The Volokh Conspiracy

This paper, by University of Baltimore’s Richard W. Bourne, deserves wide attention.  I fear it won’t get it, however.  The Coming Crash in Legal Education: How We Got There, and Where We Go Now.  It is written in clear, plain, and personal language; it is factually well-informed about the roots of the impending economic crisis for law schools as well as conditions now; and Bourne has thought hard about the alternatives.  They are none of them happy and all sobering, unless, Bourne says, one happens to be sitting as a student or professor at one of the T-14 schools.  Here is the SSRN abstract:

This paper will first track the ways in which the legal services market has grown and changed over the past forty years. It will then track the major changes that have attended legal education during the same period and the increasing dependence of the legal education industry on student debt. The paper will then explore why, at long last, the boom-times may have run their course and why, at some point, painful changes will likely occur. Though they cannot be described in detail, the author will attempt to outline the likely nature of the changes that will occur. Finally, the paper will briefly explore how the predicted reckoning may yet lead to an improvement in the marketing of legal services and an enhanced role for law schools in preparing new attorneys for the new bar they will be joining.

He points out that although today’s entry level attorneys are not well-prepared for practice and this is a problem, the sorts of solutions that are proposed – more clinical education, particularly – are often prohibitively expensive.  One might produce better prepared attorneys, but that does not address either an oversupply or tuition prices leading to indebtedness that cannot be supported at the salaries that, even looking over the longer run, even the employed lawyers can support.  Something – several things – have to give.  One of them, he says, will be faculty-student ratios; and the drive for scholarship as the mission of the law school.

Although he hopes to see an undermining of the importance of the USNWR rankings, I don’t think he believes that the new metrics will actually do so.  It is true that USNWR rankings favor almost entirely increasing resources; it is, as he says, a proxy for  institutional wealth.  The rankings overwhelmingly take into account factors that raise the price of education; and of course they are pro cyclical.  That dominance is unlikely to end, however, in part because what employers seek at the end result of the process is, paradoxically, not the best trained junior lawyers – but the best talent.  Apart from a certain common core, taught pretty much by any school, employers do not so much differentiate by training as see school for as proxy for basic talent.

Employers don’t much care if I teach law and robots (which I don’t), because if they had to choose, talent over training, they choose talent, or at least their marker for perceiving it, any day over training.  That marker is irrespective of any big value-added from law school in other words. “Law school” adds a certain basic value in training lawyers, but that is actually about the same across schools, and what separates the schools is who walked in the door in the first place, as reflected in LSAT scores particularly.  I suspect most professors think the same way as the employers do, more so the more elite the school; whether their perception of their students is accurate, however, it does provide a ready-made reason not to worry overmuch about how well one teaches.  The die was cast more or less in the genes.

I don’t think that’s quite fair to us as teachers, however; I think professors at law schools by and large take teaching seriously and the issues are more what should be taught to students.  I would indeed favor professors teaching more classes and, in many doctrinal classes, larger classes.  But we also have to understand that the law is wider and deeper, the doctrinal areas that lawyers need to know and interrelate with one another, the background disciplines that we expect them to have absorbed as practicing lawyers – all that has gotten vastly more complicated since my days in law school.  Teach students attorney skills?  The same folks demanding that are also demanding greater exposure to doctrinal law, and they’re demanding that they know something about accounting and basic business and finance, too.  Expectations of lawyers have gone up, too.  Which is one reason I find talk of making law an undergraduate degree somewhat peculiar.(And I see a number of commenters essentially arguing that lawyers don’t need to know or have formal education in much more than an undergraduate degree in law and some practical training, as is the case in many countries. That’s for another post, but I don’t think that reflects what we expect lawyers in this society and this legal system to know, and to have absorbed from other disciplines.)

Conversely, if law school does not provide very much in the way of value added; if the die was cast, as indicated by LSAT scores; then eventually students will simply skip the purchase of the education and look at their LSAT score first and see what it will buy them.  Anecdotally, I think that is happening now to some extent, despite the hope springs eternal of the young and naive.  As purchasers of the service figure out that it’s basically just sorting, they can do that themselves, and the result?  (Added: no, I don’t think the LSAT is an adequate measure of raw talent, nor does Bourne, but it is what the system has produced in the way of effects.)  Law schools, Bourne says, have lived in a bubble of good times for years, and now the reckoning is upon us.  What will it look like?  Among other things, he focuses on those schools in the first tier below the T-14:

Curtailment of the market for law schools is going to be extremely painful for many schools. The going consensus is that the truly elite schools should survive easily. As their reputations are likely to continue to draw plenty of students and their graduates are likely to be able to retain dominance in the smaller but still powerful large firm market in which entry-level salaries make paying off student loans a reasonably painless operation, truly elite schools are likely to survive if not prosper. What happens just below the elite is more subject to doubt.

Beyond the truly elite institutions, difficulties are likely to reverberate all down the law school pecking order. Many schools with strong national reputations, such as those that fill out the rest of the first tier of U.S.News’ rankings, may have great difficulties surviving in the current environment unless they engage is massive cost cutting. These schools have cost structures that rival “top ten” schools but pay for their status by raising tuition rates for the bottom half of their classes so as to afford discounted tuition and financial aid to well-credentialed students whose admission can enhance their standing in the U.S. News rankings. The shrinking number of jobs available to pay the high cost of going to one of these schools may force them to pull back from the financial aid arms race rather than pay more for what little return they will get from picking up the few top paying jobs available for schools of their rank. As their graduates fight for private employment in mid-sized firms that at least allow them to “break even,” schools in mid-tier positions will find it harder to place their graduates in even “break even” jobs without cost cutting of their own.

Recent commentators have suggested, not without justification, that a number of schools that lack high national reputations may nevertheless be able to weather the storm. Particularly well suited are schools in small, less served markets that never did bite the BigLaw apple, have modest cost structures and strong alumni bases upon which to rely.  State-supported schools, because of the lower student debt levels needed to attend and graduate, are much better off than private institutions with debt levels that are fully 50 percent higher on average.  Downsizing may not be enough.

Cassandra?  Realist?  Moralist and scold?  Your call.

Many VC readers, I know, have a keen interest in Civil War history.  Over at Lawfare, senior national security lawyer at DOD and retired Navy JAG Alan G. Kaufman – who occasionally comments here at Volokh – offers a striking review-essay of Stephen C. Neff’s 2010 book, Justice in Blue and Gray: A Legal History of the Civil War.  The book is a fine one, and the review essay also.  The review goes on to observe the ways in which the legal questions posed by the Civil War, and many of the answers then given, continue to reverberate today in our conflicts and approaches to counterterrorism.  The Civil War remains the “deeper well” of American Constitutional experience in national security.  From the opening:

[T]he American Civil War, much like the armed conflicts in which the United States remains involved since the events of 9/11, required that national security strategy and decision making operate “in the dual spheres of criminal law and belligerency.”  Today’s questions of combatant status and the fate of unlawful belligerents, debates over executive powers, controversial habeas litigation, struggles over restraints on civil liberties, executive detentions, trials of civilians before military commissions, questions of whether and when to apply domestic criminal law or the international law of war, and, of course, when does the war end and what are the attendant legal consequences – all these questions figured into the law of the Civil War.

Justice in Blue and Gray, A Legal History of the Civil War, by the eminent historian of public international law and the law of war, Stephen C. Neff, is intended as “primarily a case study of the myriad ways in which law plays an important role in a crisis of giant political and military dimensions.”  This is a work of serious history by a leading legal historian, not a thinly-veiled parable or historical roman-a-clef for the present; it offers no direct connection to our world today, except by the reader’s own inferences.  Still, this legal history offers a not-so distant mirror.  Clear and elegant in its language, understandable to the layman as well as to the lawyer, Justice in Blue and Grayshows how law in war can be used – indeed, was used – to accomplish strategic and operational war fighting objectives in a vast and bloody conflict.  To use a word Neff does not use (and a somewhat controversial word in today’s parlance), this is a study of law in the Civil War as lawfare.  It would be something of an understatement to say that these understandings – both as icon from the past but also source of live legal precedent – are entirely in play in the most recent round of speeches by the Administration’s senior legal officials seeking to explain itself and its justifications in Guantanamo detention, trials, targeted killing, and the targeted killing of Americans.  The recent speeches by Attorney General Eric Holder, DOD General Counsel Jeh Johnson, DOS Legal Adviser Harold Koh, and others can profitably be read with this book to hand.

At the level of grand strategy, all lawfare is a battle for legitimacy.  To be sure, other objectives – operational and tactical — may flow from that source, but legitimacy is always the underlying and fundamental legal objective.  Thus, for the nascent Confederacy, a key initial strategic objective was recognition as a sovereign nation state, and the potentially decisive foreign alliances, particularly with Britain, that could flow from the establishment of that legitimacy.  For the Union, an initial strategic objective was to prevent any such recognition and concomitant legitimacy.  And so the first and richest chapter of Justice in Blue and Gray discusses the legal arguments surrounding the act of secession by the southern states.  Upon the answer to these fundamental legal questions would depend not only whether the secession and a fight either to maintain it by one or to stop it by the other could be held legitimate, but also whether what followed would be law enforcement or war – and thus what measure of violence could legitimately and lawfully be taken by either side to suppress or perfect the secession.

Yesterday was a busy day in International-Foreign-Relations-Law-Land, between the Eric Holder speech on national security and targeted killing at Northwestern University and the quite unexpected announcement, noted by Co-Conspirator Jonathan below, that the Alien Tort Statute case of Kiobel will be re-argued in the Supreme Court.  Jonathan points to SCOTUSblog for details – let me add a comment from former DOS Legal Adviser John Bellinger at Lawfare:

The Court’s order may reflect that a majority or plurality of the justices would like to decide the case on the larger issue of whether the Alien Tort Statute even applies to torts committed in other countries, rather than on the narrower issue of corporate liability, and that other justices want to have more briefing on the issue, which was not addressed by the Second Circuit. As I noted in my post about last week’s oral argument, Justices Kennedy, Roberts, and Alito focused almost all of their questions on the diplomatic tensions and problems under international law caused by extraterritorial application of the ATS. This was also the issue that I addressed in my own amicus brief, and that was the focus of the amicus briefs of the Netherlands, Britain, and Germany ….

This development will put the Obama Administration in a difficult position. In its original amicus brief in support of the petitioners, the Administration argued in favor of corporate liability, but made no mention of the numerous diplomatic complaints about the ATS filed by other countries. Assuming that the Administration files a new amicus brief, it will face a dilemma. It will either have to argue against extraterritorial application, contrary to the position of human rights groups and undercutting its prior argument in favor of corporate liability. Or it will have to argue in favor of extraterritorial application of the ATS (at least in some circumstances), which is contrary to the position of many foreign governments and inconsistent with international law principles of jurisdiction. As three members of the International Court of Justice said in the Congo Arrest Warrant case, “[w]hile this unilateral exercise of the function of guardian of international values has been much commented on, it has not attracted the approbation of States generally.” Moreover, the Obama Administration would have to reverse the arguments against extraterritorial application of the ATS made by the Bush Administration in its brief to the Supreme Court in 2008 in the Apartheid case (which the Solicitor General may be reluctant to do). This may be one reason why the Administration asked the Supreme Court not to address the issue of extraterritoriality in its original amicus brief.

One might add that the amicus brief drafted by Harvard Law School’s Jack Goldsmith in support of defendant corporation Shell has had an effect; Goldsmith and his amicus brief were mentioned by name in the oral argument.  This was the point – noted by (swing) Justice Kennedy – that other countries don’t do this, don’t believe such a mechanism is part of or consistent with international law, and believe it makes a hash of ordinary principles of jurisdiction.  Goldsmith’s brief was not even primarily about extraterritoriality – it was about whether this was international law as such, or instead some kind of well-intentioned but nonetheless faux-international law committed to the hands of US courts.  (I have sometimes referred to it here and at Opinio Juris as the “law of the hegemon” which US district courts have been persuaded by ATS plaintiffs’ lawyers, mistakenly, to regard as “international law.”)

This then combines with a general worry on the part of Justice Alito – but not he alone – that particularly the alien-to-alien cases taking place in an alien land simply have no reason to be in US courts, and that what little can be gleaned about the history and purpose of the statute does not support extraterritorial application, at least in the territory of another sovereign.  Piracy on the high seas, yes – and hence presumably the importance of the qualifier in the Court’s briefing instructions to address not extraterritoriality as such, but instead territory of another sovereign.

There are things I wish could be got in front of the Justices that I, as a non-litigator, don’t really know how to frame in briefing terms.  One is the confusion between international law and “law of the hegemon.”  Another is that there are many real-world problems of perverse incentives created by the breadth of the ATS.  The most obvious is that the best is the enemy of the good.  Is it really such a good idea to push Western countries’ corporations out of places like Sudan and leave them to the investment practices of Chinese corporations?  (Added:  It is of course true that the concerns about perverse incentives can run the other way, such as the incentive to locate in some place with weak environmental or labor regulation in the first place; my view is that those are more widely understood as background assumptions than these other less visible incentives problems, and I think the ones I raise here are more important than commonly understood, so I concentrate on them here.)

This problem of pushing out pretty good companies that are subject to real human rights pressures in a regulatory way – provided that they don’t conclude that the risk of damages, bad publicity, etc., makes it more prudent to sell to Chinese companies – is exacerbated by Sosa standards, ironically.  Sosa (the Court’s last and not very successful – Delphic, mostly – attempt to standardize ATS jurisprudence) says the norms alleged to have been violated have to be really serious – genocide, crimes against humanity, slavery, piracy, that sort of thing.  So: you are the senior executives and board of directors of some American or Canadian company that has invested in a rubber plantation in Africa somewhere; well aware of the public relations, legal, and damages issues involved in various labor practices, particularly child labor, you have various systems in place, but you know perfectly well they won’t be perfect.

When the ATS lawsuit comes, however, in order to make it out under Sosa, your company and perhaps you personally are accused of slavery and maybe crimes against humanity.  Not merely violations of labor practices under some jurisdiction – but slavery.  We are all aware of the bad publicity problems for the company – but often neglected is the fact that these executives think these charges are horribly unfair and vicious to them personally, and way outside of the scope of litigation that ought to be applied – labor regulatory standards, at a level suited to determining if there are adequate safeguards in place, fines, sure, serious deterrents, sure, but slavery?  They take it personally.  Occasionally they fight, because they want to clear their own names.  But often business prudence prevails and they settle quietly.  But – they often decide, if they hadn’t decided long before, to avoid the whole ugliness and sell the business.  Is that such a good idea?

Back in the 1990s, a human rights organization asked me to go to Guatemala, a country I knew well, to look at the labor practices of a shirt manufacturer that operated maquiladoras there.  The head of the company was a leader in labor and environmental standards in his business, and the organization made a point of inviting him onto its board in an experiment in trying to find common ground with progressive business leaders.  Now his company was accused of child labor violations and various other things.  So I went down to look and didn’t find much.  This wasn’t about the ATS, to be sure, though it might have morphed into a suit.  Instead what remains most important today was the conversation with the then-labor minister in Guatemala, an ex-leftist who had been with the opposition during the civil war and whose not merely progressive, but revolutionary, credentials were impeccable.

When I told him that there was pressure for this company to close its plant, he was aghast.  He said, in impassioned terms, this would be terrible.  The company might have had an occasional child labor violation, he said, but it had inspectors who were clean, it offered child care, a clinic, and sent the kids of the women to school, and provided milk for the families.  None of the Asian maquiladoras would ever consider such a thing – on the contrary, they fired the Indian girls immediately if they found out they were pregnant (what he actually said was, I know of one maquiladora from Asia where the security guard threatens to punch the women in the stomach when they come in the door to start work to see if they will say no because they are pregnant).  I have hundreds of illiterate peasant girls streaming into the city every month, he said – I want your American company to open dozens more plants to absorb them, on these terms.  It’s that or prostitution.

The American company decided the potential bad publicity wasn’t worth it and closed the plant; I’m sure the marginal, if tiny, increase in Central American labor costs had something to do with it as well.  But note:  the human rights advocates were not unhappy with that decision.  Since they had no welfare obligations for the Indian women at stake, they could afford to stand on perfect principle; no hard tradeoffs for them.  Not so the labor minister.

Now, this is not about the ATS as such and I have no idea how one gets that notion of forward looking incentives before the Court.  But I would hope that these kinds of incentives questions could be inserted into the discussion somehow.  At a minimum, one might wonder whether the 18th century ATS – a one-sentence statute – is sufficient ground for the judiciary to supervise these incentives and tradeoffs, or whether these are deep policy questions which Congress would have to commit more explicitly, and in some kind of serious statutory framework, over to the District Courts for adjudication.

Over at Lawfare blog, I have posted a longish essay on the proposition that as the US draws down its military forces in Afghanistan, the CIA should take on the lead security role in the country.  The Lawfare post considers that proposition and asks what, as a corollary, needs to be articulated as the legal and legal-policy rationales for the CIA to act in these ways.  In general, I think this is likely a good way to use the CIA – but for it to work over the long run that such an engagement will almost certainly represent (since one fundamental purpose is to ensure that Afghanistan does not return to becoming a staging area for transnational terrorist groups, which is not likely to stop being an issue any time soon), the US government needs to articulate the legal basis on which the CIA is able to use force and perform these functions.  In my view these functions certainly are legal, but it is a problem that the government has not articulated its legal views on why that is so.  (If you want to comment, comment away here at VC, but it would help to have read the Lawfare post.)

In a related development on targeted killing and Anwar Al-Awlaki, Robert Chesney notes:

In late January, Daniel Klaidman reported that the administration was inclined to have Attorney General Holder give a major speech specifying additional details regarding the legal framework governing the use of lethal force against Anwar al-Awlaki. That time has now arrived. DOJ released a statement last week indicating that the AG will give a major address on national security at Northwestern Law (congrats to NW’s new dean–and my former colleague–Dan Rodriguez for landing this rather big fish) at 3:30 central time this Monday (the 5th).  Once the text is available, we will certainly have a link to it, and commentary [at Lawfare].

My wife and I just got home from seeing Act of Valor.  We both liked it very much, but I would be curious to know reader reactions from folks who have seen the movie.

Wired’s Chris Anderson points to a new report by the Hizook robotics portal on the relatively limited levels of venture capital funding for robotics.  I was surprised – I assumed there was more.  Information is hard to come by, Hizook says, but the post has a chart with annotations on various VC investments in robotics for 2011.  The comparison for 2011 is on the order of $160 million for robotics versus $6.9 billion for web-based companies.  The robotics figure almost certainly undercounts and probably by a lot, and the category of web-based companies in some ways is too inclusive to mean very much.  It’s an order of magnitude comparison, really, but I am struck at the relative paucity of VC funding for robotics.  That means, of course, that much of the robotics development takes place within large existing technology corporations.  Hizook points to some of the barriers for VC funding in robotics (comments are open):

[G]etting VC funding for robotics is a decidedly tough nut to crack. Robotics companies have large capital requirements for robot hardware, few potential acquirers, and almost no “Google-scale” breakout success stories (ie. IPOs). I mean, c’mon… one of the best known robotics companies, iRobot, has a market cap of just $700 Million. This makes robotics a difficult sell to your typical VC firm. My hope is that this list can give others courage to pursue “swing for the fences” type projects along with a source for robotics-friendly VC firms.

Eugene, A very happy birthday from all of us! Your co-conspirators, readers, and commenters.

Update: Oral argument transcripts: Kiobel and Mohamad.  My very quick impression from skimming the transcripts is that the Court will divide 5-4 in favor of not finding corporate liability.

Today the Supreme Court is hearing oral argument in Kiobel v Royal Dutch Petroleum (and a companion case) – one of the more important and interesting cases involving international law and foreign relations law of the United States in recent years.  The essential legal question is whether corporations can be held liable under the Alien Tort Statute. Rather than attempt to summarize it all here, let me point readers to a couple of sources.

In the Washington Post over the weekend, former Legal Adviser to the State Department John Bellinger argued that the Court should rein in the ATS and not permit corporate liability; he also has additional commentary at the Lawfare blog.  At the Opinio Juris blog, various commentators on all sides of the issue are offering guest posts; my colleague and friend at American University, Juan Mendez, who is also the UN special rapporteur on torture, has a post arguing that corporations must be held accountable for torture and other serious violations of human rights.  If you would like to read the dizzying array of amicus briefs, go to this link.

My own view, as I’ve said several times here at Volokh and at Opinio Juris, is that the Federal judiciary is under the mistaken impression that its expansive interpretations of the ATS, to reach extraterritorially as a form of universal civil jurisdiction against juridical entities, are “international law.”  I think what’s actually going on is that US courts are creating a sort of faux-international law, calling it international law (and genuinely believing it), while instead creating something closer to the “law of the hegemon.”

In honor of the Oscars – to which, however, I’m completely indifferent and am not watching – it occurs to me to ask:  given the Rise of the Drones, and all the various social, political, and legal issues they seem to be raising, from privacy to terrorism, what kinds of movies or TV shows should the entertainment industry come up with to capitalize on the new thing?

All is proceeding as my colleague Anna Gelpern has foreseen. Indeed. Years ago, she mentioned to me in passing that the markets seemed remarkably unaware, or anyway remarkably sanguine, about the question of whether local law (e.g., Greek law) or foreign law (e.g., English law) governed as the choice-of-law clause for the vast tonnage of European sovereign debt.  Today, we find the Greek government passing retroactive laws imposing collective action clauses and aggregation mechanisms on the very large proportion of its sovereign debt governed by Greek law. (Comments are open on this post, btw. Curious what you think about the Zerohedge argument below.)

Was this possibility priced into the bonds?  Or correctly priced-in? I myself find it hard to believe that it was, though without any evidence to speak of. But there are two excellent papers on these topics by Stephen Choi, Mitu Gulati, and Eric Posner that bear reading.  The first, last updated in March 2011, is “Pricing Terms in Sovereign Debt Contracts: A Greek Case Study with Implications for the European Crisis Resolution Mechanism”; the second, posted November 2011, is “Political Risk and Sovereign Debt Contracts.”

But one of the reasons for my empirically unsupported intuition about pricing choice-of-law terms in European sovereign debt is simply my perception that the market (up until the sovereign debt crisis hit the newspapers) consisted of people for whom the issue was fundamentally interest rate risk, not credit risk.  So I was interested to see this post today at Zerohedge, attributed to Hypo Capital Management.  Ordinarily, I find Zerohedge a bit too edgy and conspiracy-theory oriented for my taste, but if the folks in this guest post have done the work they report here, I think it is quite interesting and important.

HCM say they have managed to walk through a sample of individual sovereign debt issuances, looking at debt covenants and choice-of-law clauses particularly, comparing local law and foreign law issuances.  They then plot these as yield-to-maturity against maturity, separating the local and foreign law-governed bonds to see whether there is a separation, for Greece, Italy, and several others.  Thus:

We did the unthinkable, read the unreadable and made it back alive to tell the tale: we ploughed through all of the individual bond prospectuses of our favorite list of countries in peril and actually found a lot of useful information for the investor. Given that the sovereign bonds of the Eurozone used to be looked at as riskless assets, it is safe to assume that the exercise hasn’t been done by a lot of investors on a regular basis. Judging by the difficulty to even obtain the information, both the interest of investors to obtain it and that of issuers and underwriters to provide it has been and remains extremely limited. [Emphasis added]

Well, good for them (I’ve since spoken with some market friends who tell me that others are busily doing the same exercise, but I don’t know what conclusions others have reached and haven’t had time to look).  The countries they looked at were Greece, Portugal, Italy, Austria, Hungary, and Spain.  Their conclusion is, excepting Greece, there remains a potentially significant mis-pricing of sovereign debt because prices continue to reflect the assumption that there is no important divergence created by choice-of-law clauses in the debt.  Which is to say, no political-legal risk in the countries listed above, apart from Greece, running to debt governed by local law rather than foreign law.  Which is also to say, the assumption of the markets continues to be that (excepting Greece) pari passu means pari passu:

In our view, the state of the crisis warrants a broad-based significant markup for investor-friendly prospectus language and we see trading opportunities in most of the countries we analyzed …. Establish selective long/short pair trades in maturity-matched foreign/local bonds, or go long foreign law bonds and hedge via CDS.

I have not tried to reproduce their graphs here; you can see them at Zerohedge.  Their broader comment is worth reproducing, however (emphasis added):

Relative illiquidity and low issuance sizes distort yields and spreads. Investors traditionally shunned foreign law bonds and piled into local law issues. This may seem puzzling at first glance, given the duration and severity of the crisis. We attribute this to the investor base: their thinking remains entrenched in traditional categories, namely interest rate risk as opposed to credit risk. Only when the threshold is clearly crossed -as in the case of Greece- does duration-based pricing make way for default-based pricing and a different investor base takes over. When Greece lost its last IG rating, it disappeared from the universe of EZ government bond managers and entered the realm of HY bond investors. Thus credit criteria began to matter and were being priced in. In our view, the state of the crisis warrants a broad-based significant markup for investor-friendly prospectus language and we see trading opportunities in most of the countries we analysed.

I am not sure I understand – or agree – with all their thinking here.  They say that investors shunned foreign law bonds and instead bought local law bonds.  Is that what the evidence (see their charts at ZH) or their deductive argument suggests?  It seems to me they argue that investors had reason to be, and in fact were, indifferent as between legal regimes governing the bonds.  That does not alter the conclusion that there might well be a mis-pricing opportunity as between foreign and local law bonds, but I don’t see that it arises strictly from a preference for one over the other, rather than indifference.

Over at the Lawfare blog, Sonia McNeil (a student at Harvard Law School who assists me with the Book Review there) sums up the issues surrounding the Stolen Valor Act and last Wednesday’s oral argument in the related case of United States v. Alvarez.  It is a fine, short discussion that includes links to the case, briefs, oral argument, and commentary.

I don’t see how this is going to go as planned:

More than 160 German financial services executives are willing to come to Greece in order to strengthen the Greek tax mechanism, according to a report to be published in the German magazine ‘Wirtschafts Woche’ … The magazine cites German deputy finance minister Hans Bernhard Beus, who explains that a key factor is the knowledge of a foreign language – some of them speak Greek – while the return to active duty of retired tax collectors should not be ruled out. Many come from the state of North Rhine-Westphalia, whose finance minister, Norbert Walter-Borjans, compares Greece with 90s East Germany, noting that even the East Germans at the time were suspecious towards the West.

Those of us who have worked in development finance at the bottom-most level, with local companies and officials, understand that no amount of technical assistance can work in the face of entrenched resistance in the location. (Here is my general discussion of microfinance from a decade ago; it still seems to me pretty much correct.) Less so still when the perception is that it is all pain and no gain. Tax collection, more than most activities of government, depends upon perceptions of legitimacy; the idea that a government can collect against serious popular will is far-fetched, and particularly so when it is perceived as being on behalf of foreign interests.

It is likewise hard to see the local Greek tax collectors as wanting to be in the service of foreign governments and banks it seems to me as likely that they will see it as their patriotic duty to help tax evasion as stop it. The reference to East Germany seems to me especially perplexing; whatever the East Germans’ suspicions of their rich West German cousins, it was reunification and they were all Germans. Surely no one actually thinks that the arrival of tax collectors masquerading as technical assistance will be seen on any side in this as European solidarity? Yes, one could say that the price of receiving more bailouts has to be, on any objective measure, reform of Greece’s public finances – and that this is objectively a form of European solidarity.

But I would have thought that the ability to deliver this kind of tough love requires that one have internalized – really have internalized – some sense of shared demos (as I discuss in this paper regarding global, rather than EU, governance). Not just separate societies happening to share a currency union. What German technical assistance proposes to do is properly understood as the consequence of a shared sense of citizenship that can accept joint sacrifice, not the act that produces it.

What I most don’t understand, however, is the strategy by Germany and other EZ states. They are not stupid, and all of these concerns have occurred to them, along with many more. It seems unlikely that they would proceed in the face of such obvious objections without some reasons to believe it could work. Or some form of Plan B. (At Opinio Juris blog a few days ago, I queried whether Plan B was merely to ring-fence Greece – giving up on it – and I further wondered whether this would lead to internal welfare migration as Greeks grew more desperate, particularly in regards to expensive medical care.) But mostly I do not see what Plan B might be.  Suggestions welcomed in the comments.

Comments are open.

For the philosophically-inclined, the Concurring Opinions blog has an excellent roundtable discussion of a new book, A Legal Theory for Autonomous Artificial Agents, by Samir Chopra and Laurence F. White.  Great lineup of academic commentators, and responses from the authors.  If you are interested in robots, artificial intelligence, autonomy, and related topics from a legal and philosophical perspective, you should really take a look at the book and the roundtable.

(Update: Thanks to Insta for the link – readers who want the scoop from an actual property law professor should read Co-Conspirator Ilya’s post on this topic, here. My thanks to him for weighing in.)

By now many will have seen the news stories reporting how an animal rights group sent up a small drone with cameras attached to take video of a group of hunters out on a pigeon shoot.  The hunters responded to the drone by shooting it down.  Like many in the blogosphere, I was mostly amused, and tweeted that no one seemed to have told the animal rights group that the first rule of drone warfare is … establish air superiority.  Okay.  We also have many other stories of private organizations – NGOs of one kind or another, as well as commercial enterprises (leave aside the fact that FAA regulations currently permit only hobbyist use of UAVs) – using, or attempting to use, drones in order to monitor various activities that they find objectionable.  Some of this takes place in the United States, some of it over public land and some of it over private land, and some of it takes place outside the US, including attempts to monitor whaling at sea.

These private activities, whether by advocacy groups or commercial enterprises or just ordinary individuals, conducted over private property raise important questions that will have to answered one way or another.  One is whether it is lawful for a private party to conduct surveillance from the air over private property.  If it is, then a further question is whether countermeasures – and what kinds – might also be lawful.  One can always move indoors, and then we will have further, technology-driven debates over what kinds of sensors would be lawful that might permit private parties to “see” inside buildings.  We might envision “passive” countermeasures, such as jamming devices – about which the FCC and other regulatory agencies might have something to say.  We might have active countermeasures – shoot it down – about which, presumably, law enforcement and other agencies might also have something to say.

Zenpundit has some thoughts about the pigeon shoot shoot-down, which are quite interesting, but do not answer the legal questions raised here.  Private parties over private property, engaged in aerial surveillance.  Is it lawful and in what ways?  And, lawful or not, what countermeasures are permitted to the property owner, if any?  And what general bodies of law and regulation are implicated here – property law, trespass, nuisance, etc.  Comments are open, but I’m particularly interested in informed comments that run to the possible questions of law here.  More general comments are better directed to Zenpundit’s site.

Note in advance that the pigeon shoot story is different from the precise question I am asking here.  According to the animal rights group, the drone was over public property (although this was simply one side of the story).  There is a further interesting question of whether it would ever be lawful to shoot down a surveillance drone over public property, on some theory of nuisance or trespass or the like affecting private property. But please leave that possibility in order to deal with the more obvious and conceptually prior question – what about a surveillance drone in air space over private property?

Added:  Looking back at Zenpundit, I see he has linked to a good NYT article that actually sets out to answer at least a few of the questions asked above, and noting a bunch for which there are no answers.  (Also, the article has the good sense to consult Stanford’s Ryan Calo, who has thought harder about these questions than anyone I know.)  Here’s a bit from the Times:

….A new federal law, signed by the president on Tuesday, compels the Federal Aviation Administration to allow drones to be used for all sorts of commercial endeavors – from selling real estate and dusting crops, to monitoring oil spills and wildlife, even shooting Hollywood films. Local police and emergency services will also be freer to send up their own drones.

But while businesses, and drone manufacturers especially, are celebrating the opening of the skies to these unmanned aerial vehicles, the law raises new worries about how much detail the drones will capture about lives down below – and what will be done with that information. Safety concerns like midair collisions and property damage on the ground are also an issue.  American courts have generally permitted surveillance of private property from public airspace. But scholars of privacy law expect that the likely proliferation of drones will force Americans to re-examine how much surveillance they are comfortable with.

“As privacy law stands today, you don’t have a reasonable expectation of privacy while out in public, nor almost anywhere visible from a public vantage,” said Ryan Calo, director of privacy and robotics at the Center for Internet and Society at Stanford University. “I don’t think this doctrine makes sense, and I think the widespread availability of drones will drive home why to lawmakers, courts and the public.”

Some questions likely to come up: Can a drone flying over a house pick up heat from a lamp used to grow marijuana inside, or take pictures from outside someone’s third-floor fire escape? Can images taken from a drone be sold to a third party, and how long can they be kept?

Drone proponents say the privacy concerns are overblown. Randy McDaniel, chief deputy of the Montgomery County Sheriff’s Department in Conroe, Tex., near Houston, whose agency bought a drone to use for various law enforcement operations, dismissed worries about surveillance, saying everyone everywhere can be photographed with cellphone cameras anyway. “We don’t spy on people,” he said. “We worry about criminal elements.”  Still, the American Civil Liberties Union and other advocacy groups are calling for new protections against what the A.C.L.U. has said could be “routine aerial surveillance of American life.”

Under the new law, within 90 days, the F.A.A. must allow police and first responders to fly drones under 4.4 pounds, as long as they keep them under an altitude of 400 feet and meet other requirements. The agency must also allow for “the safe integration” of all kinds of drones into American airspace, including those for commercial uses, by Sept. 30, 2015. And it must come up with a plan for certifying operators and handling airspace safety issues, among other rules.  The new law, part of a broader financing bill for the F.A.A., came after intense lobbying by drone makers and potential customers….

Trendy supply meets trendy demand in the form of university courses offering to explain the Occupy movement. In today’s Wall Street Journal, Glenn Reynolds offers some suggestions on items to include in the course syllabus; he generously quotes me, from a post several months back here at Volokh, “The Fragmenting of the New Class Elites.”  My point in that post was to observe that the Occupy movement was in large part about elite intra-class struggle, between an upper tier elite that was (and is) doing pretty well, and a lower tier elite that faces serious pressures and downward mobility.  (If you’d like a way in to the theory of the New Class, this mid-1990s review essay of mine on lawyers and the New Class is a place to start.)

Glenn’s piece points toward something that needs much more study and discussion, and impact on policy: the linkage between the crisis in higher education and its business model, on the one hand, and elite formation and reproduction, on the other.  That includes the tendencies reinforced by that selection process – not all of which are obvious, but which have large consequences for the way in which our current elites operate.  One of the less obvious is the selection bias and long-run training of upper tier students and their parents toward risk aversion.  Strange as one might find it, I would put risk aversion as the primary behavior distinguishing today’s elites – in the college placement process, the university, the migration of top tier students to Wall Street jobs where they make good money but risk OPM, the assortative mating market that is quite possibly (as I remarked tongue in cheek at Valentine’s ) the raison d’être of the physical elite university, the intense reward of strategic behavior that is aimed less at maximizing gains than minimizing possible losses … today’s elites are well schooled in strategic behavior, but that strategic behavior is mostly about avoiding any error, and to the extent that our elites take risks, it is only with other people’s futures.

The system of high school college placement and higher education itself induces fantastic risk aversion, and that is accelerating, in large part on account of grade inflation that leave students in high school (applying to college) and in the university compressed against a top grade – in which there is mostly room to fall and fail.  When the median grade in the liberal arts is an A-, you mostly have only to go down and given the cost of the credential and its consequences – well in excess of any educational value in the liberal arts – you will act in the most risk averse, strategic way and take only classes in which you already know you will do at least that well.  The analogue of risk aversion in higher education in real life is downward mobility.  As the Occupy movement demonstrates, downward mobility is a serious prospect.

I will try to explain more of this in later posts; I’m torn between topics, and have some serious deadlines looming in other things.  But I will say that Glenn’s op-ed points to one of the most pressing intellectual and moral issues of American society today, at the nexus of elite formation and higher education.  Risk aversion must seem like an odd characteristic to single out as crucial to understanding the American New Class, but I think it is on the short list of crucial features of elite reproduction.

All of this is very difficult for our elites to take up reflectively, for obvious reasons – conflicts of class interest, as well as in difficulty in confronting one’s own risk aversion as a social pathology, given how much success it has brought you.  But, even more importantly, the master intellectual method that currently predominates in elite training and formation, economics, is remarkably ill-equipped even to see the issue, because its assumptions make it very difficult to see the “social” as an irreducible analytic category, rather than simply congeries of individuals.  Until there is a recovery of social theory – and the conflict tradition in social theory in particular – and a greater willingness to see the discipline of economics within a centuries’ long trajectory of intellectual history, we will not have the tools by which to analyze the New Class in America.

(Note to the Hoover Institution.  This is a near-perfect subject for you to take up, because it sits at the point of serious intellectual and academic work rather than day to day politics, and it has impacts that will reverberate across society and generations.  Why not convene a discussion group to discuss the topic over the next couple of years?  Fred Siegel, Russell Berman, Mary Ann Glendon, Peter Berkowitz, Dave Brady, Frank Fukuyama, Tod Lindberg, Andrew Ferguson, Megan McArdle, Walter Russell Mead, Charles Lane, Martha Minow, Josh Cohen, Zygmunt Bauman, Glenn Reynolds, Niall Ferguson, me, et al. – notice how many of them are already at Stanford?)

Over at the Opinio Juris blog, I’ve been raising questions about the EU, governance, and the eurozone crisis.   My most recent query was how, from a legal standpoint, the withdrawal or expulsion of Greece from the eurozone might actually take place.  Everyone is talking about it, it seems – or tweeting about it, at least.  (Comments open.)

The assumption of many commentators seems to be that if Greece wants to quit the eurozone, no problem, it just walks – the problems are not legal or governance as such, but practical matters of how to get drachmas going again, will it be “orderly” or “disorderly,” and what happens to the banking system, capital flight, etc.  The assumption also seems to be that leaving the EZ does not have consequences for Greece legally in other EU frameworks – everything else just marches along as before, and it just becomes an EU country that does not use the euro.  The same assumptions seem to be at play in the scenario that Greece is somehow kicked out of the EZ.  It’s not entirely clear who does the kicking, but again commenters seem to assume that if that’s what Germany and France want, it somehow happens.

As a matter of legal requirements, however, it does not appear that simple.  I mean, maybe in the event, it turns out to be one of those moments when everyone politely ignores the governing treaties of the EU – but that’s not what the documents themselves suggest about the process.  The ascension of the euro was intended in the treaties to be a one-way event.  In 2009, a member of the European Central Bank’s legal staff, Phoebus Athanassiou, prepared a paper on the legal requirements for withdrawal and expulsion.  It is a fine paper and an excellent discussion and is available at SSRN.  No doubt in the emergency of the moment, ad hoc will prevail over legal form.  Whether this creates any lasting issues for governance or legitimacy,  only time will tell.  But on paper, at least, the path to a Greek exit is legally daunting:

This paper examines the issues of secession and expulsion from the European Union (EU) and Economic and Monetary Union (EMU). It concludes that negotiated withdrawal from the EU would not be legally impossible even prior to the ratification of the Lisbon Treaty, and that unilateral withdrawal would undoubtedly be legally controversial; that, while permissible, a recently enacted exit clause is, prima facie, not in harmony with the rationale of the European unification project and is otherwise problematic, mainly from a legal perspective; that a Member State’s exit from EMU, without a parallel withdrawal from the EU, would be legally inconceivable; and that, while perhaps feasible through indirect means, a Member State’s expulsion from the EU or EMU, would be legally next to impossible. This paper concludes with a reminder that while, institutionally, a Member State’s membership of the euro area would not survive the discontinuation of its membership of the EU, the same need not be true of the former Member State’s use of the euro.

Meanwhile, some are suggesting that Greece is already fashioning the beginnings of a new currency, through “quasi-monies,” in this case so-called pharma-bonds.  As a recent Business Insider report notes, citing an economist’s report from UBS (Stephane Deo quoted below, emphasis added):

The Greek state hospitals accumulated arrears to suppliers during the period from 2005 to 2010. In May-June 2010, the Greek government decided to put an end to this practice and decided to take up this outstanding debt (law 3867/2010). In the following months, all the accumulated debt of public hospitals and the healthcare system from 2005 to mid 2007 was settled on a cash basis. The amount was EUR1.5bn for the years 2005 and 2006, with an additional EUR240 million for the first half of 2007. A total of EUR5.6bn accumulated between 2007 and 2010, was settled with zero coupon bonds. This was the creation of the “Pharma-Bonds”.

These financial instruments are bonds, and have all the characteristics of Hellenic Republic Bonds: they bear international securities identification numbers (ISINs); they are negotiable on the Athens Exchange and they rank pari passu with other Greek debt. The government, in one of its press releases, notes that “bondholders who choose to discount these bonds at the banks will crystallise a 19% discount versus their original claim.”

We would argue, however, that they are more than just another bond issued by the Greek government. To be specific, they seem to us very akin to what economists call quasi-monies. These quasi-monies have appeared in a number of cases, usually put in place by government to find an escape valve out of nominal fiscal rigidities in the face of a financing issue. This especially happens in a case of a government of a monetary union that cannot print money to fund its deficit.

http://fosslien.com/heart/. Megan McArdle asks how the physical university will survive the coming disintermediation of higher education.  I don’t think the answer is superior learning or even superior credentials.  It’s assortative mating.  Assortative mating works best when the cognitive elites are able to combine signaling behaviors for their superior genes, particularly for doing economics, with the physical proximity that supplies bonding behaviors and oxytocin and also the opportunity to sniff the pheromes.  We need classrooms for one kind of fitness signaling and dorms rooms for another.  There will be math involved.  Not because it’s necessarily needed, but because when economists compete for the opportunity to mate, math supplies the antlers. Vive the Red Queen.  The role of the tenured professor will survive as … Cupid.  (In honor of St Valentine’s Behavioral Economics, comments are open.)

The Legal Adviser to the Department of State, Harold Koh, delivered the keynote address at a UVA Law School conference on issues of conflicts over sovereign equality on Friday morning.  Notre Dame professor Roger Alford (who delivered a paper on the Lago Agrio Ecuador dispute at the conference) comments on Dean Koh’s speech at Opinio Juris.

Perhaps the most interesting aspect of his discussion was his spirited defense against accusations of hypocrisy. To the question “Why do you say things you don’t really believe?” he offered several replies.

First, he does no such thing. As he has said elsewhere, “I never say anything I don’t believe…. [I]f you hear me say something you can be absolutely sure that I believe it.”

Second, take what he says in context. He is not speaking as an academic. When he speaks as a Legal Adviser he does so as an advocate. The United States government is the client and he is speaking on behalf of that client. Just as a criminal lawyer will often change roles and serve as a prosecutor, defense counsel, judge, or academic, so too must an international lawyer recognize the different roles that he plays and speak accordingly. Moreover, a U.S. government lawyer must speak with due consideration of what has been said in the past and with due regard for the legal opinions of other lawyers in other U.S. agencies.

Third, sometimes his views have changed. “If there is anything inconsistent between what I said in a footnote when I was 29 and what I said now, then believe me now.” The specific example he gave was about congressional legislation. He said that in the past he often wrote with the assumption that Congress could pass statutes. But having served in Washington long enough he has come to accept that often legislation is simply not an option.

He did not contextualize that comment, so for now one can only speculate as to what he meant. My best guess—and it is only a guess—would be that many of his views about congressional acquiescence to the executive branch articulated in his well-known book The National Security Constitution (published in 1985 when he was 31) are no longer his current views. I say that because the sharpest divergence between Koh the academic and Koh the Legal Adviser comes in the Libya context with respect to the definition of “hostilities” in the War Powers Resolution.

You can judge for yourself whether those replies are persuasive. I personally am sympathetic to all three. I have no way to judge the first, but I have no reason to doubt it either.

Like Alford, I am sympathetic to all three and have no reason to doubt the first; his blog post goes on to other important observations.  But I want to add a comment on the question of where this notion that one speaks differently when one is in government than when one is purely an academic arises.  In Dean’ Koh’s speech, and in Professor Alford’s comment, the locus is the lawyer-client relationship.  Harold Koh is an advocate and, as he said in his UVA remarks (I was also in attendance), that distinct role sometimes means that he must accept that his clients will go for the “lawful but awful” alternative.  Moreover, there is a complicated question as to the hierarchy of legal advice – again, as he stressed, he is the Legal Adviser to DOS, but that makes him a very important lawyer amidst a group of also very important lawyers, including the DOD general counsel, the CIA general counsel, and many others – just in the national security field.

I am, as I indicated, very sympathetic to the position of the government lawyer or, really, policy-maker who must work to a position that is not entirely one’s own and must reflect other people’s views – and yet in the end be supported as the “position” of the administration.  That is hard for academics to swallow, as reactions to Harold Koh’s positions have sometimes shown; but, at the end of day, we academics live in David Lodge novels and have all the authority of the kibitzer. I of course include myself in that assessment.

One reason that the sense of betrayal and hypocrisy over positions that Harold Koh has taken as Legal Adviser has been so acute in some quarters, I believe, is that the academics indeed think of it as being a function of the lawyer-client relationship.  It’s a relationship that academics embrace, in one sense, but in another do not respect it – precisely because at bottom it seems somehow dishonest, insincere, and hypocritical even if a crucial aspect of an adversarial system.  In the context of “legal policy-making” in some loose sense rather than strictly part of the litigation system, it seems to be a bit of a dodge to reach conclusions at odds with one’s professorial declarations by reaching to advocacy for the client.

I don’t think this is the whole story, however.  The obligations at issue are more than just those of the attorney-client.  It is much more profoundly the obligations of a fiduciary – and those fiduciary obligations encompass policy makers in government who have no duties as attorneys.  One enters government at the senior policy-making role (including legal-policy of the kind that inevitably attaches to the general counsel positions, the senior DOJ and OLC positions, and others) as fiduciaries with a public trust.  It is democratically and constitutionally established by the election of the administration to which one belongs – and one is no longer a free agent, intellectually or politically.

One has to operate within the overall policies of this administration – and very often within the traditions, customary interpretations, formal and informal procedures, precedents, and prior decisions and understandings of the department and office.  This is not because it is legally binding strictly, because it might have nothing to do with “law” as such or “legal advice,” but because one is stepping into the shoes of, as Harold Koh once put it in remarking on his own office, a long line of predecessors upon whom others have relied.  The importance of fitting one’s own work within the long-run of the agency or department’s practices and judgments increases the legitimacy and trust that the public has in government; there are exceptions that require sharp breaks from the past, but the default position is that one operates as a fiduciary that looks to the past, sometimes long past, to the present administration and its decision-making, and to the preservation of the legitimacy of the office to the future and future administrations.

That is the obligation of a fiduciary – and it is far beyond the often merely instrumental obligations of the attorney-client relationship to advocate on a client’s behalf.  I have been impressed with Harold Koh’s concern to express that understanding of the role of senior government policy makers and lawyers.  I think he’s right about that, and right to emphasize it as a matter of good faith.  I hope that this understanding will carry over to future administrations, as well, of either party: it is part of the essential long-term coherence and legitimacy that makes democratic governance possible.  But it is far beyond the attorney-client relationship alone. It is a special form of agency, the agency of a fiduciary in a position of political authority.

If you happen to be around Charlottesville tomorrow, Friday, February 10, you might want to come over to a symposium on how to resolve conflicting legal norms in US and foreign courts:

The conference – organized by the student-run Virginia Journal of International Law and the John Bassett Moore Society of International Law – will explore how to resolve conflicting legal norms found in the United States and abroad, particularly as domestic laws extend their reach beyond countries’ borders. ”Although domestic and foreign legal norms have always interacted, the particular issues that will be addressed during our 2012 symposium have yet to be given significant attention in legal scholarship,” said third-year law student Zach Torres-Fowler, managing editor of the Virginia Journal of International Law.

The keynote speaker for the conference will be the Honorable Harold Koh, Legal Adviser to the State Department, speaking at 9 am Friday; and the day’s panels feature many leading professors.  If the sponsors post up podcasts or video, I’ll come back and link to it later, but I believe papers from the conference will be published by the Virginia Journal of International Law.  The topic has always been around, but is an increasingly important one – conflicts of norms and how courts around the world should resolve them.  Leaving aside the much discussed question of constitutional norms and foreign courts, the whole body of “ordinary” law presents many conflicts questions in novel areas.

For example, the Second Circuit ruled against Chevron in its on-going dispute with Ecuadorian plaintiffs, and the US court talked about “comity” and respect for other legal systems in its opinion.  In other cases, on the other hand, many involving the Alien Tort Statute (which, as my earlier post noted, will be revisited by the Supreme Court), US courts essentially ignore local courts or courts that plainly have a closer nexus of jurisdiction in favor of jurisdiction of US courts found under the ATS.  As the amicus filings of Germany, the UK, and the Netherlands indicate in the Kiobel case – revisiting the ATS in the Supreme Court this term – this creates considerable friction with other states.  But there are many other situations that weren’t really seen in earlier periods – libel tourism, for example, and the clash of free expression and libel norms between the US and the UK.  So although the topic of conflict of legal norms appears quite abstract, it actually takes up some of the most pressing issues among court systems of the world.

I’ll be moderating one of the panels – and I had better get on the road down to C’ville.  Hope to see you there!

As I have occasionally noted here at VC, this term the Supreme Court will hear an Alien Tort Statute case, the Kiobel case, in which a primary question is whether the ATS embraces a theory of corporate liability.  The Supreme Court presumably took the case because of a circuit split that has arisen over the corporate liability question, and perhaps because of a sense that the exceedingly vague guidance of its last visit to the ATS, the Sosa decision, left many crucial items open.

The case has attracted intense interest among outsiders, professors particularly – 19 amicus briefs filed on behalf of plaintiffs, and 16 on behalf of defendant corporations. (I signed one, despite my general reservations about scholars’ amicus briefs (drawing upon Richard Fallon’s article, which I have blogged about here at VC, including a response by Amanda Frost), mostly because I know this subject matter very well and believed that if called upon, I could have drafted the brief I signed myself.)

Former DOS Legal Advisor John Bellinger writes at Lawfare that the governments of Germany, the UK, and the Netherlands have filed amicus briefs in support of corporate defendant Shell Oil; the Obama administration filed a brief in support of plaintiffs.  (His post at Lawfare provides links to most of the briefs or the ABA site with amicus brief links.)

Here is what I wish could be got in front of the justices. (I am not a litigator, so I don’t pretend to know how one would frame this substantive point in a way so as to put it in a brief.)  The basic question is whether the ATS is a statute about international law or whether it is instead a statute that enforces something we might call the “law of the hegemon.”  The District Courts have been told, and seem largely to believe, that what they do by way of a universal jurisdiction statute – allowing foreigners to sue foreigners in tort for conduct taking place entirely outside of the United States or having any connection to it save through the ATS itself – as civil law remedies against juridical persons is a faithful expression of international law.  I – along with the foreign governments filing amicus briefs – would beg to differ.  There is no regime of international civil liability, nor is there liability for juridical persons; many fine scholars disagree, of course, and you can find their views in the amicus briefs supporting the plaintiffs.

A better explanation of the ATS as it is currently instantiated is that it is the law of the hegemon, masquerading as international law.  It is US law of tort and civil liability, and the US law of corporate liability, extended by US statute to encompass all actors worldwide and universally.  The standards laid down in Sosa – even leaving aside the questions of corporate liability or universal civil jurisdiction – are thoroughly US-centric.  They require that “international law” be interpreted through the lens of a 200+ year old American statute consisting of one sentence; look to historical interpretations of what Congress might have intended about international law of the day in order to tell the District Courts how to interpret today’s international law; impose American law notions of prudential restraint by courts that are driven in considerable part by domestic law separation of powers concerns, not international law as such even though those concerns establish what “international law” is available for deployment; use American concepts of civil and corporate liability to fill in “gaps” in international law; and perhaps most strikingly, look to American courts as the precedential authority on how to interpret international law.

That, it seems to me, is what a hegemon does when simply carrying its law to the rest of the world.  It is also what a legal system does when what matters to it is its “internal” legitimacy – its fidelity to its own hierarchy of authority and interpretation.  I want American courts to remain internally faithful to their distinct hierarchy of Constitutional legitimacy; yet this is not how the “doctrine of sources,” even in a loose sense, operates in international law.  And while I’m not un-attracted by US hegemony, to be sure, and while I’m also not entirely convinced of the universality of international law, either – still, even a semi-skeptic like me does think it a mistake to confuse “hegemonic law” with “international law.”

A mistake, that is, if for no other reason than that the hegemon seems somewhat in decline.  (“Ne serait-ce point une Amerique lasse de son metier?” as Stendhal (might have) put it.)  Does one really think that the federal judiciary, without further instruction from the Congress, ought to set the terms for how China’s corporations behave in Africa, lacking further connection to the United States on any traditional basis of jurisdiction? I’m all for American hegemony, but in today’s world, even I think it a bridge too far – and quite ungrounded in international law as such.

How one gets that concern in front of the Supreme Court, I have not the faintest idea.  But I do think it is the overarching intellectual and political question at stake.

The Washington Post has an excellent front page story by Greg Miller today, “CIA digs in as Americans withdraw from Iraq, Afghanistan.”  The title largely sums up the story.  As uniformed military forces depart each of those theatres, the CIA will remain behind.  To do what?

The withdrawal of U.S. forces from Iraq in December has moved the CIA’s emphasis there toward more traditional espionage — monitoring developments in the increasingly antagonistic government, seeking to suppress al-Qaeda’s affiliate in the country and countering the influence of Iran.  In Afghanistan, the CIA is expected to have a more aggressively operational role. U.S. officials said the agency’s paramilitary capabilities are seen as tools for keeping the Taliban off balance, protecting the government in Kabul and preserving access to Afghan airstrips that enable armed CIA drones to hunt al-Qaeda remnants in Pakistan.

As President Obama seeks to end a decade of large-scale conflict, the emerging assignments for the CIA suggest it will play a significant part in the administration’s search for ways to exert U.S. power in more streamlined and surgical ways.  As a result, the CIA station in Kabul — which at one point had responsibility for as many as 1,000 agency employees in Afghanistan — is expected to expand its collaboration with Special Operations forces when the drawdown of conventional troops begins.

This seems to me the right strategy, particularly for addressing transnational terrorism, and in any case is almost certainly where the center of American public opinion stands with regards to both conflicts.  But we should probably add two things.  First, in Afghanistan – the strategically more important theatre – the CIA’s role is likely to be much more than simply gathering intelligence and engaging in paramilitary strikes, either using drones or its agents and Special Forces teams.  It is likely to be deeply involved in the coordination and funding of various local Afghanistan forces – in something that I suspect will look, in terms of the Agency’s historical role, much more like reversion to the mean.  Proxy forces integrated with gathering intelligence that enable drone and special ops strikes, but also utilized a forces able to help prevent consolidation of a regime that might provide safe haven for transnational terrorist groups, resurgent Al Qaeda or offshoots.

Second, it cannot be repeating sufficiently that the highly successful strategy of drone strikes and special ops owes its conversion from merely a tactic – and one that risked the “whack a mole” weakness of a tactic repeated serially – into a genuine strategy to the role of dense, often ground-level and human intelligence.  Leaving the CIA behind is a way of preserving that vital intelligence network, in addition to its paramilitary capabilities.  As someone once described it, the CIA in Afghanistan will be like the French Foreign Legion – last one to leave, if ever; the force that covers the rear of a strategic retreat under fire.  Or, going back to Miller’s article, as Navy Adm. William McRaven, remarked Tuesday, “I have no doubt that Special Operations will be the last to leave Afghanistan.” I have no doubt, either.

(By the way, I am looking forward to reading Michael A. Innes’ new book on proxy warfare when it appears in May, Making Sense of Proxy Wars: States, Surrogates and the Use of Force, with a forward by the eminent national security law scholar William C. Banks.)

(Note: I think the link is fixed now. Thanks for the alert.)  Excellent feature article in New Scientist on the many, many ways in which drones are being used today in different places and functions around the world.  They include flying grids over Brazilian fields to see which ones need to be re-sown, in France to monitor tiny but important perturbations in high speed rail lines, and many more.  Drones are going to take on more and more functions in ordinary civilian life, private and governmental ones.  Both the FAA and European agencies are getting set to issue rules on drones that will regulate access and safety in airspace.  But in the meantime, the article notes:

[L]ast week real estate agents in Los Angeles, California, were ordered to stop using helicopter drones to shoot aerial movies of properties they are selling. “Although the FAA allows hobbyists to fly model airplanes for recreational purposes, that authority does not extend to operators flying unmanned aircraft for business purposes,” the Air Division of the Los Angeles police department reminded the California Association of Realtors.

I would be interested if readers knowledgeable in the regulatory law in these areas would let us know in the comments whether the LAPD is correct or not in this view.  I’m not expert in these areas and have no reason to believe it is not a perfect valid order, but would be interested in what expert readers have to say about it.  But the whole of the New Scientist article is well worth reading, to understand just how far drones are already entering civilian, and not only military, uses and how far they will go in the near future. (And I see now that Instapundit has linked the same article – that’s because great minds think alike.)

These days the defense of the products and output of the humanities – literature, criticism, the academic study of the arts and letters, etc. – is not an easy task.  At least it is not an easy task if one’s position is doubly, or even triply-conditioned:  First, a defense would have to be of critical thinking in reading and writing, verbal skills, in a forward sense that engages with a changing, technologically driven world, asserting the value of generalist skills in thinking in a world that prizes technical specialization as the key to wealth and success. Second, however, it would have to be a defense of a “traditional” conception of the humanities as a realm of close reason – but without saying that it was better how we “used to do it” and that arts, literature, and criticism should return to how they were when the critic was in college, because by and large it wasn’t so great then.  Third, it would be no defense at all of the humanities in their current academic incarnation, because they aren’t very much about critical thinking, teaching it to students or deploying it in its production; no defense of the current humanities academy, while at the same time urging that its reform does not mean a project in reaction and nostalgia.

The task of defending the humanities is difficult not merely because its academic guardians have by and large failed or given up on the intellectual underpinnings, however.  A big part of the problem is that the collapse of the disciplines in their traditional sense has convinced many that the basic problem of the humanities is not that they are badly taught, but that they do not, or no longer, speak to the ‘truths’ of the world.  One economist friend who shares my love of Stendhal remarked to me that it is not that Stendhal is not revelatory of the “world”; it is, rather that literature, as revelatory of human nature and the human world is anecdotal and personal, whereas today we have social science and data. The taste for story, narrative, and literature remain, but merely as taste, not truth. Indeed, he might have continued, we could probably come up with good evidence that our undeniable taste for story and narrative is the product of a biological wiring that seeks to impose order on the world in the form of a narrative; how, then, are we to see Julien and Mathilde as “revelatory,” given that they, too, are narrative par excellence? The same for criticism and the genres of thinking associated with the academic disciplines of the humanities that seek to explicate and interpret; one might as well return to Freud.

This is not, note, the customary criticism of the “useless” humanities that these are disciplines that don’t produce an obvious rate of return. This new dismissal of the humanities is distinct from the problem of trying to see their value in commercial life. After all, as Tyler Cowen pointed out in one of his finest early books, the most vibrant pursuits of the humanities – pace the prejudices of many humanities professors – are often the product of the most vibrant commercial societies.  Why?  Apart from having a society rich enough to support so complex a division of labor in a strictly material sense, I suppose it’s the relation of sense and sensibility. So much of a vibrant commercial life seems on the surface to consist of “sense” – doing the accounting and figuring the rate of return. Yet the stuff for sale, from ephemeral fashion to the design of the great public infrastructure, is actually “sensibility.”

The role of the humanities in this kind of vibrantly commercial society, one which celebrates the high arts and the low arts, high culture and pop culture, is to bring to bear sense upon sensibility, to provide the tools by which to analyze sensibility.  Part of which is culture for its own sake, but part of which serves, intentionally or collaterally, to more effectively sell sensibility.  Making sense of sensibility seems to me the fundamental task of the humanities; for one to care about that task, really care, one has to think that sensibility is something more than merely ephemeral and contingent taste.  Something more than exogenous preference, if you like.  One of the biggest problems today, in other words, is that we simply don’t much believe that the analysis of sensibility says very much, not merely because the humanities disciplines aren’t very good at their own traditional tools, but instead because there isn’t much at bottom to say about preference and taste.  Curation and categorization?  Sure. Analysis? Not really.

There are two different currents here. One is the humanities as disciplines giving up on delivering answers and, in their academic emanations, coming very close to giving up on reason as such. Apart from anything else, it is a position that leaves academic departments ill-equipped to accomplish the proposition on which universities sell these departments, the ability to teach broad analytic and thinking skills to undergraduates, both as a practical life skill and as a public good.

The other is partly an independent phenomenon and partly a move to fill a disciplinary vacuum created by the humanities’ academic collapse. It is, unsurprisingly, the rise and rise of social science as a claim to empirical explanation of human nature, on the one hand. And rationalist economics, on the other, providing a deductive structure that applies an elegant (in one sense) and brutalist (in another) reductivism that strips human motivation down to a simple machine that takes the raw materials of desires and runs it through, first, a narrow rational choice modeling, finally to be polished up and modified a bit by a little behavioral economics to adjust for “real” human beings. It’s as though the way to explain human beings is to put together a model that mimics the behavior of a human being and tweak until it can’t be distinguished from the human being: a Turing Test for social science modeling. Or maybe a Turing Test for being human. It’s only the humanities that gave up on the search for truths about human beings in the world. The economists and the geeks of social science never gave up the search, and they (and we) seem to have concluded that the answers are located in purely technical subjects through purely technical thinking. Or at least we behave that way.

It is possible, of course, that this turns out to be true.  Human psychology explained by increasingly ramified forms of behaviorism.  I doubt it – I think, rather, that one of these days we will conclude that our current reductionist forms of explaining human beings are too reductionist, and that today’s austere and “on the surface” behaviorism turns out to be as mistaken as the baroque multiplication of psychological entities that characterized Freud and psychoanalysis.  But leave that aside; the consequences for the humanities of turning to purely technical subjects for human understanding are grave.  To start with, the new social scientists and economists, working within the deliberately flat and barren propositions internal to their disciplines, strongly bounded rationality, have no larger frame of intellectual history in which to situate themselves, as part of the history of ideas, as something which is not entire of itself.  There’s a name for the temptation to which it gives rise, one we learned in classes in literature and classics: hubris.

It means, for another thing, that the humanities as disciplines, while they might still (barely) be a way of teaching certain forms of reasoning, don’t provide “content” in the intellectual reproduction of commercial culture – at least, not at the fundamental level, at the level of science and applied science.   They are not part of the production of new knowledge.  Success and advance for society lie in the innovations of technical and applied sciences alone – and the humanities lose a place in the production of these innovations, and become relegated to the status of mere items of consumption.  Literature, the arts, criticism, the essay – their social significance lies solely in their role as entertainment.  Entertainment is what one does in one’s free time, for fun. It is dispensable, and the humanities, too, their raw materials and their analytic products, likewise are dispensable. We didn’t use to think this about the humanities, its products, disciplines, and academic efforts. But that’s where we are now: fantastically produced and expensive, but their deliverances no longer can claim to reveal anything very important about the world.  That role has been ceded to STEM; and, well, The Rest is Noise.

With sadness I report the closure of one of the world’s great stand-alone book reviews, the Revista de Libros de la Fundacion Caja Madrid.  For the past twenty years, it has served as the leading literary review in the Spanish-speaking world – edited in Spain, and possessed of a genuinely global grasp of intellectual and cultural affairs.  It united deeply informed review essays together with unparalleled contemporary Spanish prose – exquisite and lapidary.  I was honored to serve as the Review’s political sciences editor.  I also authored several essays for it, on the United Nations and global governance, Francis Fukuyama on neoconservatism, Philip Bobbitt on terrorism and the state, that were translated into a Spanish that made me out to be much smarter than I am.  (The translator, the Revista’s Luis Gago, won awards for his translation, most recently, of The Rest Is Noise.)

The Revista closed because its patron, the Caja de Madrid, is one of the regional Spanish thrifts that has run into trouble – Spain having a particular economic trouble in that its national banks weathered the crisis well, but its regional thrifts financed Spain’s construction boom and bust. The economic trouble is linked to a particular political trouble in that the national banks were well supervised by national authorities, while the regional thrifts benefited from the perennial conflicts between national authority in Spain and the regions.  I suppose that if I were, say, British, and given my general views on the necessity of a demos for democratic governance, I would probably be a Euroskeptic.  But in fact the European project has pulled off several near-miracles, one of which is the integration of post-Franco Spain back into, well, civilization.  Elite cultural institutions like the Revista are part of that consolidation and its closure is an enormous loss.

The Revista’s closure prompts me to one general comment about book reviews.  The collapse of so many stand-alone book reviews as well as newspaper book sections has left a gap in the intellectual genre of criticism.  The kinds of book discussions that we often have in blogs is great – inviting authors to present their new books in blog posts, or online roundtable discussions with an author of a new book.  These are terrific new ways of presenting the ideas in books made much more accessible by blogs and online resources.  But they also have limitations, and one of the most important of these is, to put it baldly, the presence of the author directly on the stage of discussion.  Offering a comment on a book in which the book’s author will immediately respond changes considerably the sensibility that one brings to making the comment.

The book review as a genre of “criticism,” by contrast, depends upon a critical distance from the author in order to focus upon the book.  It is hard if not impossible to do if the author as a living presence is hovering nearby.  All these genres, the new and the old, have their places, but it is harder than it used to be in part for lack of outlets, especially when the new online resources see their advantage in the ability to bring the author into the discussion directly.  I’m unusual in the academic world in liking to write book reviews; I like to read books and like to write about them.  And I like reading and writing the sophisticated, polished reasonably short book review essay as its own genre.  Most academics see book reviews as a waste of time – not taken seriously in the academy, and are not worth the effort.  I agree that is all how it is – but alas, if I were honest about the writing I’ve done that I most like, it’s the highly polished, sentence by sentence edited and revised, review essays I’ve written for the Times Literary Supplement in particular.  I don’t think it has ever done anything for my academic career, even in the handful of cases when the essay was widely noted in the academy, but I think it’s much of my own best work and the stuff I most like.

So I was excited when the Lawfare national security law blog invited me to become the book review editor; short of becoming editor of the TLS or the Boston Review, this is something I’ve always wanted to do.  But Lawfare is not really a blog; it’s a highly edited online journal, run by a long-time journalist with serious editorial skills, and the editors agreed that we should aim in this particular subject area to reinvigorate the traditional book review essay, at whatever length.  I’m really pleased with this; reviewers have enthusiastically welcomed the instruction to write as though for a traditional book review, and to expect serious substantive and copy editing.  My larger point, however, is that the traditional book reviews cultivated a particular genre with a particular sensibility.  The best of the genre had a certain analytic toughness, and it has been harder to come by with changes in media platforms.