary.

It does sound like a dandy, relatively hidden revenue raiser — one that could generate vast sums of money relatively unnoticed, at least among ultimate ordinary consumers and taxpayers, who will not notice the long-term, collective hit to their pension funds and retirement funds which, anyway, they often do not directly manage.  However, taxing at the front end is generally considered more distorting than taxing at the back end, and a tax on simply engaging in transactions themselves is almost certainly more distorting, other things being equal, than a tax on the final net economic transaction.  Certainly less transparent to those who ultimately bear the tax.  And of course there are many questions of where the incidence of tax falls — after all, a huge percentage of these transactions involve people’s retirement funds, long term savings, pension plans, including those of the unions.  It is not just a bunch of plutocrats sitting around trading their stocks and bonds.

Hence a bit of bait and switch — when that point is raised, then the defense is offered that, well, after all, it is independently a good thing to slow down and make more expensive capital market transactions.  Capital flows too quickly and too fluidly as is, on this view; it needs to be slowed down, for its own sake, quite apart from the revenue raising.  The sand in the wheels of commerce is a good thing because the flow of funds is, if not precisely too efficient, then too volatile.  This was an argument heard particularly in the 1990s with respect to the global capital markets, around the various currency crises, the Mexican peso crisis of the early 1990s or the Asian crisis of the later 90s.  Of course, another bit of bait and switch was going on in those arguments as well — many of the Tobin tax supporters presented this as a desirable distortion of incentives, but actually were interested in the revenue, proposed as a way of funding international organizations starting with the UN.

Sometimes the transactions tax is coupled with the idea of exempting transactions that favor holding for some period of time — an anti-volatility, anti-rapid-turnover kind of rule; sometimes it is suggested that this will spare long-term retirement savings from the burden of the tax.  The problem is that the distortionary effects are not easily separated that way; the effects of economic distortion are not the same as the question of who pays the direct transaction tax.  The economic distortions are far less about whether I pay such taxes on my relatively infrequent trades in my retirement account and much more about whether the market as a whole is less efficient and so reduces the long run growth and value of my retirement account indirectly, irrespective of whether I, individually and directly, pay much in the way of the transactions taxes.

According to the article, leading Democrats such as Barney Frank are open to the idea.  The revenue needs, it seems, will be insatiable, and the distortions something like the indirect, hard to pin down, long-run effects of inflation.  But in the case of a domestic US transactions tax, of course there is something else to worry about.  There is no reason why financial transactions have to remain in American markets.  Other than efficiency, liquidity, depth, interconnectedness among financial markets, security, relatively good corporate and regulatory governance, transparency, low transaction costs, the neutral application of the rule of law to all comers.  Yes, the United States offers all those things, but it does not have a monopoly of them, obviously.  London offers all of that.  So do other places — mainland China does not, as yet, but Singapore does, and other places in the world.

Hard as it might be to imagine financial market transactions migrating from the US elsewhere, it has happened to many financial centers in the past and can happen to the US in the future.  The US has huge accumulated advantages in these areas, many of which are social, institutional, and political-legal cultural benefits that seem immutable and free-standing.   On the other hand, automotive Detroit seemed immutable and free-standing and the beneficiary of all those advantages for decades and decades — its political class decided to eat its seed corn, so to speak, and even once it was obvious where it was heading, decided to go with the flow and double-down the bet on ‘other taxpayers’ money’.  Maybe it will (continue to) work out for the best for the UAW and its labor allies, at the expense of the rest, but there are limits to even what the current administration can do for it.

This is not a declinist prediction.  It doesn’t have to be this way.  It is, rather, to observe that for the US now, actions to promote US decline are decisions taken today by the political class.  Decline-inducing decisions include making the US less attractive as a capital market center and leader, making transactions more expensive in order to favor current spending.

Does a complex welfare state need taxes?  Sure.  Transparent, widely shared, everybody pays something and everyone can see what they pay, so that everyone has a stake in the extent of taxing and spending, as visible and little distortionary as possible.  Thus almost the opposite direction to where the US tax code has drifted since the 1986 reform and even more so to where current proposals aim to go.  They tend to increase the rent-seeking possibilities of the political class and its ability to ‘get the juice’ from economic actors who must navigate the artificial shoals of regulations that aim to benefit particular constituencies and particular politicians.  VAT taxes flunk the transparency requirement, as do turnover taxes of this kind.  That is, of course, one reason why politicians love them.

I’ve posted before about targeted killing, and written about it for publication, as well.  I’ll be on NPR’s All Things Considered today, in a story by correspondent Ari Shapiro, talking about targeted killings in relation to detention and interrogation.  (Now that I’ve seen the story, I see with pleasure that it also quotes Matthew Waxman, Vijay Padmanabhan, John Bellinger, and Monica Hakimi.  Cool lineup.)  My point is pretty straightforward — uncertainties in detention and interrogation policies, particularly for mid-level operatives in the CIA and intelligence agencies, partly created by the courts and partly created by other actors such as DOJ, have increased the incentives to kill rather than capture.  Not always by use of Predator missiles, as the Somalia raid using helicopters firing on a vehicle a few weeks ago pointed up, but an incentive to kill from a distance rather than seek to capture and interrogate for intelligence value.  I haven’t heard the story, which was pre-taped, but I have a high opinion of Ari Shapiro as a journalist, and I’m sure that apart from whatever little bit is my part of the story, there’s good stuff there.  But anyway there’s a link to it and a snippet at the NPR blog.  (Cross-posted to OJ and CTLab.)

I’m considering submitting two new course proposals to our curriculum committee at our law school here in DC.  I’d be grateful for your pedagogical advice.

One would be a reading-research seminar in law and economics on the current state of debate over the Efficient Market Hypothesis.  I imagine we would read some standard economics articles and material running back over the last few decades, including classics like A Random Walk Down Wall Street, but also a couple of recent books on the debate, including Justin Fox’s The Myth of the Rational Market, and perhaps Dick Posner’s book, among other things.   One specifically law school connection would be to help students understand how the theory underpins much regulation, how courts view cases, many parts of the law itself.

The second class would be on financial derivatives, considered as contracts.  We already have a class on derivative regulation at my school — this would be a class specifically on the contracts themselves, and the economic context in which the derivatives are used.

Would those seem like useful seminar courses for business law students in their third year of law school?  Or yet another example of professor doing what interests him without much attention as to pedagogical utility?  We are a solid mid tier school, in DC; many, many of our students go into government regulatory agencies dealing with the economy.

The Obama UN speeches and appearances last week have caused some comment among conservatives along the lines of President Obama simply wanting the US to be ‘one among the guys’ of nations.  Andrew Ferguson picks up this notion in his Weekly Standard commentary this week, and it’s been around other places, too, including Richard Fernandez and other commentators.  I think it’s basically right, and is one of the basic motivations behind Obama administration proclamations of of “multilateralism.”  Multilateralism — well, I suspect a number of the world’s leaders (even if not their peoples so far), both our enemies and our friends, are drawing the correct conclusion that, to the Obama administration, it means ... to lay down the burdens, mouth the same words as everyone else, and quit having to bear the costs of providing the essentials of the global security system.  Go along, get along.  Iran might force a change of direction, but quite possibly not.

I’ve been talking about this for quite a while, in alas unread academic papers that languish in backwaters of the internet (SSRN, I mean), so you’ll just have to forgive me for quoting myself.  Note to everyone:  As with all my prose, the full papers are well worth reading.  Also a review-essay on the history of the United Nations that appeared in an excellent literary review, La Revista de Libros which, while very well circulated and the publisher of some of the finest literary prose in the contemporary Spanish language, does, however, publish out of Madrid and in Spanish:

Be wary, O Europe, above all, of liberal internationalist Americans bearing gifts of multilateralism.  An America that does not assert, rudely and brusquely, its own interests and views first through Nato and elsewhere, an America that sings sweet songs of multilateral interdependence is, surely, a superpower that has decided to simply go along with what everyone else does, which is another way of saying it has tired of supporting the free riders, which is another way of saying that it, too, says one thing but might do another, and what it might do is not show up when the big battalions are finally needed.

Prudent Europeans fear and do not trust, above all, an America that does not put its own interests first and carry the rest along in train.  Re-read Raymond Aron.  Europe will soon enough face an Iranian nuclear weapon along with its massive dependence upon Russian natural gas, even as its military strength declines yearly – hourly – and in important respects it is today at least arguably more dependent on the American security guarantee, not less, than at any time since 1990.

The broader point being that for all the talk about UN collective security, the reason anyone even talks about it is that it is, for much of the world, a fifth wheel on a broad, US security guarantee.  If you are European states, you can talk about UN collective security because you don’t need it and it isn’t truly your security guarantor.

Continue reading ‘They Made a Multilateralism and Called It Peace’ »

Deborah Pearlstein has an important response to Ben Wittes’s Washington Post op-ed on the Obama administration and detention policy, cross posted at Opinio Juris and Balkinization.  I continue to hold Ben’s views on this, but Deborah offers an incisive next move in the debate and it is important reading for those following this crucial topic.

Over at Opinio Juris, my co-blogger Roger Alford notes the issuance today of the Second Circuit’s “long-awaited decision of Presbyterian Church of Sudan v. Talisman Energy.”  Remarks Roger:

My initial impression of the opinion is that it creates an intent hurdle that will be extraordinarily difficult for plaintiffs to overcome. Plaintiffs must show that a corporation had the intent to assist in the violation of human rights. The Court went further and held that while “there may well be an ATS case in which a genuine issue of fact as to a defendant’s intent to aid and abet the principal could be inferred; but in this case, there were insufficient facts or circumstances suggesting that Talisman acted with the purpose to advance violations of international humanitarian law.”

If this case stands, it will be the death knell for most corporate liability claims under the Alien Tort Statute.