The Volokh Conspiracy

Philip Bobbitt is an old and dear friend, and I was privileged to meet his bride, the marvelous Maya Ondalikoglu, at a dinner in California last month.  This Above the Law story on the romance and wedding is not a gossip piece.  Professor Bobbitt agreed to be interviewed for the story, and it’s a quite lovely wedding announcement.  For those who don’t know Professor Bobbitt, take my word that the announcement he had wed took those of us who do know him, um, somewhat by surprise, save for the fact that the unexpected is so … so characteristically Philip Bobbitt. On behalf of the Volokh Conspiracy, congratulations and best wishes to the newly-weds.  Long life and happiness.

I’ve been light on blogging for the past while, due to a relentless travel schedule and still-more relentless editors on several projects.  However, I did not want to let the day go by without congratulating my Beloved Wife, Jean-Marie Simon, for the online exhibition and commentary in the New York Times Lens photography blog today.  It’s an astounding number of photographs from a book forthcoming in Guatemala of photographs taken during that country’s 1980s civil war.  One interesting feature of this book is that it was produced with $20,000 raised from the crowd-sourcing fundraising site Kickstarter. Also, Beloved Wife, despite some initial skepticism when she began this project to republish her photographs from the 1980s, concluded that the book and photographs could be produced with as high or better quality in Guatemala.  The book by its nature is highly political; Beloved Wife covered a civil war, combat, many military and guerrilla operations, and the whole campaign of state terrorism and disappearances of that conflict; the photographs are sometimes graphic and violent.  Congratulations, Jean-Marie.

Welcome to the blogging world, Bill Henderson and Andy Morriss and their new blog, The Legal Whiteboard.  It promises to fill an important missing link in the discussion of the future business models of the legal profession and legal education.  From the inaugural post by Bill Henderson:

According to a lot of reputable media outlets, the sky is falling for both legal education and legal services.  I understand the basis for this conclusion.  A lot of lawyers, young and old, are unemployed or underemployed.  The debt loads of graduating students are staggering.  The established “brand” law firms are doing something they have never done before — shrink, or at least not grow.  This puts lawyers on edge and has a tendeny to spawn unhealthy, short-sighted behavior.  The federal government, through the direct lending of the Department of Education, continues to fuel the lawyer production machine.  So things may get worse before they get better.

Despite the fact that I am one of the go-to people on the speaker circuit when it comes time to talk about structural change, I am not in the sky-is-falling camp.  Instead, I see a lot of opportunities for lawyers, law students and legal educators to do very important and creative work.  What is most exciting about this work is that it will make society better off – law will become better, faster and cheaper.  Many legal services will become more standardized, productized and commoditized.  I realize that these words will rankle some of the old guard, particularly those still making a good living under the bespoke model.  But clients – including corporations, government and ordinary citizens—will love it.  Professional ideals will remain the cornerstone of successful legal enterprises, but denying the exigencies of the marketplace is, to my mind, unprofessional.

Because clients and society want better, faster and cheaper law, I believe lawyers (including legal educators) have a professional duty to ardently pursue this goal.  The hardest part of this assignment – and the most vexing and interesting – is how to parlay this transformation into a decent living.

Many people assume that the new paradigm means lawyers working longer hours for lower wages.  That is one future business model.  But I think it utterly lacks imagination.  Lawyers are problem solvers.  To my mind, the growing price elasticity for legal services and legal education is just a very difficult problem.  And whenever I am faced with a very difficult problem, I typically start writing out my thoughts on a massive whiteboard.  (I am told it is quite a spectacle to behold.)  I am also someone who loves to collaborate.  With an outward facing Legal Whiteboard, I am hoping to elicit the genius of my fellow travelers.

A current meme on drones and targeted killing is that although they might indeed reduce civilian harm and offer greater protection to one’s own force – more precision and discriminating use of force – they are nonetheless bad because they have another effect, viz., that they reduce the inhibition that political or military leaders have in the use of force.  So, for example, this past Sunday, the (justly-famed) Brookings expert on robotic war and author of the path-breaking Wired for War, Peter Singer, wrote in a New York Times op-ed that, on the one hand, he supported most of the drone strikes that the US had carried out.

He then went on, however, to express what could properly be called much anxiety about drones and targeted killing – anxiety rooted in a presumed relaxation in the disincentive to use force.  Given an unwillingness to finally come down as between support for drone strikes and anxiety about them, Singer finally rested his position on a process issue – the way in which they presumably undermine democracy and democratic decision-making.  However, the way in which drones undermine democracy, on this account, still finally rests upon this root anxiety about not having one’s own forces at risk as a burden upon political leaders.

Anxiety is not a policy.  It might be and, I think, in this case is an admirable sentiment, and a useful way of focusing on the basic question of the use of force.  But ultimately, having anxieties about the implications of one’s weaponry and one’s political leaders who make decisions about how to use it is not the same as actually making a decision about what to do.  When anxiety has to give way to actually deciding whether to use a weapon, or whether to develop a weapon system, someone has to decide: is the possibility that political or military leaders might decide to unjustly to overuse a weapon a reason to not use the most precise weapon available to commanders?  Or not to develop greater precision in the first place?

Because that is the issue in the vague and morally-responsible sounding invocation of anxiety over drones and targeted killing.  Most knowledgeable observers are in broad agreement that these technologies are more sparing both of civilians and one’s own forces, and indeed forces on the other side that one did not deem necessary to attack.  It is always possible that the availability of ever more precise weapons that have these humanitarian characteristics will persuade political or military leaders that they can thereby undertake more uses of force than they might otherwise (although, importantly, the intensity, duration, and damage from more frequent recourses to force might also be far less than conventional means).  But the refusal to use, or the refusal to develop, weapons of greater precision as a way of inoculating, as it were, political leadership from the temptation to use force more immediately comes at the price of holding the civilians and fighters who are on the losing end of this calculation as, in moral terms, hostages.  They are held hostage to the believe that political leaders cannot be trusted.

This is immoral.  It uses the civilian and soldiers whose lives might have been spared by more precise technologies as mere means – hostages – to other ends.  The immorality of this argument is masked by the sincerity of the anxiety – a vague anxiety that covers the true implications of the argument.  The anxiety is admirable – up to a point.  It is admirable to the extent that it forces a serious re-examination of this moral anxiety where it actually lives – which is to say, in the acts of political and military leaders.  It does not live, except illegitimately, in the refusal to use or develop more precision means as a way of pressuring those leaders.  The anxiety ultimately is about the unjust or immoral or wrong resort to force by political leadership, and that is the point that anxiety ought to push.

Ultimately rubber meets road; and anxiety, however morally sincere or admirable, has to give way to policy.  In the actual attack contemplated, do you use the most precise means possible or not?  Are you really prepared to urge the use of less precise means, or to urge that technologically available, more humanitarian means should not be developed?  And if you think the answer is that one should use, or only have available, less precise means, isn’t the real reason that you don’t think the attack is actually just or justified?  But if that is the reason, then have the moral courage to get beyond vaguely expressed anxieties and say so.

(I have given a fuller academic discussion for why I think the argument from the relaxed disincentive to use force a bad one, in a paper that will be appearing as a book chapter, downloadable here at SSRN.  And thanks to Glenn for the link.)

Although the big news today is the Supreme Court opinion in Jones, we also have the Fourth Circuit dismissing the Padilla appeal in a Bivens claim.  Lawfare’s Steve Vladeck explains and comments:

Jack [Goldsmith] just flagged the Fourth Circuit’s unanimous 39-page opinion throwing out Lebron v. Rumsfeld–one of the two pending Bivens suits brought by Jose Padilla arising out of his detention (and alleged abuse) as an “enemy combatant.” Although Padilla’s allegations (if true) would have stated serious violations of his constitutional rights arising out of his long-term incommunicado detention as an “enemy combatant” (and his alleged abuse while in custody), the panel (Wilkinson, Motz, Duncan) declined to recognize a Bivens remedy. There’s a lot to say about Judge Wilkinson’s disturbing opinion for the court–and I’ll try to explain why it’s disturbing below the fold.

The short of Judge Wilkinson’s analysis is encapsulated within the following two passages:

Special factors do counsel judicial hesitation in implying causes of action for enemy combatants held in military detention. First, the Constitution delegates authority over military affairs to Congress and to the President as Commander in Chief. It contemplates no comparable role for the judiciary. Second, judicial review of military decisions would stray from the traditional subjects of judicial competence. Litigation of the sort proposed thus risks impingement on explicit constitutional assignments of responsibility to the coordinate branches of our government. Together, the grant of affirmative powers to Congress and the Executive in the first two Articles of our founding document suggest some measure of caution on the part of the Third Branch. . . . When, as here, these two branches exercise their military responsibilities in concert –- Congress by enacting the AUMF and the President by detaining Padilla pursuant thereto—the need to hesitate before using Bivens actions to stake out a role for the judicial branch seems clear.

In other words, once Congress triggers the use of military force, Bivens should not generally be available if government officers violate the rights of U.S. citizens while ostensibly acting under such authorization. And if that logic wasn’t clear enough, Judge Wilkinson concludes:

Padilla’s complaint seeks quite candidly to have the judiciary review and disapprove sensitive military decisions made after extensive deliberations within the executive branch as to what the law permitted, what national security required, and how best to reconcile competing values. It takes little enough imagination to understand that a judicially devised damages action would expose past executive deliberations affecting sensitive matters of national security to the prospect of searching judicial scrutiny. It would affect future discussions as well, shadowed as they might be by the though that those involved would face prolonged civil litigation and potential personal liability.

Vladeck, we should add, is not persuaded by the Fourth Circuit’s analysis:

[T]o hold, as the Fourth Circuit does, that these factors categorically cut against the availability of a Bivens remedy is to forswear any Bivens claim challenging any governmental abuses committed in the name of protecting national security, even those in cases in which state secrets or qualified immunity would not bar relief–that is, cases in which there is no realistic potential for the disclosure of classified national security information and it is clear that what the government officers did was unlawful at the time of their conduct. Whether or not that was true in Padilla’s case, this is a disturbing result going forward.

Andres Marroquin, a Guatemalan economics blogger I follow with interest, has a new draft paper (co-authored with Julio Cole), “Economical Writing (Or, Think Hemingway).”  It is summarized at Marroquin’s blog post, The Economics of Writing.

Literature [Nobel] laureates tend to use shorter words than laureates in other disciplines, and the difference is statistically significant. These results confirm Salant’s idea that words are a scarce resource and should be used efficiently. This includes using short words instead of longer ones whenever possible. In short, good writing is also “economical writing.” [Table omitted.]

Note that the lowest average word lengths are for the Literature prize. In terms of syllables/word the Literature laureates’ word lengths were, on average, almost 8% shorter than the weighted average for non-Literature laureates, and about 6.6% shorter in terms of characters/word.

Salant (1969) argued that the use of short words is an indication of good writing. We found support for this hypothesis by comparing the banquet speeches of Nobel laureates. To be sure, word length is only one dimension of what makes for “good writing.” But it seems that it is a necessary dimension. Words are a scarce resource and must be used efficiently. This includes using short words rather than longer ones, whenever possible. “Economical” writing might indeed be the key for “good” writing. We leave for debate the different implications of our paper.

I invite readers to consider in the comments whether the method pursued here is suited to the task at hand, or whether it is instead an example of a method gone in search of something to measure, or something again entirely.  Note that this is different from asking whether good writing indeed consistently uses shorter words (the Hemingway or Orwell “plain prose” aesthetic), or whether good writing is much more variable on this metric than one might have guessed (Blaise Cendrars, for example, or Garcia Marquez or Milan Kundera).  Finally, is it true that “words are a scarce resource?”  Don’t the authors mean, rather, that more words are always available and that reader attention is the scarce resource?  (BTW, in posting this, I should ask whether I have been taken in by a parody – someone bidding for an Ignoble Prize?)

Ryan Calo, director for robotics at Stanford Law School’s Center for Internet and Society, has a new, op-ed length essay on the ways in which robots fall in-between regulatory stools as they move from specialized factory or military functions into everyday life.  Who Will Regulate Robots?

Students of this transformative technology should keep their eye on both the claims and disavowals of authority over robots by state and federal agencies. Each hold potential dangers for our civil liberties and for the future of robotics … the mainstreaming of robotics will pose challenges for regulators. Even if it is clear that a given agency should have something to say about a robot, it is not clear exactly what the scope of their authority will be.

The Federal Aviation Administration worries about (and, for now, restricts) the domestic use of drones on the basis of safety. But the agency does not appear to have anything to say about the potential of this technology to infringe upon citizen and consumer privacy. Similarly, the National Highway Safety Traffic Safety Administration thinks about the impact of autonomous vehicles on safety but does not appear to have given any thought to the effects of driveless cars on citizen autonomy—for instance, were law enforcement to claim a right to force an autonomous car to slow down or pull over.

When I first mentioned my interest in robotics and the law beyond the battlefield where I have been studying it for several years, a sophisticated law professor friend asked how there were legal issues beyond tort and products liability.  The rest of the potential issues – intellectual property, etc. – were not particularly special to robots.  Ryan Calo’s scholarship has been central to showing the many ways in which this potentially transformative, but also disruptive, technology raises in its knock-on effects many legal questions.  And as he says, the avowals and disavowals of regulatory authority by existing regulatory agencies over different types and aspects of robotics raise the specter of regulating things we wish were not regulated, but also failing to regulate things we might wish were.  Comments open for this post.

Tomorrow is the first class in my 1L elective class in Law and Economics.  The 1Ls at my school are allowed one spring elective course, and can choose among an array of courses for 1Ls [edited: at the post bottom, I've put the full list in case anyone is interested].  Law and Economics is popular, particularly among the many students who studied economics, business, or management as undergraduates, but also among students who didn’t but perceive that they need to learn about these disciplines in order to be effective lawyers.

Demand is high enough that we offer two sections of the 1L Law and Economics class; at our school it is taught as a truncated version of the standard course.  I use Polinsky’s short Introduction to Law and Economics, and we walk through various efficiency and Coase Theorem approaches to common law topics found in the first year.  I supplement this book with materials on public choice, some institutional materials, and a tiny bit of strategic behavior and prisoners’ dilemma material.  It’s a once a week class for two hours, not much time.  The most unusual materials I use are Coase’s original Problem of Social Cost article, and then, as a non-technical introduction to risk, Peter Bernstein’s intellectual history of risk, Against the Gods.

I’ve noticed, however, as the financial crisis has gradually moved to envelop lawyers and legal education, students are starting to ask questions about what exactly Law and Economics as a topic is supposed to do for them as practicing lawyers.  I’ve found students asking this question midway through the term or, increasingly, in frustrated or downright nasty comments on course evaluations – how is this useful to me as a lawyer?  Part of the frustration comes because economics either seemed so obvious to business, or because what many undergraduates studied as “economics” just was practical management studies. One arrives at law school, thinking it is the same in law, but it’s not.  They assumed they would like it because it would be “practical” – economics would “solve” legal problems – but then it isn’t and it doesn’t.

I want to take up this question with students in the first class, while people still can opt out.  I talked about this last year, midway through the course, when I sensed student irritation that this seemed so intellectual and pointy-headed.  I said two things.  First, this is the language of the law today – these are the framing intellectual concepts underlying an awful lot of practical things in the law, and not just business or finance law, either.  Lawyers breathe words like externalities or efficiency; it’s part of the atmosphere of American law.

Second, today there is a keen awareness in the legal system, among all its parts, that consequences matter.  I gave the example of some appellate decision on some environmental matter where the court was specifically called upon to weigh anticipated costs and benefits.  That was cheating a little bit – I deliberately picked a case in which the law itself called for a cost-benefit analysis as part of the very law at issue.  Even so, law and economics is the study of anticipated consequences in the law, and, well, no federal judge wants to issue a ruling and wake up the next day to discover he or she has unilaterally but inadvertently dismantled the securities markets.  But didn’t know it because the parties had argued the law and cases and regulations, etc., but hadn’t briefed the judge on the likely consequences of a given ruling for the system as a whole.

I thought that sounded pretty good, but interestingly the students weren’t impressed.  As one of them put it, that might be fine for students at the top ten schools, but students at mid-tier schools such as mine are only rarely going to become judges or people who design the rules.  They are going to become lawyers within a legal system, doing tasks that take the existence of the rules – including their efficiency or inefficiency, and their consequences – pretty much for granted.  They are, after all, the rules of the game.  Microecon is mostly  ”internal” as a mode of explanation to business and management. Law and Economics is “external” to law as a mode of explanation; it “explains” law using materials from outside it – which is great, except, of course, if you live and work “inside” the law.

I increasingly worry that, at least for most students at most law schools, this comment about the inapplicability of Law and Economics to law practice is correct.  That might be a problem – and leads to another question, which is why Law and Economics has such attraction to law professors (including me).   A big part of the answer, I believe, is that we professors are attracted to law not as an economic field, but as a form of what we (usually naively) think of as “engineering.”  Design science.

Law and economics is often associated with as much as there is in legal academia of conservative or libertarian thought.  But it might be better understood as studies in social engineering.  The economics-driven focus on the design of rules toward efficient ends sometimes makes it seem that the JD stands for, not juris doctor, but doctor of social engineering.  There is some ideological irony in this, of course.  If there is, however, I’d say it’s a result of the focus on the design of regulatory systems.  It tends to turn traditional interpretive, discursive methods of law (learned from humanities disciplines, traditionally) into social engineering design.  And this implicitly underlies even a free-market orientation in law and economics because it, too, is implicitly social choices about design.  (I think Dick Posner recently made some similarly critical remarks about the prevalence of law and economics in the curriculum.)

Whether that is good or bad for students at the very top law schools, I am fairly sure that it not what my students will mostly do in their careers.  Some of them (we’re a DC school, so maybe even many of them), will eventually be writers of regulations or regulatory guidance – in which the approach is law-creating, forward-looking, and consequentialist.  But I don’t think it’s true of the vast majority of students across the country outside of the top twenty law schools.  Perhaps I am wrong.  And it might very well be true – indeed, I think so – that whether one spends one’s career doing regulatory design or not, it is still valuable as an intellectual frame for the study of law, whatever and however one does it in practice. Still, the design emphasis is not that of the lawyer in practice most of the time – though studying a field of law through the lens of its efficient or inefficient design might be the best way to grasp the field as whole, in order to better practice it in its particulars.

Does this gap matter to the study of law?  My unhappy students did not dispute that law and economics sought to teach them a particular way of understanding law and legal questions, a particular vocabulary and method – they instead questioned whether that vocabulary and method was very useful to lawyers who had to deal internally with legal materials and system and rules as they were, not as they might be designed hypothetically toward greater or lesser efficiency.  Their role in the legal system is not to play God.

So let me put it to you.  What should I tell my 1L students tomorrow as to why they should study law and economics – or not?

Update: See Orin’s post on Judge Cabranes’ recent speech calling for a more bread and butter approach.  It’s true, as Orin suggests in the comments, I’m interested here in the Law and Economics question, not the range of electives as such.  And it’s important to understand that these electives are intended to provide a “taste” of different aspects of more advanced law to 1Ls whose first year is otherwise completely fixed and traditional.  I don’t have a problem with my school offering electives like this; I think it’s an excellent idea and we offer different courses in different years.  My question is rather about law and economics and what I should be trying to accomplish and how I should inform students in order that they can make informed decisions about how to use expensive time and credit resources to best advantage.  In any case, the first year electives this year are: International law, Human Rights Lawyering, Law & Economics, Food and Drug Law, Public Law and the Regulatory State, Intellectual Property, The Supreme Court, and Law and Literature.  In my first version of the post, I mentioned a class we’ve sometimes offered as a 1L elective on women and the law.  The elective program is a good opportunity for students who have otherwise been in the traditional first year courses to understand how the first year curriculum leads into specialized areas of law, and that’s true across a wide variety of electives.  My point in this post is not to raise questions about it, but to ask what exactly students should expect to get out of my course in Law and Economics.

(Note: I opened this for comments, not sure why only one is showing – I’ll ask the experts.) A late Happy New Year to the Volokh Conspiracy and all its readers. I’d like to thank Eugene for the opportunity he extended me a couple of years to join his merry band; I’ve found it stimulating and intellectually exciting, and I look forward to blogging in the coming year. I’m grateful to him. Having a little down time on a plane ride to California, I thought I’d think aloud a bit about blogging topics I might take up this year.  (This is idly dreaming, not promising.)

One is a continuation of blogging I’ve always done on international law, institutions, and politics, ranging from national security to international organizations. I’ll continue blogging on the interrelationships between drone technology, targeted killing, and the future regulation of covert action (loosely speaking). But I plan to expand to include more writing around the more long-run of autonomous weapons systems and battlefield robotics. These topics track academic and policy writing projects in which I’m engaged already. Robotics and the law generally has caught my interest in a big way, and I plan to post on different ways in which areas and issues of law intersect with the development of robotics in ordinary life. In this I hope to highlight the work of others in this emerging field, while asking what robotics and the law will gradually come to mean.

My short book on US-UN relations, Living with the UN: American Responsibilities and International Order, is in final production and will appear in the next couple of months (yes, I know I’ve said this before, but at this point, it’s down to settling on whether to have jacket blurbs or not). My hope is that it will help inform at least slightly debate over international relations and law in the presidential election – to be sure, mostly as the Republicans would see things, but with observations that I hope would be relevant to any US policy official dealing with the institutional UN. It’s quite true that I imagine John Bolton would find it more persuasive than Susan Rice, but I think it has relevance in a world in which new great power relations and the rise of China are re-shaping many things. (Note to teachers of international organizations, IR, international politics, international law, etc., this modestly priced book from Hoover Press would make a great contrarian addition to your syllabus; you are likely to find it very wrong but, I hope, shrewdly so. It’s not law, but policy, and easily readable at the general reader and undergraduate levels. I’m not writing for international law professors.)

As a teacher of international economic law classes, as well as the co-author in a book project on financial regulation reform, I will be blogging more often than I have in the last year about financial regulation. My co-authored book project is aimed at a very particular level and discussion. Not offering a body of substantive prescriptions for regulation, category by category, or a topic by topic critique of Dodd-Frank – both of these have been done, very effectively. But instead heuristics for prudential regulators seeking to be, well, prudent.

But I also intend to use blog posts here at Volokh this year to explore some new or lightly touched-on areas. One of these is to continue and deepen the discussion of higher education and legal education, their business models and their reform in both their economic structures and curricular forms. I want to push this discussion to include something I think of great importance, and relatively neglected – the defense of the study of the traditional humanities, as well as a certain model of higher education that would require, above all, reform to the admissions process. This discussion is informed by a more abstract discussion that, again, I’ve raised occasionally here but want to pursue on its own – the theory of elites in a mass democratic society, and particularly the version of it referred to as “New Class” theory. It is social theory, unapologetically so, and one that raises the question of social theory as such, and critique of the peculiar tendency of both rationalist economics and behavioral economics to ignore the irreducibility of social and cultural structures – even “institutions” is frankly too contingent a term – and to account for them as such.

These latter topics have interested me for a very long time, and I have an idea – perhaps stretching into 2013 – to play with new publishing forms through e-books and Kindle. I think I’d like to experiment with taking some of my blogging on these latter topics – social theory, elites, the New Class, perhaps framed around the problems of higher education – and put together a short Kindle book, and see how that new platform works.

Well. That’s a lot, much more than I’ll manage to do, and I’m spending lots of time working on pedagogy for my courses, even ones I have taught for many years. But I’m going to try and do some more culture blogging – Baroque and early music, cello, books, and culture. Possibly even a return to Stendhal.

Meanwhile, however, we are about to pass over the White Mountain, in the White-Inyo Mountains that form the eastern wall of the Owens Valley, a peak only 200 or so feet below the top of Whitney across the valley in the Sierra Nevada. These are my favorite places in all the world – even at 38,000 feet, sacred air space. So, passing over a short range in the Sierras called the Inconsolable Mountains, Anderson is at some very pagan prayer.

I’ve pointed in the past couple of weeks to ‘must-read’ discussions of the NDAA at the Lawfare blog, by Benjamin Wittes, Robert Chesney, and more recently Steve Vladeck.  Now, in a cross post at Lawfare and Opinio Juris, Marty Lederman and Steve Vladeck weigh in with two substantial posts.  Their take-away is somewhat different from Wittes and Chesney’s, and I strongly commend them to you.  At OJ, Marty Lederman also has a guest post on the meaning of the signing statement that accompanied the President’s signature on the NDAA, and then there is a response post giving pushback on many of the basic international law assumptions in all of the above discussions from OJ’s Kevin Jon Heller.   (For my part, I will try to find a moment here to parse the answers given by several of the Republican presidential candidates to a New York Times inquiry on the lawfulness of the targeting of an American citizen, Anwar Al-Awlaki, in Yemen several months ago.)

To all of the readers and Co-Conspirators of the Volokh Conspiracy.  The Anderson family had a lovely Christmas, with our daughter home from her first semester at Rice University, which she loves despite spending the semester with mono and strep and returning home early for an urgent tonsillectomy.  Santa delivered Ipads to Beloved Wife and me, which I am finding harder to set up than I would have expected, mostly due to having to change a whole raft of Apple, Itunes, and MobileMe passwords and settings, and upgrade to the Lion operating system.  Not quite as seamless as I had hoped, but I’m powerfully eager not to haul my laptop around as much.

I gave everyone in the family Volokh Conspiracy tote bags.  Enough said, and that’s not all I gave Beloved Family.  (Inside Beloved Wife’s bag were a couple of Agnes B shirts I tracked down cheap on Ebay; I don’t know much about clothing, men’s or women’s, but I knew from long experience these would be good choices.)

Beloved Daughter gave me two books.  The first is Football for Dummies because, well, that’s my level of knowledge.  But I’m expected to cheer for my alma mater, UCLA, and now for Rice, although I’m told I should not expect many victories.  The second is one of the coolest books I’ve received in a long time, which Beloved Daughter found at a Rice library used book sale.  How Things Work is a 1961 book by a mechanical engineer and editor with a trade magazine in the late 1950s (I’ve got the title slightly wrong – I’ll find it and the author and amend this).  It explains in simple language and great drawings how the mechanical and electrical devices of ordinary life work.  Refrigerators and sewing machines, air conditioning and electric motors, fuses and light bulbs, zippers and car engines.  The reason it is so great is that these are still (as Tyler Cowen and others have pointed out) the machines of daily life, minus the semi-conductor revolution.

One of the strange things is that a lot of popular mechanics and pop sci stuff somehow skipped a generation with me – I learned a lot more about abstract theories and things like relativity and genetics as taught in the 1960s than mechanical things.  Somehow those were taken as obvious – but let me be the first to admit I could not truly explain how a zipper works.  And though I knew about atomic theory, I was hazy on the practicalities like AC and DC.  Or for that matter, why a toilet has the shape it has.  The emerging technologies were computers and such; mechanical objects were assumed.  So this book is a pleasure to read and I’m filling in some crucial gaps about ordinary things.  I’d always been an “assume the can opener” kind of guy – without much clue exactly how a can opener works.  Interestingly, these basic principles of machines and power transfer are at the heart of another book that Santa brought – Mark Ripptoe’s Starting Strength: Basic Barbell Training, which has many drawings showing how levers and fulcrums drive a lot of strength training such as the dead lift.

Our family also watched the entire Lord of the Rings this week.  Apparently this is not that uncommon; I saw that Michael Totten said the same on his FB page and promptly got a bunch of responses saying, yeah, we do that too.  I suppose it’s because the three parts each came out at Christmas.  And when else will you have the time?  But – I defer to Ilya on this – it seems to me there is a spiritual message there that is not precisely religious but part of that which religion and spirituality have always stood to combat – the temptation to despair.  That seems to me the biggest reason why we found the movie appropriate for Christmas.  Resisting despair at the individual level, and using bonds of affection – trust, loyalty, fidelity – to combine together for the greater good and to resist the greater evil.

(I’ve left comments open.)

The NYU Development Research Institute, led by Professor William Easterly, has published the first formal international aid agency evaluation of that international development program known as “Christmas.” It is a disturbing report, to say the least.  Some highlights:

Lack of Efficient Modalities: The Christmas Gifts appeared to consist largely of in-kind aid.  This contradicts abundant evidence of best practices emphasizing cash transfers as superior to in-kind aid. There was some evidence of #SWEDOW (“Stuff We Don’t Want”) in-kind transfers, the worst possible kind of aid, usually involving fruitcakes.

Lack of Efficient Timing: Contrary to the recommendation that aid consist of an even, predictable flow, the Christmas Gifts program is mostly concentrated on one day, with a few unpredictable lags ranging from a few days (“late deliveries”) to months (“handmade gifts”).

Lack of Net Flows: Evaluators found Christmas Gift recipients engaged in behavior that frustrated the aid program, with Recipients acting as Donors to their own Donors, reducing their own net aid intake. They explained their counterproductive behavior with non-standard concepts such as “Tis more bless’d to give than to receive.”

There were aspects unaccountably unaddressed by the evaluation – principally the role of behavioral incentives, in the form of surveillance by drones by which to make up “naughty” and “nice” lists.  I can only add that since Amazon has taken over the whole program under contract to the United Nations Development Program, it is all anticipated to work much more smoothly.

While I am thinking about drones – and, like Orin, stalling on my exam grading – let me add two drone and targeted killing links.

The first is a Wall Street Journal news article by Adam Entous and Julian Barnes, on debates in Washington (and beyond) on whether (and if so what kinds and capabilities) drones should be sold to NATO allies (e.g. Italy or Turkey), and other allies and not-so allies (e.g., Gulf states).  It is an important article that, like others from the WSJ national security team, distills a lot of lengthy research and background investigation.

The article also raises a question I have sometimes addressed in blog posts – is the US triggering an arms race in drones?  As I’ve said repeatedly, drone technology has the following conceptual parts: flying, computer hardware and software, weapons (if weaponized), sensors, and the communications link.  Of these, flying is the easiest and triggers no arms race because over the next few years or decades, everyone will do it, with widespread application in civil aviation.  The weapons can be difficult to duplicate – if one cares especially about discrete applications of force, minimizing collateral damage, otherwise it’s not so hard to stick a missile on a drone. Sensors – in their ramifying complexity, different kinds of sensors, plus the computer and software integration – are the most difficult part of the drone; this might trigger a race to reverse engineer US technology, but it isn’t really an arms race; these sensors will be developed for many non-military purposes anyway.  The communications link is the weak link of a drone – it might be hijacked, broken, or otherwise attacked, and an arms race is likely to develop that crosses robotics with cyber in the development of defenses and counters to comm link weaknesses.

So I’d say that the US has an interest in maintaining its advantages while it can – but this will not revolve around “drones” in the flying machine sense, but instead other technological parts of drones.  There is room here for intelligent tinkering with export controls – but with respect to advanced sensors, software, and cyber-comm parts of the drone, and likely advanced weaponry, as well.  The real drones arms race, in a military sense, is much more likely to be over the question of protecting or attacking drones in the air – stealth technologies, communications link weaknesses, the stuff that makes them vulnerable or protects them from attack.

The second article appeared today in the Washington Post, by Karen DeYoung.  It features many very interesting interviews (the most interesting are unsourced and background; given the topic, one understands why).  It walks through the current state of the several drone warfare programs conducted by the US.  The article is particularly focused in the question of the secrecy of the drone programs, however, and the government’s refusal to acknowledge them under rules of covert programs.

I am quoted several times in the Washington Post article, mostly for the proposition that the Obama administration needs to be more forthcoming on the legal and policy basis that it sees undergirding these programs, in both international and domestic law.  The quotes are accurate and certainly reflect my view, but I would like to add some additional context.  I call for greater transparency, but do not think I mean it in the way that most of the advocacy and human rights activists mean it.

For many of the critics, in my view, the call for transparency might be genuine – but it is also a stalking horse for a much broader agenda to curtail targeted killing and drone warfare as the Obama administration has conducted it.  Since secrecy is a crucial element of success in such programs, calls for decreased secrecy might sound like – and indeed be sincerely meant – a call for increased transparency in order that outsiders can judge lawfulness.  But objectively speaking, intended or not, the result would be to increase the flow of information to the potential targets of the programs and their supporters.  I’m quite willing, and have said many times, that there is a balancing to be made here, and sensible observers have started by saying, tell us the legal justification, not the facts in particular cases.  As others have noted, it doesn’t really work that way as a process of legal reasoning – these determinations are highly fact specific, casuistical, and facts and law can’t be prised apart in this way.

But okay, there is surely more that can be said, even within a necessary balancing – a balancing, however, that belongs to the US government and its constitutional processes, and should be limited to political branch oversight, in my view.  Even with that, however, I see very little evidence that most of the advocacy groups would actually be happy with transparency as such.  The real objective is to curtail the programs, particularly as conducted by the CIA; it would be disingenuous to hide the ball on that objective.

Since I think the programs, including those conducted by the CIA, are the single greatest contribution of the Obama administration to national security policy – counterterrorism on offense – my reasons for calling for greater transparency are more limited and much more nuanced.  I have come round to agree with something Jack Goldsmith said over at Lawfare a couple of months ago, that as far as international law goes, there is not that much more to be said that hasn’t already been said.  This is not an international law account that depends fundamentally on some deep or textual parsing of cases of the International Court of Justice or other such documentary sources of international law.  It is premised on a much broader assertion of state practice evidencing certain long-held understandings of international law related to self-defense and a number of other things.

The demand for ever more extensive international law justification is mostly a way of saying that one disagrees with the basic approach to understanding international law at that point.  But then it is ships passing in the night, and there is not much point in going into the weeds because ultimately the US does not think the international law answers lie there. As far as US domestic law goes, the weeds – the work that Robert Chesney is doing on the interrelationships between Title 10 and Title 50 authorities, the military and the CIA, particularly – matter a great deal.  But that is not really anything that the advocacy groups care about as such.

That is so, even though I believe that at least some of the things that trouble the advocacy groups become much less of an issue insofar as there is a gradual merger of Title 10 and Title 50 special operations.  The military is never free to disregard the laws of war, and the intelligence community must adhere to Title 50 oversight processes which, one might think, points in the direction of the best of both worlds from an accountability process.  Or at least an accountability process that accepts that reporting will not be made to NGOs.

The domestic law matters to me for a different reason – viz., that, as I was quoted in the article as saying, we really are groping our way toward a new paradigm in the use of force, made possible by new technologies and the understanding that, going forward, we are going to be dealing with non-state actors with counterterrorism tools, not counterinsurgency.  I think we need some revamp of our Title 50 covert activities paradigm to deal with changing ways in which we project and use force, its oversight and accountability, and fundamental categories of acknowledgment.  In doing so, the US government should see the development of its domestic law authorities as providing long-run state practice for how these new, more discrete technologies should be used – state practice that just possibly might shape the very, very long run of international law in this area.

The idea that covert action has jus in bello rules applicable to it is, after all, a new development all its own, at least to judge by how states have traditionally understood the conduct of their state covert forces in the past (rules? what rules? that would require that there be a category of activities).  It is an important assertion of law that the category be understood to exist and to be governed by rules that limit when and where it can be undertaken (e.g., the “unwilling or unable” standard) and conduct rules (Harold Koh’s ASIL assertion that even self-defense outside of formal armed conflict must still adhere to the basic standards of necessity, distinction and proportionality).  These are important developments in state practice, and the US needs to find ways to communicate these as normative developments that undergird the legitimacy of its practices.  That is not, I think, quite what Human Rights Watch or the ACLU think the agenda of transparency leads to.

Finally, I expressed concern in the article’s quotes that the legitimacy of these covert activities was far too much based around the legitimacy of this particular administration – far too much a function of the Obama administration and the bona fides with which it entered office.  The reason I worry about this is simple.  Whether there is a new administration in 2012 or 2016, there will eventually be a new president of some party.  The Obama administration – correctly in my view – is committing the US to a strategic path of counterterrorism that depends in important ways on drone warfare and targeted killing; it is committing the US to this as a strategic, operational, indeed budgetary path for much longer than it can possibly be around.

I applaud this – make no mistake – but I also think for that very reason that the Obama administration has a special obligation to do everything possible to ensure that these tools are fully available to future presidents – and that means undergirding their legal and political legitimacy as much as the line item of drones in the budget. This is a serious legitimacy question, and one that DeYoung’s article spells out very well in its discussion of reaction to these policies among our allies (keeping silent on them, neither publicly criticizing nor endorsing, even after utterly depending on drones in Libya).

The advocacy groups, for their part, are merely clearing their throats with calls for transparency, threats of lawsuits on behalf of drone victims. Not to put too fine a point on it, in my estimation they are pre-positioning themselves for a possible Republican administration come 2012 when, suddenly, policies that required merely greater transparency and deferential discussion and all that when it was the Obama administration become accusations of war crimes once again.  The administration has an obligation to look down the years, ten years, twenty years, down the road, and protect the presidency in a policy that is substantively the right one – a signal contribution of this administration to the discrete and targeted protection of the United States.

CJ Chivers and Eric Schmitt have a lengthy and important front-page story in this past Sunday’s New York Times detailing scores of instances of civilian collateral damage from NATO air operations in the Libya fighting.  Anyone dealing with laws of war, humanitarian intervention, targeting standards, and technology and war needs to read this article closely.  Although I have no special factual knowledge beyond the public and media accounts, I incline to believe that these accounts are correct and that the real numbers are considerably higher.  (This is apart from a separate question of violations of the laws of war committed by the Libyan rebels as NATO co-belligerents and whether NATO has any attributional responsibility for the actions of these forces, or for negligence in failing to take reasonable steps to restrain these forces. That legal issue is not considered in this post or in the original NYT article.)

I am an uncompromising advocate of precision technologies in warfare, including drones and other remotely controlled machines that, by removing the issue of soldiers defending themselves, allow for more careful targeting decisions.  I’m also a strong advocate of the Obama administration’s targeting killing programs, both by the military and the CIA.  That said, proponents of precision targeting through better technology have long risked raising expectations well beyond what technology supports at any given moment.  Gains in civilian protection come incrementally, much of it through trial and error, a combination of technology and experience gained about operations using it in the field.  Either over-promising too much, too soon or demands that any “improvement” meet a zero damage, strict liability standard has the effect of stopping improvement in its tracks because improvements come incrementally, one grinding step at a time.  Magic bullets come after a long series of unmagic ones.

Unsurprising but nonetheless disappointing was the initial reaction of NATO officials to these Times reporters in their inquiries.  It amounted to a shrug of the shoulders:

By NATO’s telling during the war, and in statements since sorties ended on Oct. 31, the alliance-led operation was nearly flawless — a model air war that used high technology, meticulous planning and restraint to protect civilians from Colonel Qaddafi’s troops, which was the alliance’s mandate.  “We have carried out this operation very carefully, without confirmed civilian casualties,” the secretary general of NATO, Anders Fogh Rasmussen, said in November.

“Without confirmed civilian casualties”?  Not confirmed only because NATO refused to make inquiries.  Only after the Times reporters gave NATO officials a 27 page memo documenting collateral damage deaths in particular sites in Libya did NATO change its stance:

Two weeks after being provided a 27-page memorandum from The Times containing extensive details of nine separate attacks in which evidence indicated that allied planes had killed or wounded unintended victims, NATO modified its stance.  “From what you have gathered on the ground, it appears that innocent civilians may have been killed or injured, despite all the care and precision,” said Oana Lungescu, a spokeswoman for NATO headquarters in Brussels. “We deeply regret any loss of life.”

That is not an offer by NATO to conduct an investigation; it’s a dismissal of the issue.  NATO will conduct an after-action review in the form of “lessons learned” – a quite essential and useful exercise for guiding future operations – but apparently not a formal legal review of targeting.  This seems to me a grave mistake, for reasons I’ll detail below – and particularly a lost opportunity for the United States.  NATO should conduct a legal review of targeting in the Libya campaign, and the United States military should likewise undertake its own review of all NATO targeting in Libya.   I do not find anything in the Chivers and Schmitt report that looks to be negligent under the proportionality standard for collateral damage in the laws of war.  Liability is not the issue or the reason for a formal legal review (I suppose it might arise in a very extreme case of gross and wanton recklessness, but the legal presumption in favor of the commander’s good faith judgment on issues of proportionality is profound, and that does not appear to be an issue in what the Times writes).

The real reason for doing this is, instead, that the Libya hostilities offer an opportunity for the United States to examine targeting standards as state practice.  State practice defended as lawful, as undertaken by the United Kingdom, France, and other allies, in an operation undertaken on their initiative, and with their own equipment, intelligence, legal officers, targeting standards and operational law.

This is an opportunity for the US to enunciate a legal baseline of state practice in targeting regarded as lawful in particular factual circumstances by its closest allies.  And to do so in circumstances that are not Afghanistan after ten years of war, but instead a new situation, with vastly less intelligence and other capabilities than are available today in the Afghanistan conflict. Circumstances, however, in which the targeting, and collateral damage, was regarded by our closest allies and friends as being fully compliant with the laws of war.  And a conflict in which the usual outside human rights groups were lobbying for it as humanitarian intervention, and so had far less incentive than usual to try and use the situation to raise the bar on what constitutes lawful targeting.

Thus, the fundamental reason US DOD should insist on an event-by-event legal review of targeting state practice is implicitly to reiterate that the standards applied in Afghanistan today are proper and virtuous – and also that they far, far exceed any legal requirement.  And that the US’s NATO allies demonstrated important state practice which they regarded as lawful in the conduct of the Libya operations.  Because the next time the US goes to war, it will likely be a lot closer in its initial intelligence and information about targeting to what just took place in Libya than what goes on today in Afghanistan.  The US should be able to draw upon the detailed, incident-by-incident state practice of its closest allies, and their defense of those practices as lawful, as support for its own conduct.

That’s my basic policy take-away – a plea to DOD to insist on a serious analysis of what was regarded in Libya as lawful targeting, including acknowledgment of its limitations and regrettable yet lawful collateral damage.  Ideally there would be an internal version.  But also, importantly, a public version aimed at emphasizing that the “commander’s discretion” under the law of war is real and that the laws of war provide a firm safe harbor for commander’s decisions on targeting – and doing so on the basis of evaluating the particular targeting practices in the Libya operation by allied NATO forces.

Below the fold, a little more discussion of the Times article itself and the crucial role of ground level intelligence in the conduct of drone warfare and targeted killing.

Continue reading ‘DOD and NATO Should Undertake Libya Targeting Review to Establish State Practice of Lawful Targeting’ »

Over at Lawfare, Benjamin Wittes and Robert Chesney have put up a FAQs on the NDAA – required reading for everyone dealing with the legislation.  (Lawfare has been the single most important resource to keep track of the NDAA and what it means. Of course, full disclosure, being the Reviews editor, I am not entirely dispassionate: but nearly.)

The volume of sheer, unadulterated nonsense zipping around the internet about the NDAA boggles the mind. There was a time–only a few months ago–when the NDAA detention provisions were the obscure province of a small group of national security law nerds. Now, however, this bill has rocketed to international notoriety. The added attention to it is a good thing. It’s an important subject and warrants genuine debate and discussion. The trouble is that much of the discussion is the intellectual equivalent of the “death panel” objections to the health care bill. While certain journalists have done a good job covering the controversy, it’s much easier to get bad information than good. The reader who wants answers to simple questions faces a confusing array of conflicting information.

Here then, as a public service, is an NDAA FAQ–a simple attempt to lay out the key questions people are asking about the NDAA and answer them as simply and neutrally as we can. Many of the answers here we have discussed in greater depth elsewhere on the blog. We will link to those posts for readers who want greater depth. This is an overview, a Guide for the Perplexed.

The great Christopher Hitchens has died.  Our families were friends; our deepest sympathies to his wife Carol and his children.  For my own part, this is how I remember Hitch, from Cyrano de Bergerac, Act V: Cyrano’s Gazette (comments are open):

He attacks the false priests, the false nobles, the false landowners, the false artists:

In short, he attacks everyone!

The Santa Futures markets suggest that I am likely to receive Emanuel Derman’s Models.Behaving.Badly come Christmas morning.  I am looking forward to it, more so after reading the great Burton Malkiel’s review in today’s Wall Street Journal (perhaps behind a paywall, but maybe not).  Malkiel speaks highly of the cross-disciplinary erudition that runs through the book – and its underlying criticism of financial economic theory as offering itself as physics when it is really something like The Imitation of Physics – a metaphor and a simulacrum:

Trained as a physicist, Emanuel Derman once served as the head of quantitative analysis at Goldman Sachs and is currently a professor of industrial engineering and operations research at Columbia University. With “Models Behaving Badly” he offers a readable, even eloquent combination of personal history, philosophical musing and honest confession concerning the dangers of relying on numerical models not only on Wall Street but also in life.

Mr. Derman’s particular thesis can be stated simply: Although financial models employ the mathematics and style of physics, they are fundamentally different from the models that science produces. Physical models can provide an accurate description of reality. Financial models, despite their mathematical sophistication, can at best provide a vast oversimplification of reality. In the universe of finance, the behavior of individuals determines value—and, as he says, “people change their minds.”

In short, beware of physics envy. When we make models involving human beings, Mr. Derman notes, “we are trying to force the ugly stepsister’s foot into Cinderella’s pretty glass slipper. It doesn’t fit without cutting off some of the essential parts.” As the collapse of the subprime collateralized debt market in 2008 made clear, it is a terrible mistake to put too much faith in models purporting to value financial instruments. “In crises,” Mr. Derman writes, “the behavior of people changes and normal models fail. While quantum electrodynamics is a genuine theory of all reality, financial models are only mediocre metaphors for a part of it.”

This is not a new critique; it is the core of that made by George Soros and his theory of “reflexivity” of markets; the core of criticisms made by social theorists of market relations.  But coming from Derman’s special place in finance, it carries special interest, and I look forward to immersing myself in it and giving my own assessment of the book.  Of interest from Burton Malkiel – I own most if not all of the successive editions of A Random Walk Down Wall Street – is his criticism of Derman’s presentation of the Efficient Market Hypothesis (or Model):

Nevertheless, Mr. Derman is perhaps a bit too harsh when he describes EMM—the so-called Efficient Market Model. EMM does not, as he claims, imply that prices are always correct and that price always equals value. Prices are always wrong. What EMM says is that we can never be sure if prices are too high or too low.

The Efficient Market Model does not suggest that any particular model of valuation—such as the Capital Asset Pricing Model—fully accounts for risk and uncertainty or that we should rely on it to predict security returns. EMM does not, as Mr. Derman says, “stubbornly assume that all uncertainty about the future is quantifiable.”

The basic lesson of EMM is that it is very difficult—well nigh impossible—to beat the market consistently. This lesson, or “model,” behaves very well when investors follow it. It says that most investors would be better off simply buying a low-cost index fund that holds all the securities in the market rather than using either quantitative models or intuition in an attempt to beat the market. The idea that significant arbitrage opportunities are unlikely to exist (and certainly do not persist) is precisely the mechanism behind the Black-Scholes option-pricing model that Mr. Derman admires as a financial model behaving pretty well.

Perhaps this is all that the EMH ever meant for Malkiel and other leading sophisticates of finance theory:  ”What EMM says is that we can never be sure if prices are too high or too low.”  Put that way, it is a demure theory, a sweet theory of downcast eyes and modest mien.  But I have two doubts.  One is simply that this is not what I took away from the general presentation of it by leading finance theorists in the 1980s, when I first learned it in classes at Harvard Law School and sitting in on classes at Harvard Business School and sitting in on my undergraduate girlfriend’s econ classes.  Perhaps I misunderstood drastically, but it seemed to be regarded as a much stronger proposition than that.  Indeed, in the hands of my law school corporate finance professor, it was not an empirical proposition so much as a logical one because it described the necessity of an equilibrium system and then imputed it to the real world, Dr. Pangloss-style.  As a former philosophy student, it troubled me as a logical move, but what did I know about finance?

Second, even if the leading finance theorists had some more modest theory than I took from my professors, as applied in the world at large, it did take on the characteristics of an a priori theorem grounded in logical necessity.  Like many subtle theorems applied mechanically, and without practical skill, it took on a life of its own and became its own authority.  One reason for this is that the version of the EMM that Professor Malkiel proffers above is purely a skeptical one – the inability to know.  To have application in the real world, it has to be converted from a proposition in skepticism to a positive proposition about a realm of bounded rationality; in making that move, however, we have gone a far, far distance in what we are proposing we might know and, moreover, we are apt to forget that the rationality of equilibrium applies only within bounds.  There is a reason that each time I read papers on the foundations of the EMH, I think mostly of my first classes in Skepticism and Rationality, not economics; it appears that Derman (like Soros) has that same reaction, more or less.

So I am not sure I agree with Professor Malkiel that Derman is overly harsh on the EMH as preached and applied in the world.  I think its strength – its epistemic status – has gone up and down in waves over the decades, and of course part of that is reflected in the successive discussions of it in Professor Malkiel’s own book (and I should add that his last book on practical investing is the only one I’ve ever handed to my daughter).   So let me put it to our readers:

What year did you first learn the EMH, what was the disciplinary setting (undergrad econ or business, grad econ, B-school, law school, etc.), and what was the strength of the proposition (not just the usual weak, semi-strong, strong, but its epistemic status – empirical thesis or logical corollary of equilibrium).  And does it appear to have been re-stated and re-formulated over the course of your awareness of it?  Comments are open.

PS. These comments are very interesting; I am interested in the actual years when you learned about the EMH and how because I think it (perhaps) has been framed somewhat differently at different moments over the last couple of decades, so the actual years matter.  In my case, in the early 1980s.  I should add two things.  One is that I revere Professor Malkiel, which is why I was intrigued to see him review this book.  The other is that there is a special, super-weak, but alas incontrovertible version of the EMH, viz., that neither Anderson, nor any Anderson gene-bearers, will ever beat the market.

So how should the outcome of the Durban conference, the UN’s latest climate change confab, be interpreted?  Looking at it strategically, adopting by assumption the standpoint of wanting to see maximum binding international legal enforcement, how did things fare? I see three general interpretations on the table: optimists, pessimists, and mitigators.  And add a fourth, skeptics – skeptical in this instance on both the negotiations and the underlying issue, so not fitting into the starting assumption.

Optimists: Daniel Bodansky (a preeminent international environmental law scholar who is a leading theorist of ways in which international climate change negotiations can overcome what might otherwise be seen as daunting collective action problems) offers the optimist position at the international law blog Opinio Juris.  He wrote a series of posts from Durban for OJ, which are well worth reading, and his latest post sums up the glass-half-full optimist view:

As compared to the expectations going in, the outcome was more than I think most people thought possible.  In a pre-Durban paper entitled “W[h]ither the Kyoto Protocol,” I identified three scenarios: (1) business-as-usual, with modest progress in developing the Copenhagen/Cancun framework and no political breakthroughs; (2) agreement to a “political” (not legally-binding) second commitment period under the Kyoto Protocol; and (3) agreement to a Kyoto Protocol amendment establishing a second commitment period, combined with a mandate for a new negotiating process to develop a legally-binding agreement addressing the emissions of the other major economies.  Many thought that (1) was the default option, (2) represented the best-case scenario, and (3) was politically unrealistic.  But the Durban outcome is in fact closest to (3):

• It wrapped up much of the remaining work to elaborate the Copenhagen/Cancun process, by adopting the governing instrument of the new Green Climate Fund and a transparency rules for both developed and developing countries pledges.
• It agreed to extend the Kyoto Protocol by another 5-8 years.  Although the emissions targets for Kyoto’s second commitment period still need to be worked out, and the formal amendment won’t be adopted until next year, the basic political decision to extend the Protocol was made in Durban.
• It agreed to launch a new negotiating process to develop a “protocol, another legal instrument, or agreed outcome with legal force,” addressing the post-2020 period  and “applicable to all Parties.”

The Durban outcome seemed unlikely because there was little indication that China and India would agree to negotiate a new agreement to limit their emissions.  Without agreement by China and India, the United States had said that it would not agree to a new round of negotiations.  And without agreement by the United States, China, and India, the European Union would not agree to a second commitment period under the Kyoto Protocol.  What allowed the Durban outcome was a careful compromise that gave BASIC countries, on one side, a 2020 start date for the new agreement and some ambiguity about its legal character (about which more below), and gave the EU, small island states and least-developed states, on the other side, early start and end dates for the negotiations (the negotiations will begin next year and conclude in 2015)  and language that the outcome of the new negotiations will have “legal force.”  Interestingly, the United States apparently played something of an intermediary role, since it had some flexibility about the issues of both dates and legal form.  In the end game of Durban, India was unwilling to accept a mandate to negotiate  a “protocol or another legal instrument,” and preferred the formulation “legal outcome.”  The United States suggested “outcome with legal force,” India added “agreed,” and the EU said ok.  Thus the deal was done.

Pessimists:  Michael Levi, a Council on Foreign Relations senior fellow, offers a different and far more pessimistic assessment.  He is particularly concerned to counter the fairly upbeat stories in the Western press on what had been accomplished, and goes to the nitty-gritty of the actual language of the Durban agreement – which is to say, what was actually agreed and not simply skepticism that whatever was agreed, down the road parties would nullify it through defection.

The Durban climate talks are over, and many are celebrating. After repeatedly reaching the brink of collapse, the summit produced agreements on several counts. The Associated Press reported that it approved a “landmark deal” that was “meant to set a new course for the global fight against climate change for the coming decades”. Christina Figueres, head of the system that oversees the talks, heralded the arrival of a “remarkable new phase in [the] climate regime”.

Nonsense.

Most of the agreed texts fleshed out matters left unfinished last year in Cancun: rules for a new climate fund, the structure of an international network of technology centers, a scheme for avoiding deforestation, and parameters for a system meant to increase the transparency of countries’ emissions-cutting actions. It is this part that will have the greatest substantive impact and is worthy of celebration. A climate fund with good rules, for example, is more likely to attract money and to use it well, while a sound system for auditing countries’ climate efforts will make it easier to create a virtuous cycle of action.

But it was not debate on these matters that took the talks to the edge, and it was not resolution of them that inspired the most applause. Instead, it was an agreement to initiate “a process to develop a protocol, another legal instrument or an outcome with legal force under the Convention applicable to all Parties” that has led commentators to conclude that there will be a new treaty that will legally bind all countries to reduce emissions. Alas, that conclusion is not warranted.

I myself have substantial doubts, given the state of public finances in the developed West, that the climate fund will work out as planned or as Levi hopes (Levi is no fool, so I don’t mean to suggest that he thinks it will actually work as advertised).  I myself view it as a sort of “stranded capital” or legacy of an earlier period in which, to use the melancholy phrase in Spain, “we used to be rich” - cuando eramos ricos.  This is not just a problem of broke countries who promise but don’t actually pay up when confronted with the problem of paying public pensions at home or facing riots. (Or, not to put too fine a point on it, Western countries borrowing money in Asian markets at substantial interest to contribute to global funds.)  It is, more broadly and over the long-term, the problem of conjoining three things: Continue reading ‘Interpreting the Durban Climate Change Conference Outcome’ »

Last week I commented on and linked to posts at Lawfare by University of Texas’ Robert Chesney analyzing the Senate version of the National Defense Authorization Act and its detention provisions, including US citizen detention.  This is very much a moving target, with the House and Senate versions of the bill having moved to conference for reconciliation.  Chesney, Wittes, and others at Lawfare are continuing a close read of the successive versions, and if you want to stay abreast of things, go to Lawfare.  At this point, Chesney observes with respect to US citizen detention (you need to read Chesney’s linked series of posts to really understand the background):

[T]he [conference] language is the same as in the final Senate bill:

Section 1021(e)  AUTHORITIES.—Nothing in this section shall be construed to affect existing law or authorities relating to the detention of United States citizens, lawful resident aliens of the United States, or any other persons who are captured or arrested in the United States.

That is, the NDAA should not be read to express views on such questions one way or the other, but rather the matter if litigated should be decided under the original AUMF just as it would have been absent the NDAA. But note that the language is not sufficiently clear whether this rule of construction is meant to encompass citizens and LPRs captured anywhere, or just when captured in the United States itself. That is, should the “captured or arrested in the United States” clause at the end be read as modifying only the language “or any other persons,” or instead as modifying all three categories listed in that sentence?

Chesney goes on in a separate Lawfare post to observe that the “mandatory military detention” is not actually very mandatory:

Section 1022 of the Conference version of the NDAA carries forward section 1032 of the Senate version, which has been widely described as a mandatory military detention provision for a subset of detainable persons who are non-citizens linked to specific terrorist attacks. Both critics and supporters of the bill have focused heavily on this notion, lauding or decyring it. All of that is greatly overstated, however. The final bill applies to persons who are part of al Qaeda or an al Qaeda-associated force who is not a citizen and who was part of a particular attack or planned attack. Think Abdulmutalab. At first blush, it seems as if it channels such persons ineluctably into military custody, even when captured in the US. But on closer inspection that’s not at all the necessary result, for three reasons.

Read the Lawfare post to find out his three reasons.  Or, as Glenn Reynolds might put it, read the whole thing.  But in this case, the target is moving such that you have to read backwards and forwards.

This link from the BBC has been making the rounds via Twitter and FB, but I thought I’d link it for readers.  The focus is on sovereign debt and the eurozone, and it is a fascinating collection of graphs from a mixture of economists looking at 2011 through graphs of various economic and market indicators.

Charles Lane being the New Republic editor at the time of Glass’s principal “fabulisms.”  Jack Shafer has done an excellent job going through documents in the matter of Stephen Glass seeking a license to practice law in California; once it was taken up by the California Supreme Court, the documents related to the bar matter became public, and Shafer has read them.  It’s a lengthy and, if you have a taste for therapeutic explanations, fascinating tale; Glass seems to be pleading mostly a bad childhood with Tiger Mom & Dad creating insecurity and deep phobias that made it seemingly irresistible to say whatever was needed to succeed.

The concern of the California bar committee that originally rejected his application seemed to have been rather more concerned with what it saw as sparse evidence that he was actually sorry for what he did or was instead merely strategic in the aftermath.  ”Fabulism,” after all, is a remarkably loaded, or if you like, unloaded way of describing what one might otherwise call bare-a***d lying.  Shafer is circumspect in his own views, but notes that a slew of law partners and law professors – including Opinio Juris’ very own Kevin Jon Heller – have all endorsed his fitness to practice.  He also, however, notes just how deeply unattractive a lot of Glass’s arguments are.  Let’s just say I’m not persuaded; however, the person whose opinion most interests me is the eminently decent and sensible Chuck Lane.

Glass actually won his appeal and had the bar’s panel rejection overturned by a California appellate judge; it takes four justices of the seven person California Supreme Court to take an appeal, so it suggests that there is some contrary concern there.  In any case, perhaps it’s in the original article and I missed it, and I do not know if this is true, but someone tweeted me to say that even without benefit of a law license, Glass is currently earning $154k as a paralegal.  Comments are open.

I’ve been asked the question as to whether the National Defense Authorization Act (NDAA) permits indefinite detention of US citizens, and whether, if it does, it adds anything to existing law on US citizen detention.  The quick one line answer is that, at least in the Senate version of the bill, it permits military detention (and, by implication and absent other considerations of law, detention to the end of hostilities), but only to the extent that existing law already does.  The Senate version of the bill says it merely affirms that status quo on this issue.

I am going to crib extensively from Robert Chesney, writing today at Lawfare.   (Lawfare, a project of the Brookings Institution and Harvard Law School, and founded by Benjamin Wittes, Robert Chesney, and Jack Goldsmith, is the go-to online daily journal on national security law; careful, measured, never crazy, and scrupulous about separating objective description from prescriptive comment.  I serve as the Reviews editor, full disclosure. Lawfare is currently doing a side by side comparison of the House and Senate versions of the bill, if you want the technical details.)  Says Chesney regarding military detention of US citizens:

On the day that the Senate passed its version of the NDAA, I wrote a post in the morning addressing whether the bill could be read to affirm that detention authority extends to US citizens. Reading the existing language of section 1031 in conjunction with section 1032, I concluded that the best reading of the bill was: yes, section 1031 encompassed citizens. Later that day, Senator Feinstein offered an amendment to the bill in an effort to preclude that outcome, by explicitly altering section 1031 so as to state clearly that citizens are not included. This amendment failed. Still later, she offered a fall-back amendment, altering section 1031 so as to say that it should not be construed as taking a position on the US citizen question one way or the other. That amendment was adopted, and is now part of the Senate bill as the conference on the NDAA gets underway.

Chesney then goes on to offer three scenarios in which the government could, in theory, attempt to hold a US citizen in military detention.  They are important to keep separate, and to attend to Chesney’s conclusion:

There are three scenarios in which the government in theory might try to use military detention with respect to a citizen, and the current state of the law is unclear as to two of them.

First, it might try to detain a citizen who is an arms-bearing member of the enemy’s forces in a foreign combat zone. Hamdi makes clear that detention authority does extend to that situation already, under the AUMF, and that this is constitutionally permissible (which is no surprise, in my view; In re Territo has long been a standard cite for that same proposition).

Second, the government might wish to detain a citizen found here in the United States, alleging involvement in al Qaeda or another AUMF-covered group. This issue arose with Jose Padilla, an al Qaeda member and U.S. citizen who was arrested on arrival at O’Hare Airport in Chicago and then eventually held for long period in military custody. He challenged that detention through a habeas petition, with mixed results. Suffice to say that the district judge felt that detention authority did not extend to this scenario, that the Fourth Circuit panel hearing his case somewhat avoided the issue by emphasizing the idea that Padilla previously had born arms on the combat zone in Afghanistan and thus was actually similarly-situated to Hamdi, that some observers were confident the Supreme Court would reverse, and that we never found out because Padilla was transferred to civilian custody in order to face prosecution (he was duly convicted and is now in jail). A similar case involving a non-citizen captured in the United States, Ali Salah Kahleh al-Marri, produced a similar result. In short, this is exactly what folks mean when they say that the status quo is unsettled on the question of authority to detain within the U.S.

A third scenario would involve an attempt by the government to hold in military custody a citizen linked to an AUMF-covered group who is captured outside the United States, but not in a hot battlefield context and lacking any prior connection to such combat operations. Say, for example, that Anwar al-Awlaki had been captured in a Special Forces raid in Yemen, rather than killed in a drone strike. We’ve not had a case like that yet, so it seems to me we’d have to say the law is at least somewhat unsettled as well.

So what does the NDAA have to say about any of this? Nothing at this point, thanks to the Feinstein amendment. For better or worse, the Senate version is explicitly agnostic as to these matters. If it is enacted with that qualification, then the government will be no more and no less able than before to assert detention authority over citizens, and the courts should be no more and no less likely to rule on the matter one way or the other.

So, strictly speaking, that describes military detention.  But the original question was about indefinite detention, so let’s be clear on the relationship.  Military detention points to at least the possibility of indefinite detention in this context because, broadly speaking, valid military detention is allowed until the conclusion of hostilities, which makes it potentially indefinite even without charges, trial, or judicial review, and absent any other consideration of law.  Here, from an earlier Chesney post at Lawfare, is how Feinstein described the conundrum and her own amendment to the Senate version of the bill (I’ve added some italics):

Despite my [Senator Feinstein's] support for a general detention authority, the provision in the original bill, in our view, went too far. The bill before us would allow the government to detain U.S. citizens without charge until the end of hostilities. We have had long discussions on this.  The disagreement arises from different interpretations of what the current law is. The sponsors of the bill believe that current law authorizes the detention of U.S. citizens arrested within the United States, without trial, until “the end of the hostilities” which, in my view, is indefinitely.

Others of us believe that current law, including the Non-Detention Act that was enacted in 1971, does not authorize such indefinite detention of U.S. citizens arrested domestically. The sponsors believe that the Supreme Court’s Hamdi case supports their position, while others of us believe that Hamdi, by the plurality opinion’s express terms, was limited to the circumstance of U.S. citizens arrested on the battlefield in Afghanistan, and does not extend to U.S. citizens arrested domestically. And our concern was that section 1031 of the bill as originally drafted could be interpreted as endorsing the broader interpretation of Hamdi and other authorities.

So our purpose in the second amendment, number 1456, is essentially to declare a truce, to provide that section 1031 of this bill does not change existing law, whichever side’s view is the correct one. So the sponsors can read Hamdi and other authorities broadly, and opponents can read it more narrowly, and this bill does not endorse either side’s interpretation, but leaves it to the courts to decide.

Because the distinguished chairman, the distinguished ranking member, and the Senator from South Carolina assert that it is not their intent in section 1031 to change current law, these discussions went on and on and they resulted in two amendments: our original amendment, which covers only U.S. citizens, which says they cannot be held without charge or trial, and a compromise amendment to preserve current law, which I shall read:

On page 360, between lines 21 and 22, insert the following:

“Nothing in this section shall be construed to affect existing law or authorities relating to the detention of United States citizens or lawful resident aliens of the United States or any other persons who are captured or arrested in the United States.”

This compromise amendment passed in the Senate version of the bill.  As Chesney notes in this earlier post, there are other considerations of law regarding detention in any case, so that any detention authority has to be qualified at a minimum by habeas rights.  (Chesney is responding here to an article by Conor Friedersdorf at the Atlantic; he quotes from Friedersdorf’s claim that the NDAA would allow the President to indefinitely detain even US citizens without judicial review):

Specifically, [Friedersdorf] suggests that the bill authorizes the president to detain anyone whom the president simply declares to be a terrorist, without judicial review:

“Congress is poised to affirm that President Obama and his successors can imprison whomever they want, for as long as they want, on no authority but their own, so long as they first assert that the person in question is a terrorist. They needn’t present evidence, or persuade a judge, or get a majority of votes from a jury. Just whispering “he’s a terrorist” is enough.  Yes, even if the suspect is an American citizen.”

This is simply not so, however, given the availability of habeas corpus review. Any citizen held in military custody anywhere, regardless of where captured, will have such review. Any non-citizen captured in the United States will have such review. And though there is still uncertainly surrounding the question, it is most likely the case that any non-citizen captured somewhere other than the Afghan combat zone would get habeas review as well. Only combat captures of noncitizens in Afghanistan are, on this view, subject to executive discretion alone, as has literally always been the case in all combat zones in which the U.S. has ever taken prisoners.

Some readers will say in response to this that habeas review is mere window dressing, citing the string of victories the government has enjoyed in the D.C. Circuit of late. I disagree with that view very much. There is a lot of room for debate about whether the Circuit’s jurisprudence draws the line correctly in terms of figuring out what counts as proof that a person has become part of al Qaeda or the Taliban or associated forces, but the idea that the status quo leaves the government with discretion, in practice, to pretextually detain “domestic enemies” is simply not tenable, in my view.

I agree with Chesney’s view on the substantive issues above; there is one clear circumstance in which military detention of US citizens is permitted, and two legally unclear scenarios; there is also habeas review by the courts.  The Senate version of the bill does not alter that status quo, but kicks it back to the courts to decide as to the unclear scenarios.

Lastly, I’d add that in virtue of being statutorily prescribed as the court for hearing detainee appeals, the DC Circuit has emerged as something of the US’s de facto national security court; it has been gradually working out the contours and standards of habeas review and all the procedural and evidentiary questions that are implied by that.  If you want to follow the jurisprudence of the DC Circuit in these habeas and related cases, Lawfare is required reading for journalists, policy people, academics, and government officials.  (I’ve left comments on for this post.)

Tempted though I am to crowd-source my Business Organizations exam and invite the Conspiracy commentariat to write it for me, I instead refer you briefly to this end-of-year list from Time Magazine, naming Occupy Wall Street as the most important news story of 2011.  (I suppose it is not completely clear whether being number one on the list of ten means most important, but that’s what it looks like to me, looking at how this and the rest of the top ten stories are written.)  Indeed, so important does Time see this story that they headline it, “Occupy Wall Street Protests Spread.”  OWS protests are spreading?  Regular readers know that I have particular views on the ideological and intellectual configuration of OWS, but leaving that aside, I invite comment on the question of whether, like OWS or hate it, you would agree with Time that this is the, or at least a very, top news story of 2011.  Alternative nominations also invited. Or you could draft my BA exam.

Over at the New Yorker, Jeffrey Toobin offers a short, breezy look at litigation likely to get a lot of public attention and debate next year.  His “coming year’s top five legal stories” are

• Health care reform cases
• Same sex marriage in California
• Affirmative action
• Football
• Celebrity arrest

I don’t have an opinion; the legal issues I follow aren’t typically litigation oriented and are not much related to public attention; it doesn’t seem likely that the Alien Tort Statute in the Supreme Court would make anyone’s list but mine.  But this is a list not about true, deep  or lasting significance, whatever exactly that means, but about media and public attention.  It’s also not limited to SCOTUS.  Within that take on “big legal stories,” what is your list of five for 2012?  Comments are open.

Insta points us to this scatterplot at the Chronicle of Higher Education.  It plots (within the limits of reported numbers, and in any case limited to private universities) university president salaries against average professor salaries within that institution.

The thing I found most surprising was not so much the university president salary as the average professor salary, and not just in places like New York or at the Ivy League.  Average and skewed by outliers, I’m sure, but just randomly eyeballing numbers, I was surprised at how well compensated professors are.  Again, just randomly clicking dots, these seemed like numbers I would associate with salaries at the professional schools, not institutions overall.  I’ve left comments open.

(Cranky Professor’s comments here, and Anon Jim in comments is right to distinguish salary from compensation. I remain surprised.  Also, a commenter suggests that the university is best understood as having tenured faculty and senior administrators as shareholders – correct or not? What is the right public choice model to account for the university and its governance?)