It is time to stop letting English law allow wealthy Saudis and others to undermine the First Amendment. Floyd Abrams, the renowned First Amendment lawyer, calls for putting a stop to ‘libel tourism’ - by which Cambridge University Press and other supine publishers, under libel threat in England, not only pulp books without so much as a legal fight, but actually demand successfully that American libraries take them off the shelves. Floyd Abrams, “Foreign Law and the First Amendment,” Wall Street Journal, April 30, 2008.
Wednesday, April 30, 2008
Monday, April 28, 2008
So Ian Fleming was a fan of the TLS? And even once wrote a review for it? See TLS editor Sir Peter Stothard’s blog note in advance of the new issue.
ps. I am pleased to see that a new Bond series of novels is coming out - with Sebastian Faulk at the writing helm - and quite eager to get the new one, Devil May Care, from Amazon when it appears at the end of the month. I just pre-ordered it for my wife for her birthday, in fact, so I hope it’s good, but I have a lot of confidence in Faulk.
Posted by KA at 8:34 PM
Saturday, April 26, 2008
Peter Bernstein, the Wall Street investment banker turned historian, and the first editor of the Journal of Portfolio Management, has a very interesting interview in today’s WSJ (link via Moneyweb).
Bernstein, now 89, has written wonderful books on the nature of contemporary finance economics. I once reviewed his Against the Gods: The Remarkable Story of Risk, in the TLS back in the mid-1990s. I have the review posted as an open access download at SSRN; as the financial crisis has taken off, I note that it has been increasingly downloaded.
All of Bernstein’s books are worth reading, including the ones that deal with the new hedging and leveraging strategies in finance. But I think Against the Gods is his best book, a genuine classic in finance, one that succeeds wonderfully in offering a highly informed understanding of risk economics to the non-mathematical reader but, more importantly, succeeding in revealing it as a core cultural and historical competency of Western culture from the Renaissance forward, a crucial element in the growth of capitalism but an independent cultural and intellectual history all its own.
“Mr. Bernstein, whose books include "Against the Gods: The Remarkable Story of Risk," sees two culprits. One is the abuse of securitization -- the trend for banks to hold fewer loans on their books and instead turn them into securities that were sold to other investors. The other is simply years of overborrowing by financial institutions and consumers alike.”
Bernstein sees the crisis taking much longer to resolve than many analysts, used to the Fed waving its magic wand, seem to think, and thinks the resolution will be shallower with less upside. Strikingly, however, he sees an environment in which those with the capital to take risks will find opportunity. Why? Because the resolution of the crisis will entail a long term pull back in risk and credit. Opportunities will be available for those able to take risks - but the crisis will severely limit the credit available for such risks. Those with available resources will be able to take advantage.
Also, Bernstein suggests that although a recovery in real estate is crucial for the economy, it is too hard for regular investors to enter such areas easily - too much money is involved, and credit too tight. So he suggests - I was intrigued by this, because it struck me as counterintuitive - the stock market as offering a complete range of risk but with some level of liquidity unlike real estate.
(Unrelated: there is one other great book on finance as intellectual history, political theory, a whole bunch of intriguing things run together, well worth reading, and that is James MacDonald’s A Free Nation Deep in Debt.)
Posted by KA at 7:30 AM
Thursday, April 24, 2008
The background to the post below, urging the Nobel Peace Prize to the South African longshoremen’s union, is as follows. I’ve have moved it separately in order to not mix up that call with my own special views on broader topics of international law. So:
I was asked a few days ago by the Africa department of a major international philanthropy which, safe to say, is strongly pro-international organizations and global governance, as to whether I could think of any basis in international law to prevent the shipment of Chinese light weapons to Zimbabwe where chances seem pretty excellent they would be used to kill the political opposition to Mugabe.
I got my research assistants on it and, unsurprisingly, we couldn’t find any. After all, as I pointed out to the foundation, if you take the position that, in order to constrain the United States from wicked unilateralism by saying that things like embargoes and sanctions must be approved by the Security Council, the price will be that when you want to constrain China, you don’t have any easy international law mechanism to do so. That’s because you already decided that the Security Council would be not simply the political meeting ground of the great powers, but something much more ambitious, the supreme arbiter of a federalized global governance system in what Kofi Annan called, in one of his worse moments, our “fledgling collective security system.”
Hence things like ‘responsibility to protect’ (probably not applicable because, horrendous at the situation is, it probably is not at the level contemplated by R2P, but maybe I’m wrong about that, if you count starvation) under the UN 2005 General Assembly reform document require that the Security Council approve action. I am willing to contemplate a different interpretation of that language, as is the US State Department, and read it to permit unilateral or ad hoc coalition action such as NATO action. But that’s not how most countries understood it when they drafted it - they intended it as a constraint upon the US and NATO following the Kosovo war - and to claim otherwise is thereby just more US wicked unilateralism.
That’s not even mentioning the fact that Zimbabwe - at the United Nations General Assembly, the UN Human Rights Council, any of the UN organs that supposedly truck in the ‘values’ of the international community - is in jolly good standing.
You can come up with all sorts of very, very, very soft law that can usefully be cited in press releases. You can talk about actions that need to match the aspirations of human rights documents such as the ICCPR. But of course it’s aspirational values talk. So what?
And anyway, a lot of the idealist value of those documents on light weapons and small arms - the value that might have existed to deal with a government importing arms to mow down its own citizens in order to override an election it lost - has been frittered away because the global civil society activist community thought it more important to use what started as a generally laudable campaign against promiscuous shipment of small arms into various conflicts in Africa, and into the hands of ten year old militiamen, into a frivolous campaign for gun control in the United States. Not surprisingly, the language of those documents doesn’t have quite the same moral force against Mugabe when language quite appropriate against a dictator shooting his own people is profligately employed against lawful gun ownership in the US.
Look, I’m not a gun owner - I strongly favor Second Amendment rights along the lines that, say, Glenn Reynolds does, and I have come to agree on the evidence that to a considerable extent I and my family are free-riders on the security provided by gun owners - but I don’t personally much care about guns as such.
I have lots of experience, though, in how activists cheapen and exhaust their own rhetoric, by taking it from one context and promiscuously applying it to another. Beware easy political analogies. The entire light weapons and small arms campaign went from serious concern about flooding Africa with weapons to a fantasist’s view of gun control in the US. The activists might continue to believe that there is a simple continuum from Mugabe to concealed-carry laws in the US, but that way lies madness, and many in the international community have gone there. Leaving them with far fewer tools of rhetorical seriousness by which to confront the Mugabe’s of the world - if that, rather than railing against the United States, was ever their first priority.
Real action requires democratic sovereign states to stand up, not just to Zimbabwe, but even more importantly to the country that - forget the US - genuinely embodies pure amoral self-interest and unilateralism, China. Hard as it may be for the American or European progressive left to understand, there are indeed worse things - and quite possibly worse things to come - than American hegemony. And give some credit where credit is due - the strongest force in the international community against the Chinese arms shipment has been the US State Department. Not international law in the supposed fora of international law - plain old diplomatic pressure by a democratic sovereign. But even at that, the US did not have serious international support and it appeared quite likely that the shipment would go ahead.
Luckily, the South African longshoremen’s union stepped into the gap - physically and not just diplomatically. By refusing to unload the small arms off the Chinese freighter, and sending it back out to sea, they sent a message worldwide that no one else had sent.
Posted by KA at 12:30 PM
In the past few days, the South Africa longshoremen’s union refused to unload small arms from a Chinese freighter being sold by a Chinese company to Zimbabwe, where chances are excellent the arms would be used against Mugabe’s political opposition. By their own refusal to offload the weapons, and by encouraging their union fellows in other southern Africa countries to follow suit, they have done more than anyone else to stir up public moral outrage that has enabled the pressure of democratic sovereigns - the US and others - to have bite with China. They gave local moral cover to regional African organizations, whose individual countries have not been critical of Mugabe, to make statements against the arms shipments.
Judges in South Africa have also been very courageous in issuing orders against transshipment across South African territory. They have special tools in that the South African constitution incorporates international human rights standards into the local law in a way that is not true in other places, including the US. I think it is fine that South Africa’s constitution does so, under the historical development and circumstances of that country, in a way that I would not think right for, say, the United States. But it meant that judges were able to issue orders that, within that country’s constitutional order, were not exercises of judicial overreaching.
So my proposal is that the next Nobel Peace Prize be awarded to the South African longshoremen’s union for its contributions to world peace by standing up against arms shipments by an amoral, rising power, China, concerned only with commercial advantage and currying favor its fellow dictators worldwide, and standing up for the population of Zimbabwe when damned few in the rest of the world are willing to do so.
Give the 2008 Nobel Peace Prize to the South African longshoremen’s union.
(Hey, thanks to the Weekly Standard Scrapbook for the shout-out!)
(ps. I originally said 2009 prize, assuming that the 2008 process is either largely over or well underway. But then someone told me it wasn’t, and I should say 2008 prize. I don’t actually know, but would be happy were someone to take up this suggestion, either way.)
Posted by KA at 9:14 AM
Saturday, April 19, 2008
John Bellinger, State Department Legal Advisor, made a very important speech at Vanderbilt Law School on Alien Tort Statute litigation. I am not a fan of the ATS, and believe moreover that Sosa did virtually nothing to rein it in - all it did was give a judge inclined to go forward a formal checklist for going forward, and a judge inclined not to go forward a formal checklist for not going forward. That’s a long discussion. (I see Roger Alford has a very useful, detailed post at Opinio Juris.)
However, even beyond the question of the ATS, there is something that I regard as an even larger - and more intractable problem, of which the ATS is only a part - the inability of the US government to give out consistent opinio juris and coordinate it through the various executive departments. In particular, there seems to be no mechanism by which State, Defense, and Justice can put themselves on the same page and consistently present the same position whether to foreign governments, international organizations, and courts.
I realize that as a professor, I don’t really understand how hard it is to make policy and act on it, let alone have it be coordinated with other departments of government. I also have a vague, outsider’s idea that different parts of the government probably think that there already is okay coordination and broadcasting of US views - despite perceptions of people like me that the US does nowhere near enough to plainly state it and declare it to be opinio juris. So it is without any idea at all of how government works on the inside that I suggest some kind of coordinating, uh, something to establish and publicize consistent opinio juris. The task the US faces is to assert in a systematic way its state practice as its view of international rules of law. It needs to do so in an environment that is increasingly hostile to the idea of state practice as establishing international law, but also an environment that, being increasingly judicialized, has difficulty recognizing - because of its own rhetorical methods - anything that does not involve written pronouncements of one kind or another.
The government has not understood this fundamental shift - that courts find it much easier to look at something like the ICRC’s not-so-good customary law treatise rather than facts of US state practice. In part this is because something like the customary law study is easy to use - it looks, to a US judge, like a Restatement, with a bunch of reasonable sounding rules, and a judge can simply find a rule, apply it and cite it. State practice is often not very reasonable or rational from the standpoint of how a judge might reasonably see things - state practice is political. Indeed I doubt that very many ATS courts even understand that state practice does constitute a source of international law in any real way - it is so alien their domestic sense that law is a rational and rationally established set of norms. So they look instead for materials that conform to their domestic law sense of what law is supposed to be and how it is established. The US government needs to learn how to put forth its views consistently, in support of its state practice, and in a way that puts it forth as opinio juris. For that, government needs to be on the same page and say so publicly.
Let me make several observations regarding the ATS at the outset. The first is that ATS litigation continues largely unabated, despite the Supreme Court’s attempt in Sosa to rein it in. Second, the ATS has given rise to friction, sometimes considerable, in our relations with foreign governments, who understandably object to their officials, or their domestic corporations, being subjected to U.S. jurisdiction for activities taking place in foreign countries and having nothing to do with the United States. Third, the development of the scope of the ATS has largely been left to litigants and the courts, without formal involvement from Congress and largely contrary to the views of the Executive. This has been a problem, not least because many recent ATS suits have tended to implicate important aspects of U.S. foreign policy. In the end, there are good reasons for limits on the scope of the ATS – through courts exercising restraint, or if necessary, through legislation. We need to ensure the ATS does not complicate international efforts by the political branches to promote human rights abroad, a cause to which the United States is deeply committed.***
[T]he Court [in Sosa] identified a number of factors that counseled special “judicial caution” and a “restrained conception of the discretion a federal court should exercise in considering a new cause of action” under the ATS. Among other things, the Court recognized the “potential implications for the foreign relations of the United States” that “should make courts particularly wary of impinging on the discretion of the Legislative and Executive Branches in managing foreign affairs.” Accordingly, the Court stressed that devising new federal common law causes of action based on international law “should be undertaken, if at all, with great caution.” Justice Souter’s opinion summed up the situation: the door for ATS litigation was “still ajar subject to vigilant doorkeeping.”
Notwithstanding the Court’s directive for restraint, almost four years later, litigation has showed no signs of slowing down. Plaintiffs continue to push against the door the Court left “ajar,” arguing for expansive applications of customary international law. Among the suits courts have heard are a suit against an American company for selling Israel bulldozers under a U.S. military assistance program that were eventually used to demolish Palestinian homes; a suit against U.S. chemical companies that manufactured Agent Orange used by the U.S. military as a defoliant during the Vietnam War; a suit against two high-ranking government officials of the United Arab Emirates alleging involvement in abuses of underage camel jockeys; and a suit against a Canadian energy company for aiding and abetting human rights abuses by investing in Sudan. The Second and Ninth Circuits, in particular, have proceeded as before. One post-Sosa federal court has frankly conceived of its role as that of a “quasi international tribunal[ ],” dispensing an international law that “supersed[es] and suppl[ies] the deficiencies of national constitutions and laws.”
As it happens, I served as an expert defense witness in the Agent Orange litigation mentioned above. I was astonished in the hearing in front of Judge Weinstein that he referred at the beginning of the arguments to him sitting as a sort of international tribunal. The very young lawyer for the government plucked up his courage and told the judge that it was not an international tribunal but a district court of the United States under the laws and Constitution of the United States. Judge Weinstein took it all in good humor and rather admired the young man’s chutzpah. But it was obvious to me, watching, that Judge Weinstein was quite in love with the idea that he was a sitting international tribunal.
I would also add that although the Bellinger address focuses mostly on human rights issues as a foreign policy matter for the executive, the trend in ATS cases is actually more centrally about environmental and resource extraction issues, even if they are wrapped, for strategic post-Sosa reasons, into some version of human rights arguments. One important reason why ATS cases need new limitations is that US district courts are in effect creating a sort of US-centric “international law” that recognizes corporate and entity liability, and indeed civil liability, an international law of civil liability of corporations in environmental matters despite the absence of any treaty recognition of such. It is not merely US conservatives who have concerns about that - it is also international lawyers outside the US who are fully aware of the general refusal of the international order to establish either civil liability in international law or entity liability, and are also aware of the risks of creating different species of international law, one in US district courts, cross-citing each other endlessly to inflate a little jurisprudential, self-referential body of “international law,” and what others in the world do. I myself am not disturbed by the fragmentation of international law in this way, but I certainly would imagine that others might feel quite differently. But certainly in my world of the international law academy in the US, the ATS is more or less sacred ground, and virtually all the academic commentary little more - from my perspective - than an activist echo chamber.
[F]oreign governments do not see the ATS as an instance of the United States constructively engaging with international law. Quite the opposite: we are regarded as something of a rogue actor. We are perceived, accurately, as having in effect established an International Civil Court – a court with jurisdiction to decide cases brought by foreigners arising anywhere in the world, by the light only of its own divination of universal law, and through the extraterritorial application of U.S. law concerning rights and remedies. By itself, this can be grating enough to foreign governments. But it is especially so when taken together with both the fact that the U.S. often argues vigorously against the assertion by foreign courts of universal jurisdiction to hear cases involving U.S. officials, and the fact that the U.S. has declined to join the International Criminal Court because of concerns about that tribunal’s jurisdiction.And then the conclusion of the address:
In letters to the State Department or in amicus filings in federal courts, foreign governments consistently argue that the assertion of U.S. court jurisdiction over cases that have little connection to the United States is inconsistent with customary international law principles and interferes with national sovereignty. Canada, for example – internationally, a strong promoter of human rights and accountability for human rights violations –strongly objected to a case in the Second Circuit against a Canadian energy company for allegedly aiding and abetting human rights abuses in Sudan. The U.K. and Australia – also leading human rights advocates – have similarly argued that the scope of ATS jurisdiction is inconsistent with principles of international law.
When you consider the Sudan case, or the Apartheid case, from other countries’ perspective – a good thing to do generally in international law and relations – there is considerable force to these criticisms. Imagine, for example, what the U.S. reaction would be if a Swiss court sought to adjudicate claims brought against U.S. government officials or businesses for Jim Crow-era racial restrictions, or – since (without a statute of limitations) ATS suits can reach far into the past – even for slavery. As much as we might denounce past injustices, most of us would probably take offense at the notion that a Swiss court could hear such a suit and decide it based on the court’s own articulation of international law. The United States, after all, has come to terms with and sought to remedy the effects of slavery and Jim Crow laws through domestic measures under Acts of Congress and state laws resting on a strong moral consensus of our people – and according to the principles, procedures, and norms of our legal system. From the South African perspective, the Apartheid case must look very similar, and it is no wonder that the South African government has asked that the case be dismissed.
The problem that human rights enforcement must ultimately address – and for which the ATS is of little avail – is the failure of foreign countries’ own domestic rule-of-law institutions to prevent and provide redress for abuses. These failures cannot be fixed by any single policy program or lawsuit, and certainly not by making U.S. courts ad hoc claims tribunals. Rather, inculcating a respect for law and human rights takes a sustained and careful effort focused on strengthening legal institutions in foreign States, not necessarily expanding the reach of our own.Also over at Opinio Juris, Dave Glazier, whose work I admire but often, alas, disagree with, makes the
following observations in the comments. I think these observations are astute, although my general agreement with what Dave thinks is the result perhaps overly persuades me:
[F]rom a legal and historical perspective, I have to conclude that a narrow reading of the ATS makes far more sense. The original language from the Judiciary Act of 1789 is still recognizable in the current statute, but the original contains a couple of nuances I believe are key to understanding the intended scope of the law. The full 1789 text reads:
[district courts] shall also have cognizance, concurrent with the courts of the several States, or the circuit courts, as the case may be, of all causes where an alien sues for a tort only in violation of the law of nations or a treaty of the United States.
Points I take from this are:
(1) If federal ATS jurisdiction was to be concurrent with State courts, then the conduct envisioned to be actionable seems logically limited to acts taking hich takes place within the United States. Once admiralty and maritime jurisdiction was committed exclusively to the federal courts, it seems unlikely that State courts were considered to have any extra-territorial jurisdiction in the 18th century
(2) Don't the language's location in Art. 9 of the 1789 Act, which deals simply with federal jurisdiction, the reference to "tort," and the mention of concurrent State jurisdiction all suggest that the statute is purely jurisdictional and that a separate recognized cause of action is required to bring suit?
(3) Since it isn't until the 20th century that international law was considered capable of regulating a nation's internal conduct towards its own citizens, it seems wholly implausible to think that the Framers were intending to open U.S. courts to foreign citizens to sue other foreign parties for conduct that wasn't regulated by international law at the time. It is much more realistic to conclude that the ATS was simply intended to ensure that a foreigner whose diplomatic status or safe passage rights were violated while they were in the United States could have their case heard in a federal court. This interpretation seems entirely consistent with concerns expressed by leading figures during the Articles of Confederation period and several comments in the Federalist Papers.
While I personally wouldn't mind federal courts having a broad power to adjudicate egregioius human rights abuses regardless of where they take place, as a matter of law I just don't think that view of the ATS is persuasive. If the ATS creates actual causes of action to sue for violations of international law, that would mean that aliens had greater rights in U.S. courts than U.S. citizens, who would have to find a separate cause of action before they could sue. Surely neither the Framers nor any subsequent Congress intended that result!
Posted by KA at 9:32 PM
Friday, April 18, 2008
I just got out of a wonderful conference co-put on by Columbia Law School and Columbia History Department on the law of war, and the history of the law of war. It was great. I was in the splendid position of having been invited to attend - but without any obligations to present something. (My thanks to Matt Waxman and Philip Bobbitt for getting me invited!) I just sat and annoyed everyone around me by furiously typing notes. Which is what happens when you have Michael Howard, Philip Bobbitt, Ryan Goodman, and more on the panels. Really thoughtful presentations, comments, and all.
I was struck in this by the turning of historians’ attention to the law of war itself, and the discussion of the current debates within the moral philosophy community of just war theory and its history. John Witt, for example, one of the conference organizers, is working on Francis Lieber and the development of his Civil War era Lieber Code. It does seem to me a very rich area for work. Moreover, since one of my concerns about post-Walzer just war theory (which inevitably has a large cascading effect on law of war, at least in the US) is its general ahistoricism, the entry of legal historians and, I hope, intellectual historians into this area brings a welcome perspective to the discussion.
But it was a great, great pleasure to listen to the presentations, make more comments than I was really entitled to, and get a chance to meet some wonderful people. John, and everyone else who organized this thing, my thanks. And it was loads of fun to have a drink with Philip, John, Matt, and Ruti Teitel afterwards.
One of the pleasures of this short trip to NYC has been the chance to stay on the upper west side - meetings at Columbia, hotel at 77th and Broadway. Matt Waxman, Philip Bobbitt, and I walked down from Columbia after the meetings, straight through my old neighborhood at 93rd and Broadway. I walked back there this morning and took some camera photos of our old street, the great Hippo Park where Renee spent so many, many hours playing. All on a glorious spring day, everything in bloom.
It’s Saturday noon, and I’m sitting in a Cosi with free wifi before going to the train, at 78 and Broadway, looking out at everyone passing by. I sure do miss it. When I come to New York these days, it’s usually quick trips to Chelsea, and I rarely get up here to the neighborhood where Renee was born and Jean-Marie and Renee and I spent many happy years. The Cosi is filled with families with kids, going to the park, coming back, and they all look like us from ten years ago. Passover weekend, Fairway and Zabar’s jammed.
Posted by KA at 9:23 PM
Wednesday, April 16, 2008
The winner of the 2008 Pulitzer Prize in music is David Lang’s The Little Matchstick Girl Passion. I’ve listened to it several times, and have been very taken with it. The structural parallels to the Bach St Matthew Passion are striking. And the Hans Christian Andersen story has always seemed to me genuinely shocking. It can be heard at the Carnegie commissioned music site.
Posted by KA at 9:09 PM
Something I will do occasionally even on this semi-hiatused blog is post about books I think worth reading. And music too. Partly it is to keep them as a reference for me, but partly because I would like a larger audience - dozens and dozens at its heyday! - to be aware of these books.
Posted by KA at 9:06 PM
Sunday, April 13, 2008
I will be reviewing Philip Bobbitt’s Terror and Consent for a major book review in a couple of weeks, so I will refrain from saying anything about this book now. However, I strongly recommend reading Niall Ferguson’s review of it in today’s New York Times Book Review (Sunday, April 13, 2008). Strongly recommend. Ferguson says:
This is quite simply the most profound book to have been written on the subject of American foreign policy since the attacks of 9/11 — indeed, since the end of the cold war. I have no doubt it will be garlanded with prizes. It deserves to be. It is more important that it should be read, marked and inwardly digested by all three of the remaining candidates to succeed George W. Bush as president of the United States.
Bobbitt’s originality lies in his almost unique ability to synthesize three quite different traditions of scholarship. The first is history. The second is law, particularly constitutional law. The third is military strategy. This synthesis owes as much to the corridors of power as to the sequestered groves of academe. Bobbitt was an associate counsel to President Carter, legal counsel to the Senate’s Iran-Contra committee and a senior director on the National Security Council under President Clinton.
Posted by KA at 5:50 PM
Saturday, April 12, 2008
Ben Wittes and I were on a panel on Thursday at the meetings of the American Society of International Law, called writing for the mass media. Advice to law professors on how to place things in the mass media; I'm a bit of a fraud on that, as I don't really write that much for mass venues. Ben, on the other hand, is a real journalist. However, I did read to the audience the following email, received from my TLS editor in the midst of editing something years ago. I keep a copy up on my wall, although I can't really say I am good about following it. It's very good advice:
Monday, April 07, 2008
The New Yorker's Jeffrey Toobin has a new article on the future of Guantanamo. It features a visit to Guantanamo by Toobin, but also summarizes data developed by Ben Wittes on the characteristics of the detainees - any way to tell who is a continuing threat and who is not? - as part of his forthcoming book. It also has a very interesting discussion on the idea of a national security court, and is nice enough to mention a conference that Steve Vladeck, Dan Marcus, Ben Wittes and I put on at Washington College of Law, American University, this past February 1, on the idea of a national security court. Toobin attended that conference, which had an all star cast.