Kenneth Anderson's Law of War and Just War Theory Blog

For freedom to blaspheme and offend - thanks to whomever drew this cartoon

2010-05-20T17:47:00.001-05:00

The Obama administration's contrasting on-defense, on-offense responses to terrorism

2010-02-18T08:08:00.000-05:00

(Update: Since posting this, CSPAN has put up a link to DOS Legal Adviser Harold Koh’s ASIL-sponsored, informal public conversation with his predecessor, John Bellinger, on the question of the Obama administration’s approach to international law. My congratulations to everyone involved for putting on this novel and very illuminating event. I comment on it more extensively at Volokh. As I say at Volokh, I do not think one should over interpret what is said in an impromptu, unscripted event in which not every word is weighed up as a possible formal declaration of policy. However, Dean Koh does say several things about targeted killing; see my discussion at VC. My post below remains as incendiary as ever; I don’t think anything in that discussion alters my concerns about the US government’s general failure to articulate publicly the legal basis for its most effective “on offense” counterterrorism strategy, let alone address the many problems with its “on defense” policies. But I strongly recommend watching the Koh-Bellinger discussion, and again, my thanks to Harold Koh and John Bellinger for doing this kind of informal give and take for the public.)

This material is not going to make it into the final draft of a piece on Predator drone strikes, and it seemed to me perhaps too incendiary for either Opinio Juris or Volokh Conspiracy blogs, although maybe I will cross post there. The draft article from which this is extracted is about Predators, self-defense in international law and US domestic law, and reasons why the Obama administration is right to embrace targeted killing - but also needs to embrace the full legal rationales of self-defense that it requires. This extract is instead mostly about the contrasting failures of the administration’s “on-defense” counterterrorism responses. In particular, I think Republican conservatives are quite wrong to think that the Obama administration is either “soft” or “naive.” It is tough and sophisticated - and that has led it to frankly remarkable conclusions as to who can - to use the language of academic lawyers - most efficiently bear the costs of terrorism:

The United States is today in the peculiar position in which it has done better – innovated better, executed better – in counterterrorism “on-offense” than “on-defense.” Many things have gone flatfooted in US counterterrorism “on-defense.” Gone wrong, or never got going under the new administration, or simply stagnated in a bureaucratic morass – airport security, terror trials, interrogation, war versus law enforcement, and more. It is not, by the way, that the Obama administration is soft on terror. On the contrary, it is, if anything, even “harder,” more hard-headed and tough-minded than its predecessor.

Unfortunately, what its tough-minded, cost-benefit analysis seems to have told it is that indeed it needs to get tough – tough, however, on the American people. Tell the American public that the chances of dying in a terrorist attack (as liberal pundits are wont to point out because, one gathers, administration bean-counters, including John “Hey, 20% detainee recidivism is pretty darn good!” Brennan, have told them so) are less than the chances of getting hit by lightening or a drunk driver. Americans need to quit being such wimps and, if it comes to that, go down with the plane and take one for the team. Toughness on-defense counterterrorism for the Obama administration has meant getting tough, yes, but with the American people. Since Christmas Day, the administration has understood that is electoral suicide – but there is a big difference between policy undertaken from fear of electoral repercussion and policy undertaken because you actually believe it.

So score the Cheney team altogether as having maybe 10% of the administration’s most brilliant lawyers’ hyperactive neurons. But Cheney et al. had the advantage of the brutish, simplistic conviction that their problem, and their only problem, was to protect the American people from its enemies. Not to impose on it some exquisitely calibrated risk analysis. Cheney’s famous 1% doctrine is intellectually incoherent, as Sunstein has convincingly written. But as an operational doctrine, as a heuristic of execution rather than merely intellectual design, it recognizes that even if one does one’s damndest, something will still get through, which is why one does one’s damndest.

That’s a long ways from the current administration’s seeming view that whether one’s does one damndest or not, things will always get through - and learning to live with that is what passes as ‘social engineering’ in counterterrorism. As an exercise in risk analysis, it has the effect of passing the costs onto the American public, while telling the national security team that, whatever shit happens, they can feel good about themselves. This is the most sophisticated group of intellectuals in the history of government anywhere in the world when it comes to assessing risk. It is therefore doubly peculiar that the conclusion it seems to have drawn about protecting against terrorist risk is deeply fatalistic, as though one were betting ‘against the Gods’ - peculiar because, as the late Peter Bernstein noted in his masterwork on the intellectual history of risk, the point of risk analysis is to enable one to do just that. So which team would you rather have as your public security officials? The irrational security activists or the rational fatalists? The American public is not atavistic to prefer the former to the latter, even if the latter offers presumably a superior exercise in abstract risk analytics. I’m a fat tail, and so are you.

But if the Obama administration’s on-defense counterterrorism strategy is an intellectually superior, operational disaster, its on-offense strategy has been a completely different story. Predator drone strategy is something that has gone really, really well. “On-offense” counterterrorism has done better, ironically, under an administration that (let’s be honest) hoped it could just play counterterrorism on-defense, play for time, wind down wars, wind down “on-offense,” wish away the threat as a bad dream from the Bush years, while hoping the whole terrorism-counterterrorism meme would just fade away so it could focus on health care. Yet for all that, the Obama administration is playing effective hard-ass, hard-ball in counterterrorism on-offense. Through Predators, it is taking the fight to the enemy.

No matter what turn national security strategy in Afghanistan and Pakistan takes, or wherever else jihadist terrorist might regroup or form, drone strikes will be increasingly relied upon as a weapon. If the administration seriously doubles down on counterinsurgency in Afghanistan, UAV strikes against leadership hiding out in Pakistan becomes ever more important. That’s quite apart from attacking Pakistani Taliban intent on destabilizing Pakistan as well. On the other hand, if the administration moves to the “light footprint” that Vice-President Biden urged, or even exit from the ground war, UAVs become ever more crucial as the over-the-horizon mechanism for projecting discrete but implacable force. The same, but more so, in dealing with terrorist groups in other ungoverned places in the world.

Drones permit the US to go directly after terrorists, rather than having to fight through whole countries to reach them with boots on the ground – attacks directly against the terrorists and their leadership. Maybe that’s not enough to win. Maybe “light-footprint” counterterrorism via drones turns out to be the latest mistake in the perennial effort to find a way to win a war through strategic airpower. Yet even if the strategy is instead serious counterinsurgency on the ground (denial of the territory where the terrorists find safe-haven, rather than simply attacks against the terrorists) drones will still be increasingly important. Counterinsurgency strategy will still seek to attack terrorists directly even while clearing and holding territory. The upshot? No matter what direction the US moves strategically, drones will be an increasingly part of the “on-offense” part of that. This will become only more so over time, if the US gradually permits itself to develop and operationalize ever smaller, less detectable, more discriminate, more “sensor-laden,” and more individually lethal, remote-piloted UAVs.

So hooray for candidate Obama, and hooray for his administration. The Obama administration is right about this.

There is a lot of focus at this moment on the use of Predators in the Afghanistan offensive. Journalists seem to be discovering what they have not managed to discover in the Goldstone Report on Gaza, that, mirabile dictu, the insurgents use human shields, operate from mosques, and many other things that are encouraged by rules of war that put the legal and humanitarian burden onto one side. At this moment, the journalistic meme, focused on Our Brave Soldiers in the Field Under President Obama’s Good Faith Command, likes the idea of Predators and targeted killing. That is a swing back from where it was just a few weeks ago, as the journalistic herd scrambled to imitate Jane Mayer, and come up with pieces on the “rogue” CIA out assassinating everyone, including Americans, using Remote-Controlled Death From the Skies. The CIA is currently cool for having participated with Pakistan’s ISI to seize the Taliban number 2.

But journalistic sentiment will swing back again, particularly as the NGO community seeks to peel the CIA from the uniformed military in its use of drones and targeted killing. Even Vice-President Biden, preening over ‘taking the fight to Al Qaeda’ and beaming like a proud father over his flock of Predator gooselings, won’t stop the shift against the CIA using targeted killing. Meanwhile, one wonders if and when the administration’s senior transnationalist lawyers will come down from purely procedural, process-driven, abstract intellectual defenses of “multilateralism” and “engagement” and self-congratulation about the bodies it has joined - the UN HRC - and actually offer a legal defense of the administration’s actions in the field. A legal defense of actual actions, actual practices, with the breadth of legal defense that their full actual deployment requires. I wasn’t able to attend Harold Koh’s conversation with John Bellinger yesterday, but I understand John asked him about Predators. I am exceedingly curious, to say the least, as to the response. Without having seen the full videos of either Koh’s appearance or DOS international law counselor Sarah Cleveland’s UVA appearance, I can’t say for sure, but the initial reports seemed to suggest that the stance was one of saying that even a year in, it was still early innings, and not getting much more specific. That might be unfair and incorrect, and I’ll have to wait until the videos are available and will revise this as appropriate. But on initial take, well, much vision and much discussion about how long it takes to clean Augean stables - and my guess is that it will always be early innings, and it will always be vision but as little substance as possible.

So far, anyway, I would describe the defenses of actual practices that are seen by the administration as crucial to its national security strategy - targeted killings, using Predators or CIA teams or special forces or anything else, not just in zones of clear armed conflict, but elsewhere where safe havens are found - as missing. Not just anemic - but really not offered. When the legal defense is finally offered, I anticipate that it will be one based around an inadequate and narrow concept of combatancy and armed conflict, not self-defense of the kind that would go to the actual scope of what the US does, has always seen itself (and others) as entitled to do under international law, and will continue to do.

I draw a fairly simple conclusion from that. Leading lawyers in the administration appear to be acting as though this were going to be a one term administration. Their failure to offer a robust defense of targeted killing, to the full extent that it would almost certainly be contemplated by an administration planning on being around for another seven years, rather than three, suggests that they are hedging their bets and, in effect, offering a kind of private intrade-style prediction market for the inside players that they, and the President, will be back to being law professors sooner rather than later. In which case there is little point to offering the full range of legal defenses to the administration’s practices, if you anticipate being back in the NGO wing and going after a new, presumably Republican administration.

(Glenn, thanks very much for the Instalanche!)

Blogging at Volokh Conspiracy and Opinio Juris

2010-01-15T20:50:00.001-05:00

In case anyone is looking for me, I'm blogging these days over Volokh Conspiracy and Opinio Juris. I might occasionally stick up something here, but not very often.

Freely speculating on the future of the ATS in a multipolar world

2009-10-14T20:58:00.004-05:00

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

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

In addition to that, however, I conclude the paper (this is still in first draft, believe me, and far from even going up on SSRN as a working draft) with a speculation about whether the case law developing around corporate liability in the ATS will remain stable in a world in which the US chooses decline and allows the emergence of a genuinely multipolar world, a world in which China is a much, much bigger player, as in creditor and debtor:
I do not think, however, that the final chapter has been written on corporate liability under the ATS. In the real world, I do not think that the pushback has begun to be felt in the US or in US courts. At that point, I suspect that some will wonder whether (from the standpoint of the 'progressive integrity' of international law, the perspective I am freely (and perhaps overly-imaginatively) attributing to a Professor Greenwood or Crawford on the basis of their Talisman declarations, not from a vastly more skeptical position such as my own) the jurisprudence of the ATS has not actually undermined a systematic development of international law norms with respect to civil liability, tort liability, corporate liability, and specific bodies of norms such as labor or the environment. The future historian of international law might well conclude that the era of ATS jurisprudence, far from advancing broadly shared norms, actually undermined the possibility of firmly enacting them, in what turned out to be a final gasp of US legal hegemony, before the Era of US Indebtedness, ‘Choosing Decline’, and Multipolarity set in.
What happens, for example, when ATS suits start to be brought against Chinese corporations, for actions having no connection to the US save for the ATS itself? For very, very serious, uncontestable even abuses of labor, land, environment and other things in, say, Africa. The strictly legal questions would have been long settled under the jurisprudence of the ATS in lawsuits against MNCs based out of the US itself, Europe, Canada, or elsewhere in the industrialized democratic world (and whether those countries liked it or not). What happens then? The US government has taken a remarkably hands off attitude toward such litigation, under presidents of both parties – offering statements of interest on occasion, but not typically seeking, on some principled basis, simply to nip such litigation in the bud, rigorously and in every case in which there is no greater traditional jurisdictional base of the United States apart from the ATS itself, as contrary to the foreign policy interests or prerogatives of the political branches.
Were China to weigh in, down the road, in a world of a debtor US, would the rules being made today remain stable? I have my doubts. I raise China as the most obvious real-politik example of a party that might have both the means and the inclination to make its displeasure known by rattling, even just a bit, the debtor’s chains in the global market of Treasury debt. What the might the US government, for example, say in a statement of interest to a court, in response to a court following well-established ATS precedents of corporate and secondary liability, but this time in a case against a Chinese corporation, in the world as newly defined by Secretary of State Clinton in one of her early statements – declining in particular to get too worked up about human rights as central to the US relationship with China?
The rules currently being evolved by US courts, departing from norms as understood by much of the rest of the world, seem to me rules of corporate liability made for a world in which the “universal” and the “international” can be imagined to be enacted through the ATS – mostly, however, because there is still an American hegemony. One can call that hegemony “universal” and “international,” I suppose – provided, however, that one cloisters oneself as strictly as possible within those particular communities of authoritative legal interpretation in which ‘universal’ and ‘hegemonic’ categories do not brush up against each other and catch each other out. Ironies and antinomies of the ATS - yet again.

The NYT CIA Assassination Story

2009-07-14T10:16:00.000-05:00

I see that I'm quoted by Mark Mazetti and Scott Shane in their New York Times article today, CIA Had Plan to Assassinate Qaeda Leaders (July 13, 2009). I'm trying hard to maintain radio silence and not blog to let my shoulder heal up, but let me say something very brief about this. Also, I only post occasionally here - mostly I post these days at Volokh Conspiracy and Opinio Juris and CTLab.

First, I'm delighted, of course, that the CIA post 9-11 was formulating plans to try and kill Al Qaeda leaders wherever they might be; if they weren't, I would certainly have a big question about what exactly the CIA value-added to national security is. Why would you have a CIA if they weren't trying to figure out covert ops to kill Al Qaeda leaders after 9-11? As for the distinction between inserting small teams or using Predators, recall that the US only began using Predators as a weapons platform in a semi-improvised way after 9-11. The obvious tactic was small team insertion, and only when it became clear that Predators could work, did the US move to that strategy.

Second, as to the international law issues involved in targeting Al Qaeda leaders, I will simply refer you over to a new paper, soon to appear as a book chapter in a volume edited by Benjamin Wittes on reforming counterterrorism policy, on targeted killing. That paper has a particular point, however. It says that of course the US targeted killings of Al Qaeda terrorists is a legal act of self defense under international law. (You can get a free pdf download, here, at SSRN, "Targeted Killing in US Counterterrorism and Law.")

The longer term question to which the paper mostly addresses itself is whether, in the face of withering international legal criticism, from UN special rapporteurs, human rights groups, academics, etc. - what we might call the international "soft law" crowd - the US, and specifically the Obama administration, will insist on the traditional doctrines of self defense, including against terrorists who find safe haven in states that are unwilling or unable to deal with them. The problem specifically for the Obama administration is that on the one hand it has - correctly in my view, for strategic, legal, and humanitarian reasons - embraced targeted killings via Predator strikes.

On the other hand, a lot of the administration's international legal apparatus is highly sympathetic to the "soft law" position, and in other circumstances would like to embrace positions that, however noble in the abstract, would effectively rule out targeted killing as the US pursues them. And particularly rule them out in future situations in which Al Qaeda is not involved, in which there is no AUMF, no Security Council resolutions, etc., to point to. It is important for the administration to keep in mind that the US will eventually face different terrorist enemies - there is, so to speak, life - and death - after Al Qaeda.

The paper is concerned with defending the US legal space for targeted killing undertaken as self defense, but not within the context of an armed conflict as defined under international humanitarian law. If that seems like a mouthful, I'll just refer you to the paper.

Finally, the US domestic law question of assassination. The title of the article uses the word assassination. This is unfortunate, not because it is not accurate in the sense we ordinarily use the term, but because US law and regulation contains a ban on "assassination." Assassination in that specific legal sense is prohibited - but also not defined in US law or regulation. However, successive administrations dating from the 1980s have taken the position - e.g., the speech in 1989 to which the article refers - that a targeted killing is not (prohibited) "assassination" if it meets the requirements for self-defense under international law, including self defense against terrorists. As then-Dept of State legal advisor Abraham Sofaer put it, the assassination ban does not apply to otherwise "lawful killings undertaken in self defense against terrorists." I don't know if this is open access online; it was issued in the Military Law Review in 1989, and Judge Sofaer and others have told me that it was vetted with DOD and the White House as being US policy and interpretations of law. I am not aware of anything that has overturned it as US interpretation of the US assassination ban.

Okay, I'm trying very hard not to blog at the moment and give my should some time to heal, so I am going to post this up and ... Exeunt Left. Or possibly exit right.

My new EJIL article on the Rise of International Criminal Law

2009-07-02T11:29:00.004-05:00

I have a new essay just published yesterday in the European Journal of International Law, titled (if link doesn't work and you still want the piece, email me and I'll send it that way):

The Rise of International Criminal Law: Intended and Unintended Consequences.
(EJIL, Vol. 20, No. 2, pp. 331-358, June 2009.)

EJIL is a subscriber wall Oxford UP journal, but I’m allowed to put up a link to the full text here on my personal website. If you’d like to read it, this link is supposed to work to the full text.

Abstract:

The rise of international criminal law has been one of the remarkable features of international law since 1990. One of the less-explored questions of international criminal law is its social effects, within the international community and the community of public international law, in other parts and activities of international law. In particular, what are the effects of the rise of international criminal law and its emerging system of tribunals on the rest of the laws of armed conflict? What are the effects upon apparently unrelated aspects of humanitarian and human rights law? What are the effects upon other large systems and institutions of public international law, such as the UN and other international organizations? As international criminal law has emerged as a visible face of public international law, has it supplanted or even ‘crowded’ other aspects and institutions of public international law? This brief article offers a high-altitude, high-speed look at the effects of international criminal law on other parts of public international law and organizations.

I want to thank EJIL editor and old friend Joe Weiler for commissioning this essay - and then running it when it turned out to be a somewhat strange piece for EJIL. It draws on my personal experience regarding the early days of the then-proposed ICTY, among other things. It is a fast, impressionistic overview of ways in which the emerging system of tribunals might be thought to “crowd out” other parts of public international law. It ranges really, really widely, as the table of contents shows:

Regimes of mutual benefit and regimes of altruism
Alternative to intervention?
Earning the moral right to administer universal justice
Reprisal and reciprocity in the laws of armed conflict
The rise of the machines
Individual liability and the loss of the laws of war as rules for the social organization of war between groups
Does anyone ‘own’ the rules of war anymore?
An end-run around the P-5?
Neglecting the UN?

Everything from battlefield robots to the P-5 ... no lack of topics here in a short space. Although I think it will drive some readers crazy, and for a good reason - it takes the punchbowl of each topic away just as the party gets going - I do like it, and I think once in a while it is useful to have a high altitude survey that seeks to reveal something about changes to the landscape below. That’s the intent, anyway.

Freedom in Iran

2009-06-18T22:51:00.001-05:00

Here’s hoping liberty prevails in Teheran. (I've changed the color in minor gesture of solidarity.) I understand that from the White House's point of view, it's all ... complicated. Indeed it is. But how hard is it to say, the United States stands for, and stands with, liberty?

UN Collective Security and the US Security Guarantee ... my new CJIL paper at SSRN

2009-06-18T17:54:00.000-05:00

The Chicago Journal of International Law has a new symposium issue coming out on the “multipolar” world and its implications for international law and institutions. I’m pleased to say I have an article in the issue, titled “United Nations Collective Security and the United States Security Guarantee: The Security Council as Talking Shop of the Nations,” 10 Chicago Int’l Law Journal 1 (June 2009) pp. 55-90. I’ve posted it up to SSRN at the link. Here is the abstract, in case anyone is interested:

This essay considers the respective roles of the United Nations and the United States in a world of rising multipolarity and rising new (or old) Great Powers. It asks why UN collective security as a concept persists, despite the well-known failures, both practical and theoretical, and why it remains anchored to the UN Security Council. The persistence is owed, according to the essay, to the fact of a parallel US security guarantee that offers much of the world (in descending degrees starting with NATO and close US allies such as Japan, but even extending to non-allies and even enemies who benefit from a loose US hegemony in the global commons such as freedom of the seas (leaving aside pirates)) important security benefits not otherwise easily obtained.

Much of the world can afford to pay lip service to UN collective security as an ideal, and to nourish it as a Platonic form, precisely because they do not have to depend upon it in fact. Not all the world falls within even the broadest conception of the US security umbrella, however, and these places include such locales as Darfur and other conflict zones in Africa. In those places, according to the paper, the US should engage with UN collective security to offer what the US will not, or cannot, offer directly.

The paper also argues that the Security Council should be understood, in a world of rising multipolarity especially, not as the "management committee of our fledgling collective security system," as Kofi Annan put it, or even as a concert of the Great Powers, but as simply the security talking shop of the Great Powers. Sometimes the Security Council can act as a collective security device, and sometimes as a concert of the Great Powers (e.g., the first Gulf War), but the condition of multipolarity argues that Great Powers are competitive and that the Security Council will find its limits, but also its role, mostly as the place for debate and argument, diplomacy successful or not - but not management of global security.

The essay also argues that those who want to see an end to loose US hegemony in favor of the supposed freedoms and sovereign equality of a multipolar world should think carefully about what they wish for. The dreams of global governance by international institutions turn out to have their greatest possibilities precisely in a world that, to a large extent, relies upon a parallel hegemon rather than collective institutions for its underlying order. In a multipolar, more competitive world, the winner is unlikely to be liberal internationalist global governance or UN Platonism or collective security, but instead the narrow, often directly commercial, interests of rising new powers such as China. The paper closes with policy advice to the United States on what it means and how it should - and should not - engage with the UN on security and the Security Council.

(The paper runs some 15,000 words and is part of a special symposium issue on a multipolar world.)

I should add that the paper also contains a substantial discussion of NATO and its relationship to the US security guarantee - with an emphasis on Raymond Aron, one of my intellectual heroes. The substance of the article figures into two chapters on security in my book on UN-US relations.

Jean-Marie's birthday

2009-06-01T21:53:00.001-05:00

I fixed a turkey breast done in the slow cooker, very tender and juicy, and a bunch of vegetables grilled. The almond creme cake from the expensive baker was a disaster, though, with the crust ladened with enough salt to make us all gag. Anyway, Jean-Marie took this with her macbook built in camera.

Political restructuring of creditor rights - it's not just the interest rates

2009-05-27T15:45:00.000-05:00

The point has been repeatedly and correctly made many times that the Obama administration’s political - ‘extralegal’? - pressures to force secured and senior creditors to take lesser positions than that to which they are otherwise legally entitled for the benefit of politically-favored labor unions has the effect, other things equal and most likely even other things not, of raising the interest rates that secured or senior creditors will charge similar unionized enterprises in the future.

What has been less discussed, at least so far as I‘ve seen, is the effect the administration’s moves will have on how bond covenants might be drafted into the future, in order to address the uncertainties created by these moves. For example, might we see a bond covenant in the future (analogous to existing and ubiquitous poison put provisions in favor of creditors) that would allow senior or secured creditors to put the bonds back to a corporate borrower, forcing repayment of principal plus interest, if unionization occurred at all or part of the corporation’s operations?

I can imagine litigation over the question of whether this would be a violation of unionization rights, but at first blush, it is a provision directed at the corporation, at a risk that the corporation might suffer, and the corporation’s own actions are not relevant to that risk. Why should the parties not be able to bargain in advance over who suffers the loss in the case of government interference in credit ordering? Or in the unionization that might lead to that kind of political risk? I suppose we might have a whole special section of covenants covering these risks, perhaps under the title, “Rule of Law Failure Risks” or “Favored Political Constituency Risks.”

There are lots of possibilities for covenants and other moves seeking to lessen the uncertainties. But they would have the effect of reducing the ultimate interest rate only insofar as they were taken seriously. That is, if the market did not believe that the covenants would be enforceable, because it did not trust the administration or the courts to enforce them, either those in particular or a more generalized belief that the rule of law had been impaired (imagine you are a foreign government thinking of investing in US corporate debt - is it conceivable, watching events, that you would not at a minimum think that legal rules in investor protection law had been at least somewhat impaired by these events?) then interest charged as a risk premium would not be reduced.

Tweenbots

2009-04-19T19:38:00.001-05:00

I, for one, welcome our Tweenbot overlords!

Sample questions from the AP Macro Exam

2009-04-19T17:29:00.000-05:00

Via the great Greg Mankiw blog, this NYT interactive quiz - 19 sample questions from the AP macroecon exam. I got one wrong out of the 19 - but while embarrassing, I did think the question ambiguous as between short and long-run. It’s a fun quiz to take, as long as it’s not some three hour exam for real.

Bradley and Goldsmith in the WP on ATS cases, and my further question

2009-04-19T13:39:00.000-05:00

(Cross posted with minor edits from Opinio Juris).

I am fundamentally in agreement with the Bradley-Goldsmith view as to why the Alien Tort Statute is a bad idea. I would simply repeal it as lacking connection to its original purpose and providing many perverse incentives, not to mention avenues of litigation open to aliens that are not open to US citizens.

However, I want to post up a related question. It is not so much about the ATS itself or its implications for US law or its politics. It is, rather, about the substance of the legal positions produced in ATS cases and the US-centric methods by which they are produced, and whether non-US international lawyers and legal scholars think that they are right as a matter of international law, the substance of international law.

As I point out in a short essay coming out soon in the European Journal of International Law that Joe Weiler was kind enough to solicit (adv.) (but it is certainly not an observation original with me):

Consider, for example, the very particular sub-community of interpretation of international law by US courts in Alien Tort Statute interpretation. Those courts (constantly citing to each other) have gradually built up a self-referential, hybrid jurisprudence of certain aspects of international criminal law – war crimes, crimes against humanity, and genocide, for example – together with other materials drawn from US civil and tort law, such as corporate liability, aiding and abetting, and similar doctrines. The individual terms of the Alien Tort Statute – “in violation of the law of nations or a treaty of the United States,” especially – create idiosyncratic pressures on interpretation. What is the ‘law of nations’ – for purposes of US jurisprudence, under US constitutional standards and current Supreme Court interpretation under the Sosa decision? Whatever exactly the ‘law of nations’ means as an international law term, it means something different in the hands of American courts that, under Sosa, are required to look not strictly to “traditional” international sources, such as those stated in the ICJ statute, nor strictly to such concepts as jus cogens – but instead, per Sosa, to a somewhat altered form of original meaning jurisprudence and what the drafters of the statute meant, or anyway what was meant in their times, along with some “fundamental” matters of the law of nations.

I do not mean to get hung up on differences among contested doctrines of US ‘originalism’ in interpretation - on the contrary, the fact that we might get hung up on such things tells you something about how distinctive this community of “international law” interpretation is. In other words, the jurisprudence of the US courts applying the ATS is not merely internationally agreed substantive international law plus some US civil litigation concepts to make the claim out in US tort terms such as enterprise liability. It is, instead, an interpretation of “international law” filtered through an ancient US statute, with US canons of constitutional interpretation applied to the meaning of the statute, Sosa atop of that (Sosa, while (predictably) not producing predictable outcomes, nonetheless introduces a distinctly US set of interpretive issues) and only by extension to the “international” law underlying it.

The whole process of interpretation, while fairly ordinary in US constitutional adjudication, must look slightly strange to international lawyers. The substantive results, especially as driven by the urgent, overriding, absolute need of plaintiffs to show a law of nations violation merely to get into US court, must start to look strange to those international lawyers as well. What does it mean when the function of the law of nations is to establish a threshold by which to get into court, rather than being the core issue of the litigation - litigation in tort, not a category of international law as such at all? Doesn’t this inevitably affect the way in which the law of nations is interpreted? I suspect – it is hard to get anyone to say much, frankly – that many non-American international law experts are, on the one hand, reassured to see American courts involve themselves with substantive international law, gradually drawing it into American jurisprudence and adjudication. On the other hand, I suspect many of them are also privately unhappy with the actual content of that law, thinking that it is evolving within its closed community in ways that are not consistent with the “authoritative” interpretation of international law in the international community and that are, in a word, weird. But who wants to be the non-American “international lawyer” to tell a US District Court that?

This is from the unedited draft; it will all be polished up in the final. But my basic question stands. I have had conversations with several prominent European legal scholars over the years who have expressed exactly such private reservations about the interpretive filter through which international law flows in ATS cases as well as private reservations about the substantive results. They also have never wanted to make such criticism publicly, because overall they favor American courts getting involved, presumably - the discussions didn’t go that far - because they hoped, as American transnationalists often hope, to use the American courts for (as John Bolton or I might put it) an end-run around the will of the American political branches.

But I would be exceedingly curious to know if there were discussion by non-American legal scholars of the process and substance of American ATS cases - whether favorably or unfavorably disposed. I have searched over the years, but don’t find so much - especially criticism of the kind that I have heard in private discussion. The closest things to criticism I can think of are the expert declarations offered a few years ago by Christopher Greenwood and James Crawford in Talisman in which there were at least some discreet, indirect criticisms offered of US court interpretations of international law. But I might be over-remembering.

So my question is, does anyone know of expert commentary by non-US international lawyers or scholars in this area? Either for or against the way in which US ATS litigation interprets as a matter of method as well as substantive conclusions of international law? I would be grateful if you could point me toward such commentary.

(I should add that I have occasionally done expert declaration work on ATS cases.)

NYT 'Room for Debate' blog on the torture memos and Obama rejecting CIA prosecutions

2009-04-17T13:41:00.000-05:00

Over at the New York Times’s Room for Debate Blog, a discussion of the newly released Bush-era memos on torture and CIA interrogation, and the decision by the Obama administration not to seek prosecutions of CIA officers who relied on those memos and agency legal advice. Participants include David Cole, Michael Ratner, David Rivkin, Kori Schake, and me.

(And Glenn, thanks for the Instalanche for the NYT blog!)

Happy Easter

2009-04-12T14:40:00.000-05:00

And death shall have no dominion.
Dead men naked they shall be one
With the man in the wind and the west moon;
When their bones are picked clean and the clean bones gone,
They shall have stars at elbow and foot;
Though they go mad they shall be sane,
Though they sink through the sea they shall rise again;
Though lovers be lost love shall not;
And death shall have no dominion.

And death shall have no dominion.
Under the windings of the sea
They lying long shall not die windily;
Twisting on racks when sinews give way,
Strapped to a wheel, yet they shall not break;
Faith in their hands shall snap in two,
And the unicorn evils run them through;
Split all ends up they shan't crack;
And death shall have no dominion.

And death shall have no dominion.
No more may gulls cry at their ears
Or waves break loud on the seashores;
Where blew a flower may a flower no more
Lift its head to the blows of the rain;
Though they be mad and dead as nails,
Heads of the characters hammer through daisies;
Break in the sun till the sun breaks down,
And death shall have no dominion.

(Dylan Thomas, Twenty-five Poems, 1936.)

"Critical Studies on Terrorism"

2009-04-04T18:04:00.000-05:00

Oh dear, oh dear, oh dear. Thanks to Mike Innes over at CTLab, (where I’ve been blogging for the past week on robots and PW Singer’s Wired for War), this note on a journal devoted to “critical terrorism studies” and a review of the journal. Let me simply raid Mike:

In the latest issue of Studies in Conflict and Terrorism, David Martin Jones (University of Queensland) and M.L.R. Smith (King's College London), write in "We're All Terrorists Now: Critical - Or Hypocritical - Studies "On" Terrorism", about the new school of "critical terrorism studies" based out of the University of Wales, Aberystwyth:

ABSTRACT: This article reviews the new journal Critical Studies on Terrorism. The fashionable approach that this journal adopts towards the contemporary phenomenon of terrorism maintains that a “critical” and “self-reflexive” approach to the study of terrorism reveals a variety of shortcomings in the discipline. These range from a distorting overidentification with the Western democratic state perspective on terrorism to a failure to empathize with the misunderstood, non-Western, “other.” This review examines whether the claims of the critical approach adds anything, other than pedantry and obscurity, to our understanding of the phenomenon. It concludes that it does not.

I was wondering when this might happen. The authors go on to describe the "congealed prose, obscure jargon, philosophical posturing, and concentrated anti-Western self-loathing that comprise the core of this journal’s first edition." Ouch. The article's behind a pay firewall, but here's the conclusion:

In the looking glass world of critical terror studies the conventional analysis of terrorism is ontologically challenged, lacks self-reflexivity, and is policy oriented. By contrast, critical theory’s ethicist, yet relativist, and deconstructive gaze reveals that we are all terrorists now and must empathize with those sub-state actors who have recourse to violence for whatever motive. Despite their intolerable othering by media and governments, terrorists are really no different from us. In fact, there is terror as the weapon of the weak and the far worse economic and coercive terror of the liberal state. Terrorists therefore deserve empathy and they must be discursively engaged.

At the core of this understanding sits a radical pacifism and an idealism that requires not the status quo but communication and “human emancipation.” Until this radical postnational utopia arrives both force and the discourse of evil must be abandoned and instead therapy and un-coerced conversation must be practiced. In the popular ABC drama Boston Legal Judge Brown perennially referred to the vague, irrelevant, jargon-ridden statements of lawyers as “jibber jabber.” The Aberystwyth-based school of critical internationalist utopianism that increasingly dominates the study of international relations in Britain and Australia has refined a higher order incoherence that may be termed Aber jabber. The pages of the journal of Critical Studies on Terrorism are its natural home.

Fred Siegel on the origins of American liberalism at Telos blog

2009-04-04T17:58:00.000-05:00

Fred Siegel, the historian who wrote the biography of Rudy Giuliani a couple of years ago, has a post up at the blog of Telos, the journal of critical theory, titled "Taking Communism Away from the Communists: Origins of Modern American LIberalism."

Fred is one of the clearest academic writers you can imagine, and this piece is a terrifically informative, well written discussion of the rise of modern American liberalism from an intellectual historian's view. It's a terrific piece, and for readers who are suddenly trying to figure out how we got a social democrat or a socialist or something into the White House and what that means in the long view of American history, this is it.

If you are an intellectual, you really should subscribe to Telos! Very important reading!

Resolving the tension between liberal internationalism and the 'new liberal realism'

2009-04-04T10:15:00.001-05:00

The Obama administration’s new foreign policy at this early point in time is mostly built around the proposition of ‘engagement’. As many folks have pointed out - long preceding the Obama administration - ‘engagement’ is a process, not a substantive policy or set of policy ends. It is an affect, not an outcome.

My now nearly completed book on UN-US relations, Returning to Earth, talks a lot about engagement - it seeks to offer policy heuristics for different types of activities of the US at the UN that would help the US figure out when, how, and with whom to engage - and when not. It seeks to break engagement out according to the kind of activity at the UN - security, development, values, governance, and give a better sense of what engagement can or should mean in each. It’s not particularly deep; it’s trying to offer a set of basic heuristics. But it means I have been thinking for the last several years about the nature of engagement - in large part trying to figure out what friends of mine, many of whom have now gone into the Obama administration foreign policy agencies, meant during the past five years when they kept decrying the supposed failure of the Bush administration to engage.

But the Obama administration’s foreign policy, when it comes to some deeper orientation than merely ‘engage, engage, engage’, seems to be oscillating between two poles - the traditional left-Democratic preference for idealism and global governance through liberal internationalism, on the one hand, and what I have called the ‘new liberal realism’, on the other. These are exemplified by the contrast between the nomination of Yale Dean Harold Koh, one of the leading American liberal internationalists of our time, as the new legal adviser to the State Department, and Hillary Clinton’s blunt, unapologetic, ‘new liberal realist’ de-coupling of China policy and human rights concerns. The administration’s policy of always engage with bad guys can be seen as having elements of each - a liberal internationalist impulse to reach out to everyone in an idealist hope of finding common ground, and a ‘new liberal realist’ claim that (contrary to the insistence on human rights principles of shaming and isolating bad human rights actors that liberals used to hold) the ones you most need to talk to are your enemies.

The engagement strategy thus waffles, depending on who it is trying to convince of its virtue, between the idealism of finding common ground (Iran in Afghanistan, for example) with bad guys who might be improved, and the realism of talking to bad guys because they are bad. The result is that the ‘engage’ switch is always on, and everyone knows it. Incentives here are thus a big problem - is it better to be a bad guy with whom the Obama administration is desperate to engage, or a close ally who therefore is just another of 190 or so countries?

The most important incentive created by the always- engage policy, however, probably turns out to be with respect to the United States, not its interlocutors. A policy of always-engage has a tendency to overpromise and overreach, because it turns out - surprise! - that we don’t actually have common ground or common interests, and administrations of the past were not wrong to have identified these guys as bad guys and enemies. So the United States, in order to preserve the always-engage strategy, merely becomes what everyone else is in these kind of failed cooperation games - an insincere promiser. Maybe that makes the US extra-super-cleverly realist, those wily new-liberal-realists outsmarting everyone - or maybe it just makes the US look weak.

Liberal internationalism, to draw on Francis Fukuyama’s useful characterization of various traditional US foreign policy approaches (liberal internationalism, realism, Jacksonian nationalism, and neoconservatism) seeks to transcend the power politics of the international state of nature and govern it through international institutions and law.

The ‘new liberal realism’ seeks to unshackle American liberals from the strictures of human rights idealism and allow them a liberal form of realism by which, above all, to claim to be able to defend US security: the new liberal realism began in the liberal backlash against neoconservative democratization idealism in the Iraq war, seeking a language that would permit containment, accommodation, and, now, dialogue and discussion with dictators, abusers, and enemies. Its initial impulse was negative -a reaction against neoconservatism, which then spread to a reaction against idealism and even against being limited too strictly by human rights concerns in foreign policy, and finally to today’s form of engagement with any bad actor. The new liberal realism sometimes talks of being Jacksonian liberalism, but its roots are far shallower than that - Scoop Jackson was never an appeaser, and anyway the new liberal realism was mostly an electoral drive in the Bush years to convince skeptical voters that they could be as tough on national security as the Republicans, although, weirdly enough, not by bringing the bad guys the blessings of international law and institutions, but instead by appeasing them. It’s a telling way of looking at the world - you look tough by skipping the liberal international emphasis on law and instead emphasize your toughness by going to the bad guys and ... proposing to give them things. It would be a good thing if there were a strand of liberal realism that really did arise out of the Scoop Jackson tradition - but this is not it. Whether in Obama or Hillary Clinton’s hands, it is an opportunism derived out of the belief that the Iraq war was lost - whoops, won - well, whatever, and a desire to convince voters that Democrats are not all liberal internationalists.

But now this tension between liberal internationalism and the new liberal realism. The natural question is to ask, well, who wins the policy struggle? One answer is to kick that can down the road by a procedural response - engage, engage, engage. There’s a certain common ground between the idealism and the realism. And in any case, it doesn’t mandate
a substantive answer. But at the end of the day, I suspect that there will be a certain division of labor between liberal internationalism and the new liberal realism. It is this - and I stress it is not a fixed or absolute divide, just a tendency and matter of degree:

The new liberal realism will mostly prevail in the international, global, and transborder world. It will govern security relations - after all, it began life as a language by which to talk tough on national security to American voters. But it will also increasingly govern American-global economic relations - above all, the relationship with that country that currently owns US government and GSE debt and that same country that the Obama administration desperately hopes will buy trillions and trillions and trillions more, even if backed by dollars the Fed just printed. Human rights in China is going to take even a more backseat than it has in the past. The new liberal realism will be strongest in governing things that are ‘out there’ in the world - not completely, but in many important matters, like China.

What about liberal internationalism? Well, crucially, it too will (perhaps, this whole discussion is nakedly speculative) have its chief sphere of influence - and that will be inside the United States, institutions and law within the United States. Liberal internationalism might find that its greatest influence is as a means of altering, not places like Iran or even Burma, but the legal system of the United States itself. It fits with a general liberal world view by some American liberals that the United States is a wicked place, a parochially wicked place, which stands in need of cleansing by the institutions of human rights and universal values. Among the impediments to that moral cleansing are institutions of domestic law, the doctrine of popular constitutional sovereignty, America’s appalling lack of deference toward international institutions and values and justice.

The Obama administration seems to me unlikely to permit US security policy abroad to be made or unmade by the Security Council, the UN, the ICC, or any other institution; indications are the administration is leaving those American decisions firmly in firmly realist American hands. But it will, in my estimation, assiduously compensate by bringing the international law agenda home domestically, and pursue the remaking of internal American institutions according to the demands of the ‘international community’. John Bolton is right in saying, as he has long said, that international law as it actually touches the United States internally is in considerable part, or at least the controversial parts, about various advocates, governmental, international organization, and NGO, dissatisfied with the outcomes of American democracy and looking for an end-run around them. International law provides a vehicle for doing just that.

And that, in the end, is likely where the project of liberal internationalism finds its greatest purchase in the Obama administration. Not in security policy abroad. But in bringing foreign law to US constitutional adjudication, importing a wider set of treaty obligations into US domestic law, allowing many more claims under malleable concepts of customary international law ... none of which will have any impact on Burma or US Predator campaigns in Pakistan or, curiously, even so very much on Guantanamo, where the administration’s hypocrisy is now pretty much complete. But it is intended, and in my view is likely to have, very important - and hard to roll back, once embedded in judicial and regulatory process over two presidential terms - consequences for the people of the United States and their relationship to the state.

A great impact of the State Department in an Obama administration, as foreign ministry of the United States, in other words, might well be not with respect to the people of Darfur, or Congo, or Venezuela, or Burma, or China, or Georgia, or Russia - but Americans. Am I alone in finding that a peculiar role for the foreign ministry of the United States? The foreign policy machinery of the United States is an ambassador of sorts - but rather than one who brings the American view to the world, might turn out to be as much or more committed to bringing the global view to the Americans - imposed with the force of a re-shaped domestic law via claims of international law. All this is speculative, of course. But it does not impossible that the State Department, in its actual performance, turns out to be not so good at getting Russia to do things, but quite good at getting US courts and bureaucrats to go along with telling Americans to do things in the name of America’s international obligations.

Liberal internationalists who are serious about their world view make no apology for it, don’t, and why should they? It is an honorable view, even if I find it profoundly wrong. Yet surely I am not alone in finding something weird about the result that liberal internationalism, at least given its tension with the new liberal realism, turns out mostly to be about ‘improving’ we, the people of the United States. At the end of the day, then, international law is likely to be, under the Obama administration, about re-making Americans and their (guilty, wicked, retrograde, ignoble, parochial, un-universal, unworthy) institutions, and about conveying to those same Americans that they were quite mistaken to believe that they, the people, were ever truly sovereign over them. Maybe of course I turn out to be wrong about all this - these are just speculations about a very young administration. But it is not exactly inconsistent with the rest of Obama administration’s agenda to re-define outwards the extent and power of the state.

(Let me be clear on one thing, though tangential to this post. I support Dean Koh’s nomination, because he is an honorable man of every conceivable qualification for his post, and his is an honorable philosophy of governance, even if not one I embrace, and even if I would oppose very large parts of it as proposals for policy or law. The president is entitled to his nominees, and Dean Koh ranks among the very best. The WP’s Who Runs Gov blog says, “many defenders of Koh have wondered who is going to ... defend Koh.” Ted Olson has, and while I’m not anyone’s idea of a big name, I’m happy to do so as a center right conservative. It doesn’t mean embracing his liberal internationalism - I don’t. But in considering his nomination, that’s not the point.)

(I’ll go back and add some links and clean this up later. Work-in-progress, and I might decide to take it down in order to rework it as a longer piece on Obama administration foreign policy. I have to get back to my outline for a book on systemic risk and the financial crisis.)

(Update: Eric Posner has an excellent discussion of these issues in relation to the debate over the Koh nomination, at Volokh Conspiracy, April 6, 2009, Monday. He says something like the same as I say here: Koh is “not a cosmopolitan who seeks to sacrifice American sovereignty to foreign gods. He is a liberal who wants to move American law to the left. International law served as a handy vehicle, to be used or ignored to the extent necessary to reach this goal.”

CTLab symposium on PW Singer Wired for War

2009-03-28T14:34:00.000-05:00

Complex Terrain Laboratory is hosting an online discussion next week on PW Singer’s new book on robotics and war, Wired for War (starting Monday, March 30). Singer is participating and, having read his opening post, it looks to be fascinating. It is a terrific lineup of participants, including yours truly. Check it out!

Why targeted killing? And why is robotics so crucial an issue in targeted killing?

2009-03-27T12:36:00.001-05:00

(Given the recent Obama administration review of the Predator campaign in Pakistan, I thought it would be a useful thing to put this discussion on the table. Welcome Instapunditeers, and thanks Glenn for the Instalanche! You might also want to check out the ComplexTerrainLab's discussion among academics of PW Singer's Wired for War, here.)

Why targeted killing? And why the insistence that it will increase in utility as it is partnered with high-technology, stand-off platforms such as Predator drone aircraft? Why the emphasis on targeted killings and robotics? There is a fundamental strategic rationale lying behind the policy trend.

The United States has found the limits of how extensively it can wage full-scale wars with its military; even if wanted to take on more wars, it has logistical and political limits. In addition, the United States has discovered that full-on war is useful principally against regimes. Full scale, large scale war of the kind waged in Afghanistan and Iraq is useful primarily for bringing down a regime that, for example, might harbor or support terrorists, or which might be believed to be willing to supply terrorists with materials for weapons of mass destruction (WMD). Full-scale war has a crucial strategic place in national counterterrorism policy, but by its nature that role is about states and regimes fundamentally.

Large-scale military operations are less useful directly against transnational terrorists, however, who are few in number, dispersed across populations and often borders, disinclined to fight direct battles, and more efficiently targeted through narrower means. The fundamental role of war in counterterrorism is to eliminate the regimes that provide safe haven to terrorist groups; terrorist groups can be strategically understood as an extreme version of a guerrilla organization engaged in a strategy of logistical raiding – in which civilian morale and resulting manipulation of political will is the logistical target. Logistical raiders typically need a safe base to which to retreat, and full-scale war is most useful in eliminating such safe bases and convincing other regimes not to provide them. But it is not usually an efficient way of going directly after transnational terrorist groups themselves.

Law enforcement utilized outside the United States, on the other hand, has also discovered its outer limits. Many debates are still to be had over the rights of alleged terrorists once in U.S. custody. Even so, whatever they are, few would argue that going out to ‘arrest’ terrorists in, for example, Pakistan’s tribal zones is a winning policy or a serious option. The same is true in Somalia and other places, and it will be true in other places in the world in the future.

Moreover, the political costs for any U.S. administration taking and holding detainees are now enormous. Once you hold them, over time they will likely be accorded quasi-Constitutional protections by the courts, at least some version of habeas corpus. Politically, the most powerful institutional incentive today is to kill rather than capture them. The intelligence losses of killing rather than capturing in order to interrogate them are great. But since the U.S. political and legal situation has made interrogation a questionable activity anyway, there is little reason to seek to capture rather than kill. And if one intends to kill, the incentive is to do so from a standoff position, because it removes messy questions of surrender.

All this speaks to the advantages to the U.S. government of targeted killing of terrorists or persons seriously believed to be terrorists, and it also speaks to the advantages to the US government from using stand-off robotics technology to perform these attacks. But the humanitarian advantages of ‘targeted’ killing are enormously important as well, and ought to be on the table. This is particularly so given that targeted killing has come in for a barrage of criticism, legal and ethical, much of which seems motivated by the fact that it can be more discriminate than full scale military assault; the fear seems to be that it makes violence too easy to undertake. The same criticism is offered of the evolution of robotic technology that increasingly allows targeted uses of force without having to risk one’s own personnel. Not using one’s own personnel allows a party to attack without the fear of counterassault that might increase the need to use greater amounts of force and cause greater collateral damage – but it also, so it is sometimes argued, thereby reduces the inhibitions on the decision to use force.

Why this should be a downside for US strategic counterterrorism policy is not entirely evident, but clearly some critics are disturbed by it. Much of the criticism amounts to a very contemporary restatement, aimed against the targeted killing that evolving robotic and surveillance technology might permit, of a very old argument against the idea itself of the introduction of humanitarian standards in conflict (one that stretches back at least to the founding of the International Committee of the Red Cross (ICRC)), that humanitarian standards by their promulgation would reduce the disincentives to war.

Whatever the critics say, however, is unlikely to sway US strategic policy, under the Obama administration or anyone else subsequently. The humanitarian benefits of precision targeting are far more obvious than the more remote and abstract suppositions of their humanitarian costs. Their direct policy consequence is to introduce greater discrimination in targeting than full-scale military assault and large-scale war permit, through targeted killing using high technology. There is a clear humanitarian advantage favoring the use of targeted killing over full-scale war. Advancing technology allows for more discrete surveillance and therefore more precise targeting that is finally better able to minimize collateral civilian damage.

The result is a strategic incentive for targeted killing, for Predator strikes, and for increasing the quality of technology to make targeted killings both more precision targeted and more standoff. Precision targeting and standoff delivery are each independently desirable and, in combination, considerably increase the incentive. The Obama policy team did not quite run on a policy of targeted killing – but it did run on a policy of taking the fight to Al-Qaeda in Pakistan in a targeted way.
The Obama administration is right about this – right about the logic that presses toward targeting standoff killing as a necessary and available and technologically advancing part of counterterrorism. It is also right about it as a moral and humanitarian proposition in the law and policy of the use of force. It is a conclusion that is correct as well as for foreseeable future administrations, even if administrations naturally prefer to couch it in softer terms.

None of this alters the equally impeccable strategic logic underlying the use of law enforcement mechanisms in some circumstances. Nor does it alter the logic behind other forms of intelligence activities such as surveillance or financial interdiction, or even the use of open, full-on war. The strategic logic for toppling a regime in pursuit of counterterrorism during the next ten or twelve years can by no means be ruled out. But these are not disjunctive policies. They all can and should work together. But targeted killing is likely to increase as a policy preference as full-scale wars decreases in number and intensity.

The paradox, however, is that although the strategic logic for targeted killing increases in persuasiveness, the legal space for it and the legal rationales on which it has been traditionally justified are shrinking. It has been shrinking in ways that might surprise members of Congress and the Obama administration. And it is at risk of shrinking still further through seemingly innocuous, unrelated legal policy actions that the Obama administration or Congress might be inclined to take in support of various political constituencies, usually related to broadly admirable goals of human rights and international law.

U.S. law, in domestic law since the original Cold War legislation establishing the CIA in 1947 at least, and in the US view of international law, accepts a legal, political, and policy space for the use of violence by political decision not in the course of large scale, open armed conflict governed by international humanitarian law, and not in the course of judicially supervised law enforcement operations, either. ‘Violence by political decision’, in peacetime outside of open armed conflict under international humanitarian law, was a space of activity accepted and considered vital to national security throughout the long decades of the Cold War. Only in certain narrow times and places was the decades-long conflict with the Soviet Union and its allies a ‘hot’ war, open and large-scale armed conflict, clashes of armies. Political violence in the Cold War was often covert, often denied, but it was authorized and endorsed by US domestic law, although it was frequently a violation of the law of states where such activity took place and unsurprisingly was sometimes, too, a source of grave diplomatic and other friction.

This category of force is an obvious means by which to confront non-state transnational terrorists outside the territorial United States. It is especially true outside the territory of states where effective mechanisms exist for arrest, detention, investigation, trial, and punishment, or alternatively extradition, of suspected terrorists. Regimes that have allied themselves to terrorist organizations – the Taliban in Afghanistan – might be toppled. Failed states might require large-scale military action in order to block the use of territory as a safe haven by terrorist groups. But as a strategic matter, actual attack on a physically small number of terrorists embedded among civilians is often best served by attacks made as physically precise and discrete as surveillance and targeting technology allow.

Compensation models on Wall Street

2009-03-26T23:42:00.000-05:00

Interesting discussion tonight in my financial crisis class on compensation systems on Wall Street, and the misalignment of incentives short term and long term.

The fundamental misalignment of interests in compensation in the financial firms is that a two fold misalignment:

First, the players think of themselves as free agents, and their annual bonuses as performance-based awards for how well they did that year. But although they think of their bonuses as performance based, the fact that it is based around performance in a single year means that it does not reflect the true economic performance of their work. We won’t actually know that for some time to come, as the bets made that year pay off or not down the road.

Second, therefore, the compensation paid to the players is not really performance based, as though to free agent independent contractors being paid for their performance. It is compensation for labor, even if highly skilled labor, but not different in principle from that of other employees. How do we conclude this? Because although the actual performance of the trades, bets, and other actions will not be known for years to come, the players have been compensated now, this year - and there is no clawback arrangement in case it turns out that it all goes bad. That’s how an employee paid for his or her labor is treated - yes, there is a performance component, but if performance of an employee is poor, he or she is terminated now, no one demands that he or she return the past five years of salary. That is one misalignment - players think of themselves as compensated as free agents but in fact the timing indicates they are compensated as employees.

The second misalignment is that players are compensated in timing as employees - they are paid now and there is no clawback for bad bets. But while the timing of compensation is as for employees, the amount is as though they were equity participants, taking risks themselves and not merely as agents for the firm. The players get the best of both worlds - timing as mere employees selling their labor but amount as though they had their own money at risk, when in fact they don’t. (The fact that poor performance means getting fired or no bonus this year isn’t different in principle from other employees - to make it different, you’d have to claw back past pay because it didn’t pay off.) But the best of both worlds is bad on a welfare basis and bad for the firms, if the firms ever have to worry about the bets paying off beyond the relevant compensation year.

True love and congratulations to Althouse

2009-03-23T10:31:00.000-05:00

Althouse finds true love. Actually, I want to say congratulations to Althouse’s beloved, for having pursued and wooed and won Professor Althouse via quite possibly the most unlikely vehicle for true love on the planet ... the comment thread. Wow!

Ne serait-ce point un lasse de son metier?

2009-03-11T17:29:00.000-05:00

The world longs for an agreeable America. America longs to be agreeable. Why not, after all? After the hardness and harshness of the Bush years, you are either with us or against us, our war against terrorism is the measure of all things, the closed fist of military power and the open, greedy, grasping palm of the global reserve currency, ready to take, the rest of the world wants an America that goes on a Listening Tour. And America today is eager to listen, is she not? Smart diplomacy, reboot, reset, and above all re-engage, with friends, allies, enemies, anyone who wants to talk. We are the new multilateralists and the UN is a good place to show it.

This essay has addressed throughout the strategic ambiguity of multilateralism, its ability to be, on the one hand, the device of coordination, even highly robust coordination, among sovereigns. But also how different the meaning of multilateralism, on the other, if it is imagined as a forward-looking, expectation-based vanguard-party for genuine global governance through liberal institutions of law that presumably will transcend mere international power politics. But multilateralism can also exhibit another form of strategic ambiguity – this one particularly focused upon the hegemon, the superpower, the hyperpower, the dominant power that has … grown tired of its calling, lasse de son métier.

What happens when the hegemon decides that it wants to turn inward? What becomes a hyperpower most, when it decides that the parlous state of its domestic economy – despite being intimately intertwined with nearly all of the global economy – requires that it put the issues of the previous eight years, foreign policy and war, terrorism and counterterrorism, issues of the global order, on hold, and focus itself upon its domestic policy and politics? How best to put that decision to the rest of the world?

America has enemies who would rejoice if the US were to forsake its role as provider of hegemonic order. It also has friends and allies who would be glad to embrace a ‘multilateral’ America – not realizing that America has something else in mind, or perhaps realizing it, but still on multilateral-autopilot. But where is Aron? Where is Raymond Aron? Or for that matter, De Gaulle? What would they say? You can trust an America that is mostly about its interests, a little about its ideals, even if you have to denounce it sometimes as a unilateralist in order to keep it and you in the game; you can trust an America that undiplomatically, rudely even, declares its interests and its ideals, puts them first, and invites others to go along with it; multilateralism is great if it means you can have some influence on the plans of America, but only if you can still trust that America plans to carry out its plans because they’re still its rather than yours. An America that suddenly wants to work the hardest, most intractable, hard-realism problems through the UN? What is this? An America that believes that the multilateral processes of the Security Council are the right way to pursue foreign policy because those processes treat the US as just another of the big boys in the world? The biggest, sure, indispensable, even, if you want to play the flatterer, but that’s neither here nor there – hey, we’re just another player in the game, everybody, even if we’re big or even the biggest, hey, we’re just another player. What would Aron say to that?

It is, after all, what the UN theorists always saw as the proper role for America – all that marvelous power, hard and soft, at the disposal of global institutions, the power of a mighty sovereign infused into and transformed by the legitimacy of an international institution, a global constitutional order with teeth at long last. It is a beautiful dream, power and legitimacy that equal authority. But, just as with Nato, it does not work that way. No. Friends, allies, even countries that do not much like the US but rely on it for a certain amount of order, both economic and security: be wary, O world, of an America that promises a smiling multilateralism.

Perhaps it is sincere. But perhaps it is not. Is the uncertainty killing you yet? But we’re all multilateralists now, we mean our global promises, just like you – don’t you? Perhaps America has grown tired of its global responsibilities and just wants a good night kiss from its friends and allies and then a good rest, though what this might mean in a competitive, multipolar, rising-new-power, increasingly mercantilist-with-nukes world, who can know, but maybe we’re willing to give it a try. Perhaps it has decided to really join the legitimate global system of the UN and embrace governance through multilateral institutions after all, and perhaps it has decided, too, that it is less effort to do what others do, multilateralism as others do it, to engage in insincere promises and toss hard things to the UN, to the Security Council, to institutions that will allow America to focus on its fiscal problems and unemployment and education and health care and social security: the President is available for speeches in the larger foreign capitals, particularly those holding large amounts of US Treasury debt, and anyway, he already did Berlin, watch it on Youtube, but as for Iranian nukes and North Korean missiles, Russian expansionism and natural gas blackmail, Chinese protection for Sudan in the Security Council and the always-present question of war in the Taiwan straits, the collapse of Eastern European economies, Mexico-the-narco-failed-state and the rise of Britain-exporter-of-global-jihad, and the ever-imminent war between India and Pakistan that constantly risks, against all our multilateral hopes and dreams, reversion to its six-decade mean, well, remember, we’re multilateralists now, and the US is a good global player, a team player in the big leagues of multilateralism, and if the US acted like a bully, wouldn’t everyone just hate us, and haven’t we had enough of the hate?

America just wants to be loved and henceforth we will measure the success of our foreign policy according to the Gallup global polls that so fascinate our media, foreign policy experts, and Department of State. It’s empirical! And also – if it’s not too much to ask – America wants not to have too much to do with anyone else, except on a strictly commercial and, okay, okay, sometimes charitable, do-gooding basis. Got that part? We’ve got our own problems and our own issues, if you haven’t noticed. We’ve realized multilateralism is good for that, though not necessarily the way you thought: we plan, by the way, to be multilateralists just like you. We’ll even pay over our .7% GDP for development, and to the corruptniks, rent-seeking kleptocrats at the UN, no less, because frankly it’s easier to send the check to one address than try and keep all those Africans alive on retrovirals that need constant attention, constant organization, constant management, constant unilateral care – but then will you just fuck off and leave us alone to figure out our new social-democratic tax system? You asked all those years why the United States couldn’t be more like Sweden. Or maybe it was Holland or Finland or Denmark or Luxembourg or Andorra. Well, we can, we can, we can be a well-run little social democratic welfare state of modest multilateral mien, and a real joiner at the UN, too, inchallah, a member of the Human Rights Council, proud multilateral sponsor of Durban III, IV, and V, and maybe even see an American as President of the General Assembly someday, a good multilateral day, if we pay enough attention to us and stop paying so much attention to you.

(This is a bit of a manuscript on UN-UN relations I’ve been working on that won’t survive the editing cut, because even I will find it too cute, so I thought I’d stick it up here so that it won’t get lost forever. The book, in which I assure you these passages will not appear, is titled Returning to Earth: Abiding Principles of Relations Between the United States and the United Nations, for the Obama Administration and Beyond, from Rowman and Littlefield, forthcoming 2009 inchallah.)

Madrid, 11 March, five years on

2009-03-11T08:52:00.000-05:00

Jose Guardia, of Barcepundit, posts in memoriam for the victims of the Madrid Atocha train station bombing, five years on. My family and I were living in Spain when it occurred; my views on it were aired in a Weekly Standard article. Here to the memory of those who died and my continuing sympathy to their families.

Eva Belén Abad Quijada, española, 30 años
Óscar Abril Alegre, español, 19 años
Liliana Guillermina Acero Ushiña, ecuatoriana, 26 años
Florencio Aguado Rojano, español, 60 años
Juan Alberto Alonso Rodríguez, español, 38 años
María Joséfa Alvarez González, española, 48 años
Juan Carlos Del Amo Aguado, español, 28 años
Andriyan Asenov Andrianov, búlgaro, 22 años
María Nuria Aparicio Somolinos, española, 40 años
Alberto Arenas Barroso, español, 24 años
Neil Hebe Astocondor Masgo, peruano, 34 años
Ana Isabel Avila Jiménez, española, 43 años
Miguel Ángel Badajoz Cano, español, 34 años
Susana Ballesteros Ibarra, española, 42 años
Francisco Javier Barahona Imedio, español, 34 años
Gonzalo Barajas Díaz, español, 32 años
Gloria Inés Bedoya, colombiana, 40 años
Sanaa Ben Salah Imadaquan, española hija de marroquíes, 13 años
Esteban Martín De Benito Caboblanco, español, 39 años
Rodolfo Benito Samaniego, español, 27 años
Anka Valeria Bodea, rumana, 26 años
Livia Bogdan, rumana, 27 años
Florencio Brasero Murga, español, 50 años
Trinidad Bravo Segovia, española, 40 años
Alina Maria Bryk, polaca, 39 años
Stefan Budai, rumano, 37 años
Tibor Budi, rumano, 37 años
María Pilar Cabrejas Burillo, española, 37 años
Rodrigo Cabrero Pérez, español, 20 años
Milagros Calvo García, española, 39 años
Sonia Cano Campos, española, 24 años
Alicia Cano Martínez, española, 63 años
José María Carrilero Baeza, español, 39 años
Álvaro Carrion Franco, español, 17 años
Francisco Javier Casas Torresano, español, 28 años
Cipriano Castillo Muñoz, español, 55 años
María Inmaculada Castillo Sevillano, española, 39 años
Sara Centenera Montalvo, española, 19 años
Oswaldo Manuel Cisneros Villacís, ecuatoriano, 34 años
Eugenia María Ciudad-Real Díaz, española, 26 años
Jacqueline Contreras Ortiz, peruana, 22 años
María Soledad Contreras Sánchez, española, 51 años
María Paz Criado Pleiter, española, 52 años
Nicoleta Diac, rumana, 27 años
Beatriz Díaz Hernandez, española, 30 años
Georgeta Gabriela Dima, rumana, 35 años
Tinka Dimitrova Paunova, búlgara, 31 años
Kalina Dimitrova Vasileva, búlgara, 31 años
Sam Djoco, senegalés, 42 años
María Dolores Durán Santiago, española, 34 años
Osama El Amrati, marroquí, 23 años
Sara Encinas Soriano, española, 26 años
Carlos Marino Fernández Dávila, peruano, 39 años
María Fernández del Amo, española, 25 años
Rex Ferrer Reynado, filipino, 20 años
Héctor Manuel Figueroa Bravo, chileno, 33 años
Julia Frutos Rosique, española, 44 años
María Dolores Fuentes Fernández, española, 29 años
José Gallardo Olmo, español, 33 años
José Raúl Gallego Triguero, español, 39 años
María Pilar Gamiz Torres, española, 40 años
Abel García Alfageme, español, 27 años
Juan Luis García Arnaiz, español, 17 años
Beatriz García Fernández, española, 27 años
María de las Nieves García García-Moñino, española, 46 años
Enrique García González, dominicano, 28 años
Cristina Aurelia García Martínez, española, 34 años
Carlos Alberto García Presa, español, 24 años
José García Sánchez, español, 45 años
José María García Sánchez, español, 47 años
Javier Garrote Plaza, español, 26 años
Petrica Geneva, rumana, 34 años
Ana Isabel Gil Pérez, española, 29 años
Óscar Gómez Gudiña, español, 24 años
Felix González Gago, español, 52 años
Ángelica González García, española, 19 años
Teresa González Grande, española, 38 años
Elías González Roque, español, 30 años
Juan Miguel Gracia García, español, 53 años
Javier Guerrero Cabrera, español, 25 años
Berta María Gutiérrez García, española, 39 años
Sergio de las Heras Correa, español, 29 años
Pedro Hermida Martín, español, 51 años
Alejandra Iglesias López, española, 28 años
Mohamed Itaiben, marroquí, 27 años
Pablo Izquierdo Asanza, español, 42 años
María Teresa Jaro Narrillos, española, 32 años
Oleksandr Kladkovoy, ucraniano, 56 años
Laura Isabel Laforga Bajón, española, 28 años
María Victoria León Moyano, española, 30 años
María Carmen Lominchar Alonso, española, 34 años
Myriam López Díaz, española, 31 años
María Carmen López Pardo, española, 50 años
María Cristina López Ramos, española, 38 años
José María López-Menchero Moraga, español, 44 años
Miguel de Luna Ocaña, español, 36 años
María Jesús Macías Rodríguez, española, 30 años
Francisco Javier Mancebo Záforas, español, 38 años
Ángel Manzano Pérez, ecuatoriano, 42 años
Vicente Marín Chiva, español, 37 años
Antonio Marín Mora, español, 43 años
Begoña Martín Baeza, española, 25 años
Ana Martín Fernández, española, 43 años
Luis Andrés Martín Pacheco, español, 54 años
María Pilar Martín Rejas, española, 50 años
Alois Martinas, rumano, 27 años
Carmen Mónica Martínez Rodríguez, española, 31 años
Míriam Melguizo Martínez, española, 28 años
Javier Mengíbar Jiménez, español, 43 años
Álvaro de Miguel Jiménez, español, 26 años
Michael Mitchell Rodríguez, cubano, 28 años
Stefan Modol, rumano, 45 años
Segundo Víctor Mopocita Mopocita, ecuatoriano, 37 años
Encarnación Mora Donoso, española, 64 años
María Teresa Mora Valero, española, 37 años
Julita Moral García, española, 53 años
Francisco Moreno Aragonés, español, 56 años
José Ramón Moreno Isarch, español, 37 años
Eugenio Moreno Santiago, español, 56 años
Juan Pablo Moris Crespo, español, 32 años
Juan Muñoz Lara, español, 33 años
Francisco José Narváez de la Rosa, español, 28 años
Mariana Negru, rumana, 40 años
Ismael Nogales Guerrero, español, 31 años
Inés Novellón Martínez, española, 30 años
Miguel Ángel Orgaz Orgaz, español, 34 años
Ángel Pardillos Checa, español, 62 años
Sonia Parrondo Antón, española, 28 años
Juan Francisco Pastor Férez, español, 51 años
Daniel Paz Manjón, español, 20 años
Josefa Pedraza Pino, española, 41 años
Miryam Pedraza Rivero, española, 25 años
Roberto Pellicari Lopezosa, español, 31 años
María del Pilar Pérez Mateo, española, 28 años
Felipe Pinel Alonso, español, 51 años
Martha Scarlett Plasencia Hernandez, dominicana, 27 años
Elena Ples, rumana, 33 años
María Luisa Polo Remartinez, española, 50 años
Ionut Popa, rumano, 23 años
Emilian Popescu, rumano, 44 años
Miguel Ángel Prieto Humanes, español, 37 años
Francisco Antonio Quesada Bueno, español, 44 años
John Jairo Ramírez Bedoya, colombiano, 37 años
Laura Ramos Lozano, hondureña, 37 años
Miguel Reyes Mateos, español, 37 años
Marta del Río Menéndez, española, 40 años
Nuria del Río Menéndez, española, 38 años
Jorge Rodríguez Casanova, español, 22 años
Luis Rodríguez Castell, español, 40 años
María de la Soledad Rodríguez de la Torre, española, 42 años
Ángel Luis Rodríguez Rodríguez, español, 34 años
Francisco Javier Rodríguez Sánchez, español, 52 años
Ambrosio Rogado Escribano, español, 56 años
Cristina Romero Sánchez, española, 34 años
Patricia Rzaca, polaca, 7 meses
Wieslaw Rzaca, polaco, 34 años
Antonio Sabalete Sánchez, español, 36 años
Sergio Sánchez López, español, 17 años
María Isabel Sánchez Mamajón, española, 37 años
Juan Antonio Sánchez Quispe, peruano, 45 años
Balbina Sánchez-Dehesa Francés, española, 47 años
David Santamaría García, español, 23 años
Sergio dos Santos Silva, brasileño, 28 años
Juan Carlos Sanz Morales, español, 33 años
Eduardo Sanz Pérez, español, 31 años
Guillermo Senent Pallarola, español, 23 años
Miguel Antonio Serrano Lastra, español, 28 años
Rafael Serrano López, español, 66 años
Paula Mihaela Sfeatcu, rumana, 27 años
Federico Miguel Sierra Serón, español, 37 años
Domnino Simón González, español, 45 años
María Susana Soler Iniesta, española, 46 años
Carlos Soto Arranz, español, 34 años
Mariya Ivanova Staykova, búlgara, 38 años
Marion Cintia Subervielle, francesa, 30 años
Alexandru Horatiu Suciu, rumano, 18 años
Danuta Teresa Szpila, polaca, 28 años
José Luis Tenesaca Betancourt, ecuatoriano, 17 años
Iris Toribio Pascual, española, 20 años
Neil Torres Mendoza, ecuatoriano, 38 años
Carlos Tortosa García, español, 31 años
María Teresa Tudanca Hernández, española, 49 años
Jesús Utrilla Escribano, español, 44 años
José Miguel Valderrama López, español, 25 años
Saúl Valdez Ruiz, hondureño, 44 años
Mercedes Vega Mingo, española, 45 años
David Vilela Fernández, español, 23 años
Juan Ramón Zamora Gutiérrez, español, 29 años
Yaroslav Zojniuk, ucraniano, 48 años
Csaba Olimpiu Zsigovski, rumana, 26 años

US Truth Commission? Debate at NYT Room for Debate Blog

2009-03-04T09:09:00.000-05:00

The NYT Room for Debate blog is kind enough occasionally to invite me to contribute on law topics. We recently had a mini-debate on the question of whether Congress should empanel some kind of “truth commission” to deal with issues of torture and other things from the Bush administration. I was the voice in opposition. Other contributors were David Cole, Michael Ratner, Margaret Satterthwaite, and Jenny Martinez. A good time had by all, etc. - it’s a good short summary of the arguments.

It generated a lot of comments - several thousand rather than the usual several hundred - from Times readers around the country. If there was anything that surprised me in the comments, it was the number that simply said, the economy is too urgent, it’s time to move on and deal with what’s in front of us. I was also struck by how relatively few people commenting seemed to understand that any discussion of the Bush administration’s policies would inevitably require discussion of senior congressional Democrats who were all briefed on detention, interrogation, and rendition policies. Commentators seemed largely unaware of the Congressional oversight role.

The Room for Debate blog is a good forum for discussion, by the way - thoughtful, very well-edited, many fun topics across a wide range of issues.

Happy 200th birthday to Abraham Lincoln - and a reflection on Lincoln and the ethics of war

2009-02-12T11:27:00.001-05:00

(Cross-posted from Opinio Juris.)

Two hundred years of Lincoln, February 12, 1809. ... what, if anything, does that Lincoln fellow, the rural rube from the wild edges of the American frontier, have to do with international law? Here are a couple of suggestions.

First, although it was far from Lincoln's first or central war aim, emancipation. The Emancipation Proclamation, as Howard Jones observes in his study of Lincoln's war diplomacy, was timed in large part to stem fears of Britain recognizing the Confederacy. Britain had concluded as a military matter that despite the population and industrial advantages of the North, the South was simply too large to be successfully conquered and held, and that as humanitarian matter, not to mention ending the economic disaster to the British cotton workers deprived of Southern cotton, the seesawing, inconclusive but fantastically bloody battles increasingly characterizing the "total war" should be brought to an end. Anti-slavery sentiment was strong in Britain, but economic privation from the cotton shortage high - the vote of British mill workers in at least one instance, however, to urge that Britain not recognize the Confederacy (despite the unemployment and privations) out of anti-slavery feeling being one of those rare moments of heroic cosmopolitan self-sacrifice. Since Lincoln's war aims up to that point did not include freeing the slaves, but simply a return to the status quo ante, Britain's government saw no reason why it should support the North over the South. The Emancipation Proclamation was intended in part, and timed in part, to make it that much more difficult for Britain to do so. In that regard it somewhat backfired, however, since it reached only to the states in rebellion - as British ministers observed, it reached only to the places where the Union writ did not extend, and did nothing for the slaves where it did. But British ministers also recognized that it had set the Union along the inexorable path of full emancipation, and Britain refrained from recognition.

Second, Lincoln's First Inaugural Address set forth an argument that resonates down to today of the principle of democratic governance. It is at once the most lawyerly argument perhaps ever offered as an inaugural address in the United States, an argument drawn quite specifically from the commercial law of partnership, of when it is permissible for a partner to withdraw and when not, and yet also exquisitely passionate ("I am loathe to close ... we must not be enemies ... the better angels of our nature"). The concern in that address is to say that the American experiment in democratic self-governance cannot be an exercise in which, each time a party is unhappy with constitutional arrangements to which it has given binding consent, it simply leaves. The result would be an ever subdividing polity until nothing is left - and it becomes prey to autocracies from without.

The argument, an argument for Union, by force if necessary, has served ever since as an argument in civil wars - mostly recently seen in arguments from Belgrade over the status of Kosovo, and if rump Serbs in some part of Kosovo were one day to decide to form their own independent enclave, it will figure again, only this time from Pristina. The argument against division is sharply contested today - pitting democratic self governance of the majority against arguments from self-determination, and my guess is that most people today, me included, think that union or separation is really decided by facts and circumstances on the ground, messy, long running, historical - is anyone willing to go to war over Quebec? Once one separates the question of slavery from the Civil War, was Lincoln right - that question reverberates in many contests around the world. But it also reverberates in a different way in the contemporary world, as official ideologies of toleration of differences in Western society gradually shift away from the Voltaireian notion of toleration to a language of official multiculturalism that is, at bottom, simply the re-creation of religious communalism in societies that are less and less liberal, in the sense of the neutral application of the rule of law to individuals in the public sphere, and increasingly centered around governance of individuals through their group and communal identifications: a reasonably apt description of Western Europe's direction and perhaps eventually America's as well. Communalism, however politically expedient for a society trying to manage identity conflicts, is still illiberalism.

But the First Inaugural and the Second are each premised upon another argument that continues to echo within international law: the debate over democratic sovereignty - sovereignty vested in the People and investing the government with authority and legitimacy from below - and global governance by some globally federal body. It is a fundamental divide in political culture - is the source of constitutional legitimacy the people in some direct sense, voting sense, ballot box sense, or is it some universal law or values or something from out there representing what the People would do if they were universally good. Each side can, in some way, claim the sovereignty of the people, but one is far more their direct expression than the other, and on this the differences between political culture in America and Europe are considerable. Either way, we owe to Lincoln a definition of "sovereignty" that is unmatched for its economy of expression: a "political community, without a political superior."

Finally, the Second Inaugural is an object of study and, in American constitutional religion, veneration really, as Lincoln's anguished attempt to justify a war and its war cost, in blood and treasure: not an unfamiliar question within international law and politics. I have always found it remarkable how much certain passages of the Second Inaugural echo Clausewitz, that one embarks upon war, but the frictions and passions of war make it impossible to confine it as one thought at the outset. It is also an address that might in some ways be characterized as the "Anti-Versailles": Lincoln was urged, particularly by radical abolitionists of his own Republican Party, to pin the blame, and the cost, and the burdens - reparations, even - for the war upon the South. He refused to do so, and the Second Inaugural offers his argument for why not. It is a remarkable argument, because it says, in effect, we fought for Union, but the Union is of north and south; if the burdens of the war were imposed solely on the south, it would make a mockery of the cause - Union - for which we fought; the burden, and in particular the moral evil of slavery, falls upon the whole political community. But then we note - with great importance to international law and conflict - this argument only really makes sense in the context of a political community, and war within a political community - I said anti-Versailles, but in an important sense, the argument of the Second Inaugural is not universal, as among political communities, but only applicable within a political community divided within itself.

The Second Inaugural is a current study for me, however, mostly for a quite different reason, one going to the ethics of war. The traditional question of the ethics of war - just war theory, other forms of ethical debate about war, including its expression in both jus in bello and jus ad bellum - is the right and wrong, good and bad, of war. Is it ever justified to resort to war? Can there ever be moral and, by extension, limits on war, or are we in the Hobbesian state of nature in which no limits can be admitted because we are subject to 'a necessity of nature' in seeing after our own survival. The Second Inaugural, however, raises a quite different, and really logically prior, question in the ethics of war, one not usually addressed, indeed hardly ever addressed: how is one to know the rights and wrongs, good and bad, of war? Each side "prays to the same God," after all, reads "from the same Bible"; yet both cannot be right, or perhaps neither is right, or fully right, or perhaps there is no right and wrong of it at all, and what is left is merely the application of force, as a matter of mere preference but not morality as such. Is it possible to know, and if it is not possible fully to know, how then should one act, when the consequences involve the lives of hundreds of thousands?

The most profound ethical point of the Second Inaugural, I have gradually come to believe, is not the call for reconciliation and an early example of what, in just war theory today, we would call jus post bellum nor is it even the recognition of the shared responsibility of this political community for slavery. It is, rather, the way in which the Address seeks to steer a path between moral relativism about the conflict, or else simply assertion of absolutist morality admitting of no possibility of moral error. Lincoln is a rhetoricist, not a philosopher, and he seeks to thread his way between these two by a form of language, rather than an argument as such. Whether it is successful, philosophically, is not so clear, but the formulation Lincoln adopts in a handful of phrases makes clear that he is seeking to bridge the gap, "with firmness in the right as God gives us to see the right, let us strive on to finish the work we are in" - which meant, at the time of delivery, not yet reconstruction, but war, fighting at Petersburg, the last outpost before the Confederate capital at Richmond.

Consider the possible twists and turns of that phrase, however: firmness in the right, yes, but as God gives us to see the right - not, however, as we see the right, necessarily, nor even as God sees the right, but as "God gives us to see the right." These are not the traditional or usual questions of the ethics of war. But they are the questions that anguished Lincoln at the end of the war, and it seems to me they are questions that ought to figure more strongly in debates over ethics and war, just war, and even the laws of war.

Why? Because if you don't have an answer to these questions, you have the option of saying, there's no right or wrong in a moral sense, or at least none that you can know, with respect to war. In the case of war, it raises the possibility of war without limits. Walzer famously raised unlimited war as a consequence of realism - by which he really meant Hobbesian state of nature reasoning - but you can get to unlimited war through quite different directions, either if you endorse moral relativism in connection with armed conflict, or if you endorse moral absolutism. In the case of moral relativism, it becomes morally acceptable to fight, or not fight, as you like, or you can withdraw morally into a quietist neutrality (which is not unknown in the privileging today of humanitarian neutrality as the 'highest' moral stance in war, rather than ever taking sides), or else simply treat your cause as the arbitrary application of power and go with it.

Alternatively, you can be so certain of your moral cause, moral absolutism, that you can also justify a war without limits - because you are fighting for the right and the just cause, and the other side does not - once again leading to the possibility of a war, waged in the name of justice, without limits. This is what many northern abolitionists believed, and as an ethics of war, it seems to be close to what William Tecumseh Sherman believed (the realist-sounding 'war is hell' trope associated with him notwithstanding) - this war is simply the physics of equilibrium being re-asserted following a violation of natural law.

In other words, when we raise the question of 'how do you know and what if you can't?' in connection with the ethics of war, it is not merely a rehash of the endless general debate over moral relativism and moral knowledge. On the contrary, it raises a specific and harrowing possibility in the ethics of war specifically - the possibility of unlimited war, war without limits. That is the needle Lincoln seeks to thread, by forms of language woven into the Second Inaugural, because everything about the conduct, his conduct, of the Civil War has led, step by step, away from limited war to, finally, perhaps the first 'total war' of the industrial age.

A haiku based on a lecture in my financial crisis course

2009-02-09T12:26:00.000-05:00

One of my students composed the following haikus based, he said, on a lecture last week in my financial crisis course ...

Stress from the crisis
Causes my hair to fall out
We will form a gang.

Then, in connection with a point I had made in class that, when we talk about “falling dominos” when successive counterparties fail in cases of systemic risk, it isn’t simply that institutions fall in a single chain - the ripples extend outwards, not just in a single line of dominos, but in multiple directions, like a network:

Systemic Risk is
Not like dominoes, it is
Not that linear.

Then, in trying to find ever-weirder metaphors to explain systemic risk, I appealed to The Puppet Masters, the classic sci-fi novel by Robert Heinlein, where the aliens communicate by “merging” to “share information” as a single body - hence, in trying to kill the parasite, virus would spread from one t the next as though it were a single organism; the act of communicating would spread the virus.

However, since no one had read the book or seen the movie, I shifted craftily to another sci-fi reference of networks spreading infections - the Borg!:

Virus infecting
One Borg drone can destroy all
That's Systemic Risk.

Asymmetry of Expansion and Contraction

2009-02-08T22:38:00.000-05:00

Expansion and leverage take place on the basis of assets; contraction and de-leveraging, however, take place by institution and market. The process is relatively smooth and incremental in expansion, but sticky and punctuated in contraction as institutions fail. The asymmetry is a function of the legal regime. Is the asymmetry correctly priced by the financial markets in assets and by the markets in institutional control? I wonder.

The Moral Psychology of Finance and Virtue Economics (a hasty note)

2009-01-30T09:12:00.000-05:00

(Other pressing engagements restrict me from saying more about this topic now, but I plan to turn and write something, at least as an introduction, later in 2009. It seems to me a quite important perspective in the current legal, economic, policy, and intellectual environment of the financial crisis, and one that has not so far emerged in its own right. I might make some unannounced revisions to this at some moment, as it mostly constitutes notes to myself. I’m afraid I buried the lede, though, and don’t have time to correct it now - sorry! - the important stuff is halfway in and then to the end.)

As economics absorbs psychology and expands to create behavioral economics (the intersection of actual behavior and posited rational behavior), it will inevitably wind up having to address a third large area. This third area has sometimes been called ‘moral psychology’ - the study of moral concepts that have to do with the emotional and affective propensities, capacities, and behaviors of human beings. Perhaps not really a discipline, it partakes partly of philosophy of mind and moral philosophy, insofar as it is about elucidating the meanings and concepts of affective states, including the virtues but also including crucial concepts of human psychology, such as trust, friendship, love, hate, and many more. It also partakes, for obvious reasons, of psychology - and yet psychology, because of the disruptions to the discipline of the past fifty years (starting with the collapse of Freudianism), has had difficulty taking part as it sorts its methodologies out.

Can I give any concrete examples of moral psychologists? The writers in moral philosophy who have analyzed the virtues have, to one extent or another, almost of necessity written to some extent in moral psychology - Philippa Foot, for example, or many writers in virtue ethics, notably Rosalind Hursthouse. It also includes writers in virtue ethics and law - Larry Solum, who many of us know for his Legal Theory Blog and as a jurisprudentialist and theorist of intellectual property, is, in my humble view, most important in the long term for his work on virtue ethics and judging. But moral psychology has also included, for reasons also obvious, writers on the morality of punishment, forgiveness, praise and blame, desert, thankfulness, and so on. Some of the most important - the great philosopher of morality, famous for his work on punishment, Herbert Morris, has written extensively on philosophy and psychoanalysis and Freud, and who continues to teach at UCLA on the moral emotions. The link among all these is the willingness to look not merely at actions and acts, but at the interior subjective state as a source and matter of morality, upon affect and affection, that necessarily require a view of mind, emotion, and feeling.

Lawyers and law professors have long shown great propensity for moral psychology - in the distinctions of intentionality in the criminal law, for example, or distinguishing between kinds of performative utterances, and so forth. Taking a book not-quite at random from my shelf, Ian Ayres’, et al., Insincere Promises (Yale 2005). Although you might have thought it would begin with a disquisition on rationality, promising-and-defection games (important, of course), instead it begins with a fastidiously subtle discussion of promising as a performative act, a rigorous linguistic account of mental states in promising sincerely and insincerely. Lawyers are good at moral psychology. To some degree, however, in the infatuation of academic law with rationality games of economics, moral psychology has been devalued as, well ... the humanities.

Affective moral psychology has been au courant for at least a generation now in academic moral philosophy; nothing new there. Behavioral economics is quickly coming into its own. Two things seem to me to have gone unremarked, however, each of which deserves far greater attention.

One is that this rising field of behavioral economics stands in need of far greater attention to and from moral psychology - specifically from philosophers who, trained in the careful distinguishing of moral concepts but also attuned to affect, are able to disentangle such concepts crucial to the new disciplines, but frankly not carefully thought out, such as trust.

I will return to ‘trust’ in a moment. But first note that this attention from philosophers is different from another kind of attention that seems to flow in fits and starts across successive academic generations - the philosophy of economics more generally, meaning by that mostly the philosophical concepts of value and comparison. The philosophy of economics (the field I would be most inclined to study in philosophy and intellectual history were I starting all over) has had some great contributions in recent decades - Elizabeth Anderson, Martha Nussbaum, Amartya Sen, Cass Sunstein (particularly his contributions on incommensurables and on analogical reasoning). Yet it tends to stop and start over the long term. We need more discussion of these core concepts in economics, more attention from philosophers, not less - but I mean something much more specific in referring to moral psychology: philosophy of economics only sometimes addresses itself to questions of affect.

Rising awareness of the specificity of finance, and the role of such things as passions, greed and fear, virtue and vice, rationality and irrationality - naturally these are the first subjects for the new behavioral economics and behavioral finance. But notice how quickly these subjects turn to topics in moral psychology. The great finance economist Robert Schiller, for example, had an opinion piece, drawn out of a new book, in the Wall Street Journal a few days ago (WSJ, Opinion Page, January 27, 2009) that specifically asserted ‘trust’ as a condition of financial markets. Yet it was striking how undeeply conceived the concept of trust was in the essay - it was nothing more than ‘confidence’ in one’s fellow participants.

Whereas the essay seemed to rely upon a quite different idea than merely mutual confidence giving rise to animal spirits, in Keynes’ famous term. It seemed to rely not on trust in one’s fellow market players, but instead the much more psychologically and philosophically nuanced idea that in a society governed by the neutral rule of law, while one might need a certain amount of mutual confidence in the willingness at one point or another in the business cycle to take risks, one did not need to have any great trust in one’s fellow market participants, but instead trust in a set of public institutions to enforce agreed upon relationships between otherwise not-greatly-trusting participants in markets. This is, after all, what separates out public trust societies from cousin-loyalty societies - and the implications of wherein you place your trust have enormous implications for what and how you regulate in order to maintain that necessary trust. If one stops to parse the concepts, trust involves a mutuality, or assumption of mutuality, that confidence need not - it might, as my reference to ‘mutual confidence’ suggests, but it need not. Trust is psychologically and conceptually - evidenced in the nuances for how we use the terms, which is to say, partly as synonyms but partly not - deeper and more inherently ‘mutual’ than confidence: these apparently minor or subtle differences have considerable implications, perhaps surprisingly, for what Schiller’s essay might propose to regulate or not, as a matter of public policy.

This is a small example, of course, and one that does not especially deal with affective aspects of trust - but it is illustrative of the general problem that finance economists have not necessarily thought all that deeply about affective concepts, let alone how an affective, interior, intersubjective concept like trust can be distinguished from other closely related, and yet different (and with different implications, sometimes very large, for how to regulate) concepts in moral psychology - or operationalized as testable propositions in empirical behavioral economics. I would guess that Professor Schiller has probably not read Francis Fukuyama’s under-appreciated book on precisely this subject - and a very fine work of moral psychology by a non-philosopher - Trust: The Social Virtues and the Creation of Prosperity.

The second unremarked thing follows closely on this. It is that finance, in particular, stands in special need of dialogue with moral psychology. Why finance more than economics generally? It is because finance, and finance theorists, are discovering with astonishing rapidity in the dislocations of markets today that markets do not always follow impersonal rules of economic rationality - there are limits upon efficient markets (I say this as a believer, not a revisionist), there are empirical behavioral tendencies that can undermine markets that regulation needs to take into account - and there are important conceptual issues about empirical behavior that need to be understood even in the real-world act of establishing regulation. Trust is a good example - if you think that trust in financial markets is mostly about trust in your fellow participants, as even Greenspan seemed to suggest in his latest Congressional testimony, then you will have one view about regulation. If you think it is about trust in the neutrality of public institutions leading to the enforcement of contrast irrespective of the identity or propensity or affect of other market participants, then you will have a quite different view of regulation. The conceptualization of what is at bottom a concept, a concept with feet planted in multiple disciplines, but ethics and psychology being two of them - that conceptualization really matters. It matters in particular in finance.

Why finance, then? Because in many other parts of economics, the operation of brute self-interest or else the truly impersonal operation of institutions is sufficient to establish and ordain behavior. You don’t need to reach deeply into psychological, let alone moral, concepts, provided (typically) that the law is sufficient to enforce external rules. Finance, by contrast, to the degree that that economists such as Schiller are themselves today asserting that the nature of markets permitting mass participation by individuals, and not just by impersonal institutions, invokes the psychology of both individuals and masses (that is, without saying more about it, both psychology and sociology - sociology, that is, and not merely psychology, in such matters as legitimation of public institutions such as financial markets), then finance is different. It is different in part because of the different role of psychology - and concepts that rely upon affect and upon concepts and understanding of moral affect, greed and fear, virtue and vice, reward and punishment, praise and blame, shame and guilt, anxiety and relief, euphoria and melancholy, animal spirits and animal passivity, affection and disaffection. Those are especially present in mass market finance, as the behavioral economists well know today - but that betokens a far closer examination of the underlying concepts and their meaning. This is a job for moral psychology.

And so ... the moral psychology of finance. Perhaps even a new, and slightly different field ... virtue economics? Why not?

(I see from comments that some people are taking ‘virtue economics’ to mean ‘economics as influenced by distributive morality’ - that field is already highly worked out, and I intend something different here. By ‘virtue economics’, I mean not questions of distributive justice, but instead the conceptual meanings, distinctions, and elucidation of psychological states, emotions, feelings, and affect, as they interact with economics and financial economics particularly.)

I don’t have time at this point to say more. But if we were going further, we might turn to consider not just moral psychology and finance, but also sociology and finance. It is not irrelevant to say that with respect to public financial markets, there is a certain kind of legitimation crisis underway. That is a concept alien these days not just to the economists, but in large part even to the political scientists. But, really, how is one to understand the problem of trust or confidence in public markets in which one invests one’s life savings without a deep concept of ... legitimacy?

What's good and what's bad about transnational governmental regulatory networks? The instant answer about legitimacy...

2009-01-27T14:53:00.000-05:00

I was asked by a friend the other day about my (evolving) views of transnational governmental regulatory networks - the kind of networks championed by Anne-Marie Slaughter, for example, in her book A New World Order. In my lengthy review of that book, I criticized such networks as seeking to “square the circle” of global governance - global governance without actual global governance. I think that critique is correct, but I also think I should be clearer about the virtues of such networks - provided that they limit themselves in important ways.

There are problems with such networks from an accountability and transparency standpoint. The recent, very good SMU conference I attended back in November had a talk by someone who had been part of such a network that dealt with certain banking issues, and she thought the network great - until she became an academic and tried to study it and discovered that no one would so much as talk to her, let alone show her documents that, indeed, had important implications for policy.

But accountability and democratic legitimacy have become somewhat confused in the literature on networks, governmental and NGO advocacy networks. They are, after all, separate things and separate political/moral values. You can have democratic legitimacy and yet have very poor accountability mechanisms. And you can have excellent accountability mechanisms, yet not through democratic mechanisms, but instead through legally enforceable governance standards, courts of law, efficient bureaucratic oversight, etc. So saying that intergovernmental regulatory networks of the kind praised in A New World Order often lack transparency or accountability is important, but it is not always, and not always most importantly, because of a lack of democratic legitimacy. The question of democratic legitimacy is there independently. So is the question of accountability. (I discuss this in an upcoming review essay in the American Journal of International Law, reviewing a book, NGO Accountability - I think it will be the January 2009 AJIL, but AJIL is a bit backlogged.)

Nonetheless, insofar as these regulatory networks are limited to doing what they are able to do under the grant of bureaucratic - usually executive - authority within their own (democratic - which raises a separate problem) states, I do not have a problem as such with their democratic legitimacy. There might be problems with their regulatory reach, and this might be magnified in a transnational setting with less transparency. But in principle, I do not see this as very different from the fact that national agencies might have similar overreach and democratic deficit problems.

Notice how admirably conciliatory I am being today of these networks. And that is important to stress, because I do indeed see them as having a genuinely legitimate role, within certain bounds, for precisely the reasons their advocates have said. By contrast with the NGOs, they are able to partake of the (we hope) democratic legitimacy of their national governments. But to do that, however, requires that they act within the terms of that national legitimacy.

That last condition limits them to a coordinating function. It might be very robust coordinating function - meaning one in which the several members exercise great pressure to keep players 'in the game' and to prevent defection from a collective action system. But it is still a coordination among sovereign states, in which, if one is willing to pay the price in reputation, future dealings, etc., there is no fundamental legal mechanism to prevent a member from departing the system. If Lincoln aptly defined sovereignty as "a political community, without a political superior," then a coordinating group of sovereigns must accept that it is not a true ‘partnership’, with the power to prevent departures. On the other hand, the group can offer collective benefits to offset the burdens.

This then leads to what seems to me the fundamental problem with these networks. It is not the networks as such - it is what they are imagined to be in a certain liberal internationalist imagination, including how they are praised in A New World Order. It is the fundamental idea that over time, as a matter of simply history taking its (and what I would call its Whig History) course, governance within networks, and among networks, will "densify" until they coalesce into something that is more than just coordinated networks of various bureaucratic functions. Over time, these mechanisms will solidify into true networks of governance.

Now, I am highly skeptical of that as an empirical historical proposition about the future. But I am equally skeptical of it as a moral/political proposition, precisely on grounds of democratic legitimacy. And on this matter of morals, I suppose I also part company with the "new sovereigntists," at least in their 1990s original form. In that original form, the emphasis was on sovereignty, essentially for its own sake and own value. My emphasis - and I believe that people like Jack Goldsmith and Jeremy Rabkin have come my way in the last decade - is not on sovereignty as such, but on democracy and democratic legitimacy, for which sovereignty provides a crucial vessel for its defense. It is not sovereignty as such I wish to defend; it is democracy and (liberal, that is, including the rule of law, fundamental individual rights, etc.) democratic societies, for which sovereignty is a means of its defense, not the thing to be defended as such.

I understand that if one is a true liberal internationalist, you cannot really be satisfied with resting upon coordinated transnational actors; you want true global governance. And it is natural to want to see these things as growing into that governance. I also cannot over-stress how much I admire A New World Order for being willing to say flatly that NGOs cannot offer that legitimacy, only governments can. (The NGO advocates and their intellectual defenders have moved to a kind of weirdly obscurantist position of calling for "norm entrepreneurship" as a vehicle for eventual governance, but that is mostly a way of eliding the legitimacy question.)

But I do not accept that one can make the jump from coordination to governance without sacrificing the principle of democratic legitimacy. The effect of this, in today's world, is that it is an argument not so much over the existence of transnational regulatory governmental networks today, but rather over what they might become in the future. It is mostly an argument about anticipations and hopes for the future. However, if you are committed to them becoming all these wonderful political things in the future, you might well wind up ruining them and their narrow, bureaucratic functioning within a narrow, bureaucratic mandate today. Why? Because imagining their expanded political role in future governance leads to overplaying the narrowly regulatory role which gives them a certain legitimacy today precisely because they are perceived as narrow in activity and ambition. Alter that perception, and you raise significant legitimacy issues for the activities they might carry out today reasonably successfully.

NYT Room for Debate blog on Guantanamo policy

2009-01-24T11:53:00.000-05:00

I was invited to participate in one of the New York Times’s group blog discussions, Room for Debate, this one on Guantanamo detainee policy. It is a pretty interesting group of discussants - David Cole, Andy McCarthy, Ben Wittes, Diane Amann, Deborah Colson, Glenn Sulmasy, and me - and the posts are quite substantive.

(So now I feel a little bad about all those mean things I said about the NYT in earlier posts here. Sort of. Well, not so much. Actually, my analysis of the Times’s business model is still right.)

Executive Order on CIA interrogation - "in any armed conflict"

2009-01-23T23:31:00.005-05:00

(I am cross-posting this from Opinio Juris.)

I am unclear as to one thing in the Executive Order issued by President Obama regarding interrogation practices. The text of the Executive Order is here. It provides that the CIA must conform to the Army manual with respect to interrogation techniques, but says (bold-face added):

(b) Interrogation Techniques and Interrogation-Related Treatment. Effective immediately, an individual in the custody or under the effective control of an officer, employee, or other agent of the United States Government, or detained within a facility owned, operated, or controlled by a department or agency of the United States, in any armed conflict, shall not be subjected to any interrogation technique or approach, or any treatment related to interrogation, that is not authorized by and listed in Army Field Manual 2 22.3 (Manual). Interrogation techniques, approaches, and treatments described in the Manual shall be implemented strictly in accord with the principles, processes, conditions, and limitations the Manual prescribes. Where processes required by the Manual, such as a requirement of approval by specified Department of Defense officials, are inapposite to a department or an agency other than the Department of Defense, such a department or agency shall use processes that are substantially equivalent to the processes the Manual prescribes for the Department of Defense.

I am unclear why the language “any armed conflict” is included. Why would the Executive Order not direct the CIA to conform to such techniques as limited to the Army manual under all circumstances? The CIA does not act solely in the context of armed conflict; on the contrary, although it sometimes acts in armed conflicts, of course, its domestic law authorization extends to non-armed conflict situations as well, provided various domestic legal provisions are met.

I understand of course that under Supreme Court rulings, the US is in an armed conflict with Al Qaeda - the specific legal meaning in domestic law of the global war on terror - and that this was the mechanism by which the Court applied Common Article Three standards. (That holding has always seemed to me quite unjustified as a matter of the text of the Geneva Conventions and the history of Common Article Three; I regard it as an instance of the Court, without a lot of expert knowledge or briefing, grabbing onto a legal text that allowed it to prescribe and proscribe the conduct it wanted, result oriented jurisprudence. But okay, water under the bridge.) The Court has ruled that as a matter of US domestic law, the US is at war with Al Qaeda everywhere, and in the conclusion that it is a war, all branches of the USG have concurred. As far as US law is concerned, it’s war with Al Qaeda and the meaning of the Executive Order is clear on this point.

But a couple of things. One, not everyone agrees that as a matter of international law, IHL, the US is legally at war with Al Qaeda in the sense of a global, everywhere in the world, armed conflict governed by IHL. So far as I last understood the ICRC view, it did not believe this. On the contrary, the last time I was in a public meeting with the ICRC, for example - at SAIS here in DC - its view was that as an international law matter, the US was involved in two wars, one taking place in the theatre of Afghanistan and the other in the theatre of Iraq. It was simply not factually the case that there was a “global war” underway in a legal sense; although it plainly welcomed the result reached by the Supreme Court in deeming Common Article Three applicable, so far as I have understood it has not accepted that there is a global war in a legal sense. And, let me add, that is my view as an international law matter as well; I distinguish between the strategic virtues of seeing a global war and the legal facts.

Suppose, however, that the Obama administration were also to reach this conclusion about the issue of whether there is, as a matter of international law, a global war that reaches to all agents of Al Qaeda? I.e., conclude that there is no global war? What would be the reach of the Executive Order?

Well, that’s pretty easily handled by the lawyers. I just don’t understand why the limitation. More importantly, however, even in the context of jihadist terrorism, it is not the case now and will certainly not be the case into the future that future terrorists will always and necessarily be part of or affiliated with Al Qaeda. The whole idea of affiliation in a membership or ‘corporate’ sense has been eroding in favor of far looser networks of ideology. Not to mention covert action in the future that has nothing to do with jihadists. If that is the case, then sooner or later, folks picked up by the CIA will not be part of “any armed conflict.” Will the CIA be limited to the Army manual in those circumstances, given that they will not necessarily be picked up in the course of an armed conflict? Why the limitation?

I suppose I might be missing something really obvious here, so I would welcome anyone explaining the reason for this limiting “in any armed conflict” language.

Thanks to Larry Solum for the shoutout

2009-01-21T11:38:00.000-05:00

That was very nice of Larry Solum to post a mention of my new paper, The Assumptions Behind the Assumptions in the War on Terror, on the Very Great Legal Theory Blog. Even nicer of him to call it highly recommended! Alas, I’m not so sure I highly recommend it, though. I picked an easy target and then scattered shots all over the place. There are some important things in there, but I don’t think it’s the best organized or written thing I’ve done.

But I think the topic is hugely important, and I plan to pursue it in a series of articles or some kind of venue.

One perhaps overlooked part of the article, however, is the comparison of cost benefit analysis comparisons in private business settings versus public governmental settings. As the article notes, in the private firm setting, the comparisons are automatically self-constraining - meaning that you don’t wind up comparing completely wacko things, or in other words, private firms automatically tend to limit their comparisons to things that are in some real sense comparable - because they have no special obligation or necessity to be involved in any particular line of business.

Government, on the other hand, doesn’t have that luxury - it must be involved in radically different forms of comparison because it has to be involved in the provision of things that involve different and plural values. The mechanisms of comparison developed for private firms, however, tend to be developed - NPV, etc. - within a constrained universe of things to be evaluated and compared, in a way that is not true of public institutions. This isn’t exactly news, of course; public management theory has recognized this difference between it and private firm management decision theory for a long, long time. But I don’t see the distinction showing up so much in the law and economics literature as I would have thought.

This is one of those observations that tends naturally to occur to someone like me, of that small subset of people who do both finance law and national security and public international law. There is something peculiar, at least to a finance professor like me, to seeing a technique that has a routine, less than transcendental meaning within the world of private business, ratcheted up to be a kind of philosophical talisman to be applied to, well, everything. Tools like NPV have meaning - says this finance law professor - only within bounded universes in which something else sets the terms of what can be meaningfully compared. NPV depends upon exterior concepts of meaning; it does not generate them itself.

Assumptions Behind the Assumptions in the War on Terror: 'Event-Specific Catastrophism', Cost-Benefit Analysis and Its Limitations

2009-01-19T16:18:00.002-05:00

I have just posted a new article up to SSRN: The Assumptions Behind the Assumptions in the War on Terror: Risk Assessment as an Example of Foundational Disagreement in Counterterrorism Policy, 54 Wayne Law Review 5505-535 (2008).

Here is the abstract posted to SSRN:

This 2007 article (based around an invited conference talk at Wayne State in early 2007) addresses risk assessment and cost benefit analysis as mechanisms in counterterrorism policy. It argues that although policy is often best pursued by agreeing to set aside deep foundational differences, in order to obtain a strategic plan for an activity such as counterterrorism, foundational differences must be addressed in order that policy not merely devolve into a policy minimalism that is always and damagingly tactical, never strategic, in order to avoid domestic democratic political conflict.

The article takes risk assessment in counterterrorism, using cost benefit analysis, as an example of a foundational disagreement that cannot easily be elided. Examining an extreme, indeed crude, recent example of cost benefit analysis applied to the risks of terror and the costs of counterterrorism - John Mueller's widely noticed Overblown - the article suggests that cost benefit analysis, at least applied in this way, runs roughshod over other important values in counterterrorism policy, such as justice, but in addition, makes radical yet unstated assumptions about what cost benefit analysis seeks to compare in establishing counterterrorism policy or estimating the risks and costs of terrorism - unstated assumptions that, in fact, assume the conclusion.

The article notes that cost benefit analysis tends to promote a policy-minimalizing "event specific catastrophism" - seeking above all to prevent simply the next, serial terrorist attack, with however no greater strategic vision. Indeed, the article says in conclusion (as Philip Bobbitt has noted) cost benefit analysis is "relentlessly tactical," not strategic; it also tends toward serial 'event specific catastrophism' as its analytic frame; and it is a method of evaluating proposed courses of action, not generating them, and hence promotes a strategically questionable tendency to reaction as a response to terrorism.

This article presents these ideas in brief fashion, however, as the first draft in a larger project on cost benefit analysis and counterterrorism, and it does so by reference to a book that is unabashedly crude in its approach to both cost benefit analysis and terrorism/counterterrorism. The critical project will extend beyond this particular article, which is in effective a a first pass at developing a critique. It is also an article that does not extend beyond events of early 2007 (when the original address was given) and should be read in that light.

I don’t think this is the smartest piece I’ve ever written, alas. I’m treating it as the first draft of a larger, but important, project on the limits of cost benefit analysis. Mueller is popular, in all the vulgar bad senses of the word, and in that sense an easy target. But the vulgarity of Mueller’s analysis has certain advantages, in that it makes every conceivable mistake, openly and notoriously. But I think much of the critique also applies even to much more cautious formulations of CBA as the driver of policy in responding to terrorism. Here is the conclusion, by the way, slightly rewritten to stand alone, as something I shared with the Hoover Task Force last week:

Kenneth Anderson, The Assumptions Behind the Assumptions in the War on Terror: Risk Assessment as an Example of Foundational Disagreement in Counterterrorism Policy
(Wayne Law Review, 2008)

(Slightly modified conclusion from the not-final draft galleys.)

V. CONCLUSION: OF STRATEGY AND TACTICS

This essay has made five over-arching points.

First, US responses to terrorism—whether one calls it generically
counterterrorism policy or a war on terror or anything else—depend on
certain underlying assumptions, what this essay has called the
‘assumptions behind the assumptions’ in counterterrorism. Cost benefit
analysis is a core ‘assumption behind the assumptions’ lying below the
surface of operational counterterrorism policy.

Second, cost benefit analysis itself depends upon further
assumptions. These further assumptions have a large impact on the
otherwise apparently straight-forward comparative approach to weighing
up policy options in the face of risk and uncertainty. These further
assumptions embedded, but not necessarily transparent, within cost
benefit analysis include, among others, the difficulties in ensuring that
the analysis compares apples-to-apples or oranges-to-oranges. In a social
and political world of multiple and plural values, this is far more difficult
than it would be, for example, in the case of financial analysis in the
private marketplace, where, at least in principle, comparisons can be
reduced to the common denominator of money. Not all values in our
social world can be reduced to a common denominator.

Third, although cost benefit analysis can provide important data
for making moral judgments about such fraught matters as how to
respond to terrorism, it does not finish the moral discussion—at least not
for most people in American society. Beyond whatever advice cost
benefit analysis might give, most people are ‘permissive deontologists’
when it comes to matters of how to respond to purposive and intentional
actions such as murder and terrorism. For the same reason—justice—we
devote far greater resources to the pursuit of criminals than cost benefit
analysis might plausibly justify, we are also inclined to devote more
resources to responding to and preventing terrorism. Arguments from a
cost benefit analysis that suggest that we devote too many resources to
counterterrorism would also apply with equal force to the argument that
we allocate too many resources to the criminal justice system for the
pursuit of ordinary criminals.

Fourth, similar observations about the overreaching tendency of cost benefit
analysis, under an apparently simple exterior, can be made with respect
to ‘commensurability.’ As noted earlier in the essay, this is a point
closely related to, but still different from, the observation that we, as a
society, embrace plural values that are not reducible to one common
denominator. cost benefit analysis relies upon the comparison of
‘opportunity costs,’ but the comparison of opportunity costs depends
upon them being genuinely available ‘opportunities’—social choices that
might genuinely be made. Whether an opportunity is genuinely an
opportunity in our existing social world or not is a question of social fact
about the world. Arguments from cost benefit analysis that rely upon
opportunity cost comparisons involving socially or politically
implausible opportunities—opportunities from another, alternative
world, so to speak, not our real one—are of much less importance than
their conclusions might seem. Again, such arguments overreach.

This essay has focused on the writings of one particular analyst, John
Mueller, and his book Overblown, as an example of the deeply flawed
use of cost benefit analysis. It is a more than fair point to respond that
using Overblown as the case study in the ills of cost benefit analysis is
the worst kind of strawman argument. On the one hand, the book has
been widely noticed, cited, and relied upon for argument by important
journalists and policy analysts, such as journalist James Fallows.62 On
the other hand, serious academic students of cost benefit analysis would
recoil from the sweeping, breezy assertions and conclusions made by the
book, on all the objections raised above and perhaps more. The reason
for making it the target in this essay is not in order to suggest that it
stands in for much more serious cost benefit analysis. It does not.

But, Overblown is illustrative of the basic errors that can and might
arise from failing to take into account the underlying assumptions of cost
benefit analysis—and the illustration is far easier to see in a crude form
of cost benefit analysis, rather than a more careful and hedged version of
it. The point of this essay is not to undermine the case for cost benefit
analysis in responding to terrorism—far from it—but instead to help
define the subtle limits upon the method and the matters that must be
drawn out carefully and explicitly in order to ensure that comparisons are
indeed comparable, particularly with respect to counterterrorism policy.

It is therefore useful to start with a view, claimed on its own terms to be
generated by cost benefit analysis, that America’s approach to terrorism,
far from trying to wipe out its perpetrators or even devote much in the
way of resources to prevent it from taking place, might instead merely
“center around creating the potential to absorb its direct effects,” and
“mitigate its longer range consequences.”63 The very boldness of the
claim, and the fact that the claim reached such radical conclusions
through the application of cost benefit analysis, puts squarely on the table
what the method can do, cannot do, and what assumptions it relies upon.
There are sophisticated and defensible applications of the method to
counterterrorism,64 but as a starting point for considering the method’s
assumptions, sometimes the crudest, least methodologically protected
example provides the most illustrative value (provided that the critic
understands that the baby of cost benefit analysis cannot, therefore, be
thrown out with the bathwater, as it were).

Fifth, one final observation can be made about cost benefit analysis and its
underlying assumptions. It is an observation particularly pertinent to its
application to terrorism and counterterrorism. The nature of cost benefit
analysis is essentially reactive. It is—and this point deserves an essay all
its own with respect to national security and terrorism policy—a method
of evaluation, a mechanism for evaluating proposed courses of action,
not for generating them.65 As a method, it is, in Philip Bobbitt’s phrase,
“relentlessly tactical.”66 Cost benefit analysis does not propose solutions;
it evaluates solutions offered by other processes. It is not a strategic form
of thinking.

The fundamental limitation of cost benefit analysis, in other words,
lies not so much in its own assumptions, but in the limits of what it does and does not do.
The long-term US response to terrorism—counterterrorism policy, the
war on terror, however one wants to frame it—requires a strategic form
of thinking. We will not agree on what the strategy should be, which is
why, as a democracy, we have majoritarian processes to sort out the
agreements and disagreements, and come to a form of action. Cost
benefit analysis can provide indispensable information for arguing over,
and finally formulating, strategic approaches. But it will not come up
with those strategies in the first place. And that, in the end, is its true
limitation.

Thanks for MLK

2009-01-19T16:09:00.000-05:00

Like many people, I reread MLK’s ‘I have a dream’ on MLK Day. But today I also reread the Letter from Birmingham Jail. Here is hoping all of you have a peaceful and lovely MLK day. As far as I can tell, things are pretty hopping and jolly down on the Mall here in DC; it seems like a lot of cars and buses have parked up on American University campus in order to take the Metro bus downtown. But all is very quiet out here on the edges of DC in Spring Valley. I don’t have the stamina to deal with either the crowds or the cold on the Mall and am just hanging out at home. The semester is finally beginning for real in the last half of this week, or at least that’s how it seems. Everyone have a good holiday.

Asylum?

2009-01-19T00:25:00.000-05:00

I wonder if the time has come for the United States to offer political asylum to the Jews of Canada, Britain, France, Belgium, the Netherlands, and elsewhere in Europe?

The NYT and the information theory of the leisure class, part 1/4

2009-01-07T20:38:00.002-05:00

(Welcome Instapunditeers! This is a long essay, put up in four successive posts, on the business model of the New York Times and how it can be seen to follow certain parts of Veblen’s theory of the leisure class. An abbreviated version of it was published at Pajamas Media online. This long version goes into more discussion of pricing under conditions of conspicuous consumption and luxury goods.)

The Information Theory of the Leisure Class, or,

A Requiem for my New York Times Home Delivery

Is it the politics, or is it the business model, and are they the same thing?

I am about to drop my Washington DC home delivery subscription to the New York Times. We’re going online for free.

Most readers surely wonder not why I would drop it, but instead why I hadn’t done it years ago or why I ever had it in the first place. It’s not cheap. It runs $53 a month – over $600 a year. But cut me a break – my wife is a native New Yorker, and even after a dozen years in DC, the Times is still the hometown paper.

It’s not the political content of the paper that is causing us to drop the subscription. Sure, I’m irritated that subscribing to the Times probably counts legally as a Democratic Party donation. I’m annoyed not so much by the Times’s relentless cramdown of its politics on the news pages, but the risible manqué that its “opinions” are “facts” – along with its suppression of discussion even remotely unfavorable to its candidate in this just-past election cycle. But this has been said a thousand times: what’s new in that?

Besides, I believe in reading widely across the political spectrum – this being one of the asymmetries between right and left wing intellectuals. The issue at bottom, with respect to keeping or not the hard copy subscription, is not the New York Times’s politics, but rather its business model and what it is doing to the content as a function of the newspaper’s price. The politics and the business model are intertwined in the creation and publication of content, true, but they are still not quite the same thing.

This, of course, against the well-publicized backdrop of the New York Times Company’s economic woes. Its corporate debt downgraded a few weeks ago to near junk status. Share price down around $7 today. Plunging revenues even outside the current recession. A sale-leaseback of part of the Times’s stake in its (overly-opulent) midtown headquarters (a wonderful real estate investment in better times in Manhattan, which will come again, but a great investment only if the Times mostly decamps to New Jersey). Some $400 million in debt repayment due in April. No, the Times is not indebted to remotely the same extent as, say, the now-bankrupt Tribune group under Sam Zell. The Times’s many enemies should give up the fantasy that it is somehow about to go under; it’s not. It has many problems, starting with Pinch Sulzberger deciding to break the unwritten pact of family-controlled-but-publicly-traded newspapers, viz., that the family would use its control only for editorial content, not to enrich itself at public shareholder expense. The rapacious Sulzberger family has been willing to keep Pinch in power provided that he continue paying out completely unsustainable dividends, at the expense of share price and value; well, even the dividend has finally been slashed. The New York Times Company might be ripe for a buyout by a private equity group, if the family were to splinter sufficiently – no one should doubt that the brand name has huge value, or that it is currently substantially discounted, weighed down by inept and greedy family management and the broader newspaper economic crisis. I have close friends who work at the Times, and I do indeed worry about them, their careers, and their families.

(Continue to part 2/4.)

The NYT and the infomation theory of the leisure class, 2/4

2009-01-07T20:34:00.002-05:00

(This is the second of four posts, putting up a long essay on the business model of the New York Times ... a short version of this was published by Pajamas Media online.)

From newspaper to daily magazine

I used to be a shareholder, by the way, and a close reader of the New York Times Company’s endlessly disheartening financials. Not very many shares, please; I am not, as the assassin says to Mal in Serenity, a complete moron. Eventually economic reality must set in – even for this finance law professor who owned the shares as a finance class teaching aid (economic sectors in crisis make for good classroom examples). I finally sold at a hefty loss over the summer.

In the 90s, the Times bet that it could become the general newspaper of elites across the United States – become in the category of a general newspaper what the Wall Street Journal had already become as a national business paper. Falling printing costs and new forms of communication brought the costs of distributing the paper nationwide down sufficiently far that regional production and distribution were within striking distance of costs of the metropolitan NYC paper. Combined with a rising urban elite in many city centers, the national newspaper strategy was not a mad dream. I certainly thought it a smart strategy at the time. Elite regional papers, such as the Los Angeles Times, were justifiably frightened; the Washington Post Company did the smartest thing of all and diversified a few years later out of media and into the Kaplan test prep cash machine.

Content was already shifting. The Wall Street Journal, by contrast, always had to remain anchored in the core presentation of semi-specialized facts and data to satisfy a hard nosed business audience, but it wrapped that staid, fact-oriented newspaper around a conservative, polemical editorial page, while keeping them emphatically separate, and so got two national audiences for one paper. The Times could not do that. It correctly understood that its new, national target audience was what David Brooks famously called the Bobos, the market oriented yet professional, bourgeois yet bohemian, affluent and self-regarding, self-involved elites of the major cities. They didn’t seek facts as such from the New York Times. They already had the ones that really mattered from other, more specialized sources. The only factual area where the Times retained an edge was in foreign reporting, but years of shutting down foreign bureaus and cutting correspondents had largely depleted that competitive advantage, to the extent that this new readership cared about it.

What the Bobos sought instead from the Times was a cultural attitude, confirmation of who they were. The Times, for them, was less about sense than sensibility. The tendency of contemporary baby boomer journalism to narration, reportorial self-expression, and Dickensian sentimentalizing was already pronounced; call it the Long March of the New Journalism through the Institutions. The result was a New York Times that gradually began turning its news pages, and especially the front page, into a magazine.

Magazines are good things. At their best, they are ‘informed opinion’ – each of those, however, a separate qualification. But magazines are not driven by a fundamental, baseline assumption that a story, or a front page, or a newspaper is worth reading each and every day just because the facts are the facts and you need to know what’s going on. A caricature, of course; every newspaper understands that it needs a certain amount of sensation beyond the straight facts. Still, the ultimate justification of a daily paper is “this happened.” A good magazine, by contrast, is not about the value of contemporaneous facts as such, but instead some form of post-hoc analysis – sometimes deep and sometimes not and sometimes pure entertainment – but always something that draws you in beyond the bare fact that the facts are the facts. (As for television “news” – the nature of the medium is visceral imagery, not facts; it is finally just about shocking sensibilities, including via the ubiquitous talking heads, whose principal function is to appear to talk – their mouths move, sounds come out – but actually merely to emote: sensibility, once again, not sense.)

In the Times’s new business model for content, the newspaper is really a magazine and opinion is the draw. Value is supposedly added by publishing stories that are carefully calibrated to the pre-held sensibilities of the consumer-reader. And yet, in order to preserve the idea that this is still a newspaper, the opinions are presented not as a magazine would, but as a daily newspaper does – as verisimilitude. Confirmation bias reigns; this is true at conservative as well as liberal media outlets, of course, but the difference is political dominance of the mainstream media oligopoly, as Noam Chomsky might say. The New York Times as facilitator of elite onanism; high-gravitas journalism as convenor of the elite circle jerk. Opinion as news, offered daily as fact. Readers are no doubt yawning at this ‘discovery’; tell me something I don’t know.

But one bit of collateral damage from the magazinification of the Times is the New York Times Sunday Magazine – the Times has a magazine, and a very good one (for which I have occasionally written). Yet it is tough these days to distinguish the writing in the news pages from the writing in the Magazine, though the latter is better edited. If I were Gerry Marzorati, editor of the Magazine, I think I would be mightily pissed that the newspaper had taken over my gig on a daily basis and stupidly de-valued my weekly niche product by deciding to compete with it.

III

From daily magazine to online cocooning

Come the Internet Age. The magazine model remains in place, but the national strategy is dead in the water. Virtually every strategic piece is upturned. Costs may have fallen for regional and local printing and distribution – but not as far as costs of distribution on the Internet. Print ads are going downhill, too – long term, not just in the recession – because readership is migrating to the Web. And because, ominously, so is consumer purchasing. It’s disintermediation – middlemen getting cut out and, at least as far as advertisers are concerned, precisely the same economic transaction taking place – look at pretty girl in cute clothes and then buy some, click – but in a much more cost effective way.

And the coolness factor of having the Times in, say, Austin, is rapidly evaporating; who cares about having any hard copy newspaper? My students certainly don’t. There is a national general-interest magazine and it is called the Internet – or at least your political part of it, red or blue. The Times is left with declining stock values, questionable bonds, a glamorous headquarters building, hefty payroll costs, fleeing advertisers, declining subscriptions, a failed national strategy, a Boston Globe barely on life support, opinion based content, the possibility of serious competition even in Manhattan from a revamped Wall Street Journal, and a brand name that increasingly means to its readers, “Be not afraid – we won’t challenge your world.”

The brand name will survive, of course, even as the Times collapses back into a metropolitan New York paper that, to be sure, has legacy political clout nationwide and disproportionate impact on the national media’s vertical oligopoly. More parts of the ‘paper’ will migrate to cheaper environs on the Web. Whole sections, along with a proliferation of blogs and reader communities. Sometimes this interactive reader model is useful – primarily in material with a close connection to readers’ personal lives anyway, such as the personal health sections or John Tierney’s consumer-oriented Science Lab.

As touching political news stories, however, these interactions do little to increase factual content, and instead promote merely inter-reader emotional solidarity even as they present themselves as the online “debate.” Under the guise of open debate, they are in fact mostly production forums for confirmation bias, as Cass Sunstein pointed out as a general problem of online forums in Republic.com 2.0. Times reporters will be pressed to produce ever more words for these forums and moderate them – productivity starting to be measured by word counts and the variety of forums able to recycle the same limited factual content – at the expense of time actually to pursue expensive, off-line, value-added, new facts.

As this migration takes place, too, the economics of the paper will shift accordingly. From a revenue generation standpoint, the difference between the print paper and the online paper is not simply as a channel of distribution, it is a fundamental matter of what different advertising streams pay. Notes the Times’s media columnist David Carr, more than 90 percent of the newspaper industry’s revenue still “derives from the print product.” (NYT, October 28, 2008) A single newspaper ad in the printed newspaper might pay the newspaper “many thousands of dollars” – whereas the equivalent online ad might bring in a mere “$20 for each 1,000 customers who see it.”

(Continue to part 3/4.)

The NYT and the Information Theory of the Leisure Class, Part 3/4

2009-01-07T20:32:00.002-05:00

(Third part of a long essay posted here in four parts, on the New York Times and its business model, such as it is.)

Opinionification = commodification

So what? Well, this goes a long way to explaining the Judith Warner phenomenon at the Times. Warner is one of the new breed of online blogger-writers at the legacy media. John Podhoretz calls her America’s “most embarrassing online columnist,” purveyor of inanities we might charitably call mommy-feminism-lite. But reaching deep inside yourself to access your Warner-nature as a source of public authority, it turns out, requires little to no factual or reportorial effort; she is, therefore, in the Times’s new business model, remarkably productive. More productive, alas, than David Carr – because what she (re-)produces is group, indeed class, solidarity. The Times as though transformed into a string of middle-school mean-girl text-messages to Warner’s nationwide posse: a nearly flawless harbinger of what the economics of “$20 for each 1,000 customers” brings. Does the Times pay her? Why? The problem beyond Warner, however, is that “embarrassing” and “online columnist” are something of a redundancy (let’s be honest) even for a Web enthusiast like me who understands fully and celebrates how the Internet has managed partly to pry open the oligopoly of the MSM.

Facts are expensive; opinion cheap. And confirmation-bias-cocooning – cheapest of all. But newspapers made a fatal mistake deciding their competitive advantage lay somewhere other than facts. Facts not easily available, facts not already priced into the information stream. Once facts are out there enough to be part of the opinion stream, they have already been discounted to near zero and priced accordingly. No one will pay for them at that point. Developing new facts is expensive. If it weren’t, it wouldn’t likely add value in what is a surprisingly efficient information market – at least in that part of the information market in which people care about accuracy.

You do have to figure out what kinds of facts people will pay for, true. But you don’t remain profitable going after the least-value-added line of business available. And, worse, you don’t remain profitable trying to compete with people willing to do it for free in an environment of zero barriers to entry. Opinionification is commodification. And commodity pricing will not pay the rent in Manhattan.

Anyhow, the idea that newspapers would have a competitive advantage on the Internet merely in offering opinions was always complete madness. More precisely, it was always completely ego-driven madness. Do the “professionals” have an advantage in writing quality, and does the reading market actually value that edge? I understand the pain and wonderment of the newspaper reporter who, after toiling in mere facts for decades, finally ascends to a column on the opinion page; you have to believe that the opinion-columnist is a higher calling, or requires greater experience, expertise, skill, writing ability, something. Whereas facts, new facts, relevant new facts – those are premium priced, while even extremely skilled opinion writing is today, on the web, a mere commodity, priced as such. The sad truth is that the vaunted columnists of the Times and elsewhere are lucky to have ascended to their opinionating posts – because there are any number of writers as good as they, as prose stylists and thinkers, and experts too, who do it for free because, after all, their day job is … lawyer.

But at least the folks on the opinion page are on the opinion page. The issue is not the Times’s opinions, it is that the Times’s news pages assert its opinions as facts. And then (mirabile dictu) it seeks to price those opinions as facts. This is, in effect, the Times’s way out of the trap of commodity pricing: re-brand your apparently not-so-valuable commodity into a ‘luxury good’ and then sell it at a premium price. Talk about chutzpah.

This puts us squarely in the land of Thorstein Veblen. It puts us squarely in the land of The Theory of the Leisure Class. Conspicuous consumption, and the pricing of luxury and prestige goods as an exception to the usual rules of supply and demand. The Times’s core subscribers (which is to say, its core confirmation-bias readers) follow a Veblenesque “prestige goods” pricing model. They are thus – or so the Times must hope – more willing to pay higher prices for the Times’s opinions-asserted-as-facts, in no small part because having paid higher prices is a social signal that they must be … true. Or, if not true, then at least a sign of sophistication, sophisticated consumption which, after all, is more important than truth. Indeed, the more heavy-handed the cramdown of political opinion, the happier this readership is. It is ideological satisfaction that the Times must hope will somehow, some way, translate into greater reader loyalty and the willingness to pay above-market prices for mere opinion.

(Continue to part 4/4.)

The New York Times and the information theory of the leisure class, Part 4/4

2009-01-07T20:28:00.002-05:00

(This is the concluding section of a long essay I am posting online, “The Information Theory of the Leisure Class, or, Why I am Dropping My NYT Home Subscription.)

Price in the land of the leisure class, or, Veblen puts lipstick on a pig

Thus the ordinary connection between price and quality, supply and demand, evaporates, as with other ‘leisure class’ goods. Subscribing to the Times is like buying expensive, but not such high quality, chocolates in Paris, where you do it for the sake of making a gift back home in genuine Parisian wrapping paper, instead of merely buying a higher quality chocolate in Trader Joe’s for genuine gourmet value.

Hence dropping Times home delivery is, for my family and me, the way one minor individual subscriber re-establishes the connection of price to quality. I’ve decided against conspicuous consumption; I’ve decided to pay the actual value of the goods online, by going online. Pay, that is, exactly the value that the Times itself puts on it as factual information, rather than a prestige good. There is a substantial psychic cost to me in doing this, by the way – and not just to my New Yorker wife, losing the paper connection to home. I’m an academic – and as a conservative academic (heaven forfend), there is a genuine prestige benefit to flaunting my paid-for, pulp-paper, hard-copy, print edition of the New York Times at my university office and around, thus showing my colleagues that I am broad-minded enough to pay for the damn thing, something they wouldn’t bother to do and, anyway, they wouldn’t ever consider subscribing to the WSJ or the Washington Times, and as for the Weekly Standard, I doubt they’ve even heard of it. Losing that is a genuine cost in conspicuous academic consumption.

Yet the Times’s preferred path out of the wasteland of commodity pricing of its opinion and into the promised land of premium pricing that same opinion depends crucially upon being able to repackage its cheaply produced opinion pieces as facts, worthy of respect, and pricing, as such. If the mask of facticity falls, so finally does the price. It will eventually be reflected directly in fewer premium print subscriptions or indirectly as the lower price online advertisers are willing to pay or as some other loss of value. It will show up, somehow, some way.

Note that the contrast with the Wall Street Journal news pages could not be greater. The WSJ would pay a stiff price in readership for errors in business news, including ideologically driven ones. It is helped by its long-time strategy of wrapping, as the Economist once observed, a relatively opinion-free newspaper, well written but deliberately low-affect, around an ideologically-driven conservative magazine on the opinion pages. In that regard, unlike the Times, it has the best of both worlds. In this, it is helped by its policy of allowing the op-ed pages some amount of independent factual reporting, in the manner of a true magazine – which reduces the temptation to do it in the rest of the paper. In the WSJ’s news pages, especially the core business news, the quality of information drives its price, which is to say that it has so far eschewed the Times’s Veblenesque prestige pricing model. Murdoch could change this at the WSJ, but so far he has not.

And yet note, too, that in today’s financial crisis, the Times’s regular business reporters and writers have impressively risen to the occasion. Times editor Bill Keller was not wrong recently to boast about the Times’ Business pages’s superb reporting and explanations. What explains this sudden influx of factual quality? Well, when what’s at stake are not superfluous luxury goods, but the readers’ own money, facts suddenly matter once again, even to bankers (or ex-bankers) in Manhattan. Veblen is out, ordinary value for price back in, when it comes to the facts about money that matter to readers, not just attitude.

Even so, certain political topics, without which the financial crisis is incomprehensible, remain firmly in the cocoon, to be mentioned blandly and vaguely if at all, starting with Barney Frank, Christopher Dodd, Chuck Schumer, Barack Obama, and their relationships to Fannie Mae lobbying money, Friends of Angelo special mortgages, etc., etc. Apparently the Times has decided that never again – never, ever, ever, ever again – will it repeat the ideological ignominy of having pop up, ten years later, a precisely-worded news story such as Steven A. Holmes’s from 1999, embarrassingly putting the Times’s imprimatur on a devastatingly prescient, witheringly factual assessment of where Democratic Party politicization and cronyization of subprime mortgages and Fannie Mae would lead – and did.

Who will pay for reporting of facts? Who, indeed?

Which sadly puts in a somewhat different light what Carr says, correctly and ominously, that the difference between “print dollars and digital dimes – or sometimes pennies – is being taken out of the newsrooms that supply both.” Very true. It is also true that the blogosphere is not about developing new facts. It happens, but only very, very occasionally. The blogosphere is about (in Carr’s well-chosen word) annotating the mainstream media. But if that’s the case, why then has the Times decided to join the annotators, rather than making its stand (as Instapundit's Glenn Reynolds has urged legacy newspapers to do) on the value of the facts as such, and figuring out what and which and how and to whom to sell them? Carr skips over those questions and asks instead, regarding those peculiarly missing facts, who in the brave new world of Web economics will pay for the “phone calls that reporters have to make?”

Fair question – if it’s really about facts. But I received a phone call a few months ago from a Times reporter, one William Glaberson, who writes front page stories on Guantanamo, calling with a perfectly legitimate, although dry-hole, query about proposals for terrorism courts. Fine. What he actually said in the phone call, however, was, “So you would agree that …” – followed by a lengthy, convoluted paragraph of all sorts of “facts” and assertions that he had already worked out in his own head and intended for me to agree to, in his language, so that he could stick it in his obviously already preset narrative. But, sorry, that was as obviously dubious as it was his seemingly normal modus operandi. The phone call, which Carr wonders who will pay for, turns out, in the world of the Times, only-too-easily to be an exercise in confirmation bias, not the discovery of new facts. Not necessarily, of course – but if your pricing model skews toward Veblen-prestige goods pricing, you skew your information gathering away from the Very Great Reporter Gretchen Morgenson of the business pages and toward the not-so-great Magazine Opinion Writer William Glaberson, and finally you give it up altogether for the Online Nurse Judith Warner. So, if you ask me whether it matters that the Times has a way to pay for that phone call or, for that matter, pay Glaberson, the answer is no. The Republic will not fall if Glaberson has to make an honest living in advertising or Warner has to go back merely to raising her children without a national mouthpiece through her womb.

It would be nice if the world were as Carr implies it: the heroic Times struggles to do its fact collection against a bitter economic world that does not value “the facts” and is barely willing to pay for its valiant efforts. There is indeed a demand-side problem – if your target audience seeks confirmation bias first, and especially if you have nurtured them on that view of a newspaper, they will not be very willing to pay for “mere” facts. And so they are not. Yet the Times threw in the “fact” towel before the battle was even joined, saw the future and decided it was in opinion writing asserted as fact in order both to charge a higher price than a mere opinion magazine could charge and seek to satisfy, at least superficially, the fact-based raison d’etre of the daily newspaper. It looked at its ‘elite’ readership and concluded that, at bottom, those readers were not very interested in facts, much less in paying for them. Instead they wanted high falutin’, high-gravitas chat based around politics. And so the Times has proceeded to offer it.

As a business model – not politics – I’m skeptical this can work on a daily basis. There are reasons why magazines appear weekly or monthly, not daily. As politics – well, the Times’s relentless cramdown of skewed, confirmation bias opinions-as-facts this election cycle represents one of two things. The cramdown might so annoy that segment of its readership that still cares about facts on the traditional basis of them being, well, true that it recalculates price in relation to facticity and drops the paper subscription, crippling the business model even further. In that case, I sincerely hope that the Times’s and its employees think the political self-satisfaction was worth it. Or, alternatively, the cramdown might handsomely pay off in cementing the emotional bond ever more closely with the core subscribing, offline readership and allow it to raise the price, directly and indirectly, to a smaller, wealthier, more devoted leisure class audience. But is there really room for a daily New Yorker?

VII

I’d pay good money for a grey, affectless, fact-driven newspaper that’s

not a magazine and not an online cocoon – would you?

Which means, in the end, that my family and I are (until tomorrow, that is) subsidizing through our annual print subscription, at $600 post tax dollars, a publication that the Times itself is already moving to discount to the content quality of an online publication sustained by zero online subscription costs and the pennies of digital advertising. It is also true that the Times’s online ‘look’ is magnificent – it has invested heavily in recreating as close as anyone has come to the genuine look and feel of the print edition, and with many hyperlink advantages. It is much more like a newspaper than the online WSJ site; WSJ.com makes money from subscribers, but that’s precisely because its web presence is not as a newspaper but as an indispensible research tool for the business world. It is systematically organized, and it feels like what it is – a highly organized database. The Times’s site, by contrast, feels like the newspaper – a place to browse.

This is to say, however, that the Times online is a wonderfully successful, fabulously designed … website. If the economics of moving online were merely about the form of delivery, none of this would be particularly momentous; win-win for newspaper and subscribers, cheaper cost of distribution for producers and, for increasing numbers of consumers, more convenient form of delivery. But it’s not. It’s about advertising revenues, subscription revenues, and what the economics of no-subscription revenues (zero) plus online advertising streams (pennies) will support in the way of content. Which came first – the chicken of opinionification or the egg of the loss of paying readers like me, not willing to pay for mere opinion? Who knows. But my family is leaving the Veblen-world of conspicuous consumption of the hard copy Times. It’s time for us to treat ourselves the way the Times so clearly sees us – as readers of the online edition for free. It’s a future, I regret to report, in which the Judith Warners, not the David Carr’s, are the opinion divas, and in which facts, to the extent they are still gathered, are carefully marshaled in support of predetermined emotional conclusions that bolster the biases of the online audience.

Whether the world would support a paper, online or on paper, devoted to entirely affectless statements of fact, sustained only on the basis that this is the news, I do not know. I wish someone would try. Let’s try a daily paper defined by its greyness, sustained by its lack of emotional content, nurtured by its utter indifference to sensibility over sense. Today’s Times regards itself as a magazine of upper bourgeois elite sentiment and sensibility, increasingly fact-lite, and destined to live under the economics of the Web. The Times thinks even less of its readers, curiously, than I do. But given that it has discounted the content, I may as well discount the price.

END

Kenneth Anderson is a law professor at Washington College of Law, American University, Washington DC. (This article was written in November 2008, published in abbreviated form by Pajamas Media in November online; I have updated it and altered it somewhat as of January 2009.)

Joe Nocera's outstanding NYT magazine article on financial risk

2009-01-04T16:47:00.000-05:00

Kudos to Joe Nocera for his splendid NYT magazine article, January 4, 2009, “Risk: What Led to the Financial Meltdown.” (Note that it begins with a quote from Peter Bernstein’s also splendid 1990s book, Against the Gods, which I reviewed for the TLS back when the book first appeared.)

Happy New Year!

2009-01-03T17:06:00.000-05:00

The Christmas tree has just gone down, thanks mostly to my wife and very little thanks to me. And, a little late, here’s to 2009 being a very good year.

Merry Christmas and Happy Holidays to All

2008-12-25T14:27:00.000-05:00

The Proprietor of This Blog takes the opportunity of wishing everyone a Merry Christmas or, in the alternative, Happy Holidays and Best Wishes in the Year.

(Mostly you can find me over at Opinio Juris, but I occasionally put up stuff here that is unrelated to OJ or written stuff that is too long for an OJ post.)

We have finished opening gifts here at our house - JM and I drove to Chapel Hill, NC on Tuesday and picked up JM’s parents from their retirement community to spend xmas with us here in DC. It was a long drive, especially there and back again in one day, but it was nice to have some time with JM in the car, no other distractions. The plan was to reduce the Christmas materialism and gifts and all that in keeping with a recession year, and although I think we did that in dollar terms pretty well (and also that things were very Practical and Utilitarian rather than Frivolous and Fripper), it still looked like an awful lot of Materialism, spread out as packages on the floor.

Did the Kid learn any lessons in frugality this year? She heard her mother and me express so many concerns about the importance of being frugal this year that, she said, she came to regret every time the mail person brought another Amazon package - it made her feel guilty. This does not strike me as a good thing - ideally one learns to take a certain pride in being frugal, rather than guilty for not.

But I managed to go the entire season with one brief and mostly unnecessary trip to the mall, because I bought everything on Amazon or ... Ebay. I learned to use Ebay, and did extremely well with it this season. It seems that there is a vast amount of overstock out there - presumably supply will drop this upcoming year to meet reduced demand, but at the moment, at least in things like apparel, the left over supply from the last year or two amounted to excellent bargains.

I also proposed to the Kid that money that would have been spent on apparel for her could be exchanged for money in her brand-new, baby sitting funded brokerage account on etrade. In effect, I said, would you rather own the Abercrombie skirt or the equivalent Abercrombie shares, with a little multiplier supplied by Daddy as extra incentive? (Tradeoffs, tradeoffs, as Greg Mankiw points out here.) Wife and Kid both said that this was the wrong time and place for Such Tradeoffs, even with a Subsidy from Santa, and that these should be separate discussions and arrangements. One should not barter with Santa Claus.

The Kid, to her credit, has set up her checking account with an automatic monthly payment to several charities of her choice - not a lot, but it adds up over time, both for her and for the charities, and the transaction costs are very low - in this case USO and a charity that does cleft palate surgeries in poor countries. She recited last night after Mass the King James Version of the Nativity, not the literarily horrible one in the modern Bibles, “And there were in the same country shepherds abiding in the field, keeping watch over their flock by night...” She learned it when she was three or four years old, back in the days when she was made to memorize verses from the Bible. (Actually, she still remembered a bunch of them, including “How beautiful upon the mountains,” from Isaiah.)

Possibly we’ll keep her.

For my part, I forewent the new Apple laptop I really wanted. Hooray for me. But Santa brought me something that was expensive, hard to find, out of production, and very valuable to me personally - a DVD of the film version of Nineteen Eighty-Four, the version that appeared in 1984. And a whole bunch of books. And reading glasses ... I have concluded that the Time Has Come for reading glasses, the 1.25 version. I’ve never worn glasses of any kind before, so this is a kind of big deal.

Law professor dress

2008-12-10T13:11:00.000-05:00

(I’m cross posting this from its original home at Opinio Juris. I apologize to my colleagues there for taking up blog space with trivial stuff ...!)

***
Classes have ended, exams just begun, and I’m feeling into the pedagogy of international law teaching and intellectually shallow, all at the same time … so, further to Professor Erik Jensen’s widely read (1748 SSRN downloads, which sure beats me), if not followed (abstract, in full: ”Law professors dress scruffily, and we need to do something about that”), admonition to better classroom dress by law professors, and further to my dean’s remarkably non-judgmental observation, some ten years ago (I’m slow to respond, as some editors have noticed over the years), that I had “single-handedly lowered dress standards” at our school, I embarked this term on wearing not just jacket and tie, but suit and tie, to each and every class. As an experiment, to see if a 52 year old bald and paunchy law professor would get Great(er) Respect by looking professional for class. Large classes - IBT with almost 90 students and Corporate Finance with 75.

Well, not every single class; my car didn’t start one day and I showed up in jeans and a t-shirt. But every other day. I asked the students straight out, allowing them to post anonymously to Blackboard, whether my formal dressing had any impact, positive or negative, on how they viewed me, the class, the Respect and General High Esteem - Reverence, even - with which they held me and Every Word I uttered, etc., etc.

One young woman told me it impressed her because it was more than how law professors normally dressed (maybe jacket and maybe tie for men, maybe not, approximate equivalent for women although, she added, the women professors dressed far better than the men, pretty much always). She was impressed with me because I scored better on a relative scale - she candidly said that if most or all male law professors wore a suit, she wouldn’t care, because it would turn into a genuine professional uniform.

Special case, though: she had also worked in fashion in NYC before law school and had a series of, I’m sure, helpfully intended remarks on how my suits were all decades out of date. Her best advice, though, was to go to Ebay and get super-expensive second hand suits from unemployed bankers and lawyers - which, having just surfed around Ebay, is great advice. (But then she added, “and some of them might have been your former students.” Hmm. How should I feel about that? Vulturous? Reverse-oedipal? What’s the right word? I’m sure Freud has a term, but we’re all Evolutionary Psychologists now, and what is the EP characterization of this?)

Other than that one student (who will go far in her career, I predict), however, all other students overwhelmingly indicated it made no difference to them how I dressed. Period. But should I believe them? Does it matter - but they don’t realize it unless I show up looking scruffy and slobbish every day? Are they victims of self-deception and shining examples of Behavioral Economics?

There. I have just successfully channeled Ann Althouse: this is a perfect Althouse culture post! Which is to say, it doesn’t really belong here on OJ, but I am genuinely curious how law teachers approach the dress issue.

IBT Fall 2008 Final Exam

2008-12-10T09:33:00.000-05:00

In case anyone is interested, here is the text of my Fall 2008 final exam in International Business Transactions. I don’t think this was my greatest exam drafting exercise - I’ve done better in past years. This one is a little bit too much - well, a lot too much - stuffing issues in willy-nilly, without having pulled it together as a clever thing based around a discrete set of parties. This is done as a take home in which students have the full two weeks of exam period to do it, but a page limit of ten double spaced pages.

My IBT class is purely transactional - it moves briefly through a series of transactions ranging from cross border sale of goods to cross border services to cross border payment mechanisms such as LC to debt financing of these transactions to project finance to ... finally, joint venture and then exit strategy. All private transactions - no public capital markets, also nothing related to international trade as such, which is unusual for IBT courses even now. We use Vagts’s book, supplemented greatly by a series of photocopied contracts from my own work in international business transactions over the years. The final is usually based around something related to my pro bono practice that year with a nonprofit private equity fund that invests in independent media worldwide; this year I instead went back to a problem in housing finance involving a South African housing agency, a problem dating back to work I was involved in during the 1990s for a while.

***

Facts - Fall 2008 Anderson IBT Final Take-home Exam

(These facts are all made up. Not true! Libelous, probably!)

You are both general counsel and financial advisor to GoodWell, a financial consulting firm based in Washington DC that offers advice and financial planning, as well as a lot of deal consulting and brokering, for wealthy individuals, philanthropies, corporations and especially corporate charitable foundations, private equity firms and hedge funds that are looking to do transactions in the developing world. Typically these transactions involve a combination of for-profit motives on the part of some parties and non-profit charitable motives on the part of other parties – and sometimes both kinds of motives in the same party. Your business model as a consultancy is based around the concept of “Doing Good and Doing Well.” Although you privately have some questions about whether it is possible to combine those in the same deal, especially after looking at what happened to Fannie Mae, your business consists of brokering transactions and advising on them in both a business and legal capacity. GoodWell is a small firm and everyone on the staff has to play combined roles – hence your role involves both the general counsel as well as financial advising/financial structuring functions.

During the previous 18 months before the global market crash got seriously underway, GoodWell had been working closely with multiple parties, in the United States, in Western Europe, and in South Africa to close a deal in South Africa addressing housing in the Soweto townships. The parties involved in negotiations include developed world charitable foundations, for profit corporations, banks, and, in South Africa, the SA government, as well as government chartered but technically private housing agency called Nurcha that will act as the primary agency for doing the whole transaction. The aim of these negotiations is to produce some set of transactions that would fund the building of basic housing in the townships – on a very basic level: a concrete foundation on which the owners would gradually build their own dwelling as they could afford it, but most importantly water, sewage, and electrical connections.

The ultimate aim of these transactions is to produce, when all is said and done, this basic housing structure for local Soweto residents that they own and pay for over a twenty year period through a basic mortgage. The goal is 200,000 housing units and the associated utility services over a five year period. Working backwards from that goal, however, there are many intermediate goals that must be met. The main recipient of funds – donated funds as well as the primary borrower on loans – will be Nurcha, acting as a private entity organized as a not for profit corporation in SA.

The housing work must be performed by local contractors – Soweto has a well established local contractor, SA Builders, that can both perform the work and also subcontract and supervise three other smaller contractors. They are excited, of course, about the possibility of at least five years worth of work, but they also have concerns about whether the promised financing will really be there over the five year period to pay them – they have had experience with foreign development groups before that promised programs of a certain number of years that bailed out midway through. Nurcha and the SA government agencies, for their part, have certain concerns about quality of materials such as cement and piping and the quality of the construction services to be provided – they have had experience with local contractors not performing in the townships to the same standard expected in more developed parts of SA.

The biggest construction issue, however, is the sewage utility – electricity and potable water are not really a problem, just a matter of building several lines to hook to the main grid. But sewage will require a very considerable infrastructure project to create – all the way from building the treatment plants and water recycling plants to main sewage lines to residential connections in a crowded urban environment. The public health benefits are enormous – but realistically it will take five years to do this whole project, at a projected cost, just for the sewage project, of US $500 million. The SA government and the housing agency Nurcha anticipate that the project will eventually pay for itself out of sewage user fees charged as a portion of the long term mortgage costs, and in fact the historical repayment rate of mortgages in Soweto has been quite good – but no one is quite sure whether the repayments on the mortgages will take place as planned and whether, therefore, the revenues to pay for the sewage project will eventually be paid. This has left questions in the minds of banks and investment funds inside and outside SA which are being asked to finance the project as to the longterm stability of the financing for the sewage infrastructure.

The total costs of the whole program, including all housing costs, utility costs, the sewage project, administrative costs, and so on, is anticipated to be US $2 billion over a 8 year period. Not all the money is needed at once, of course – draw-downs are believed to be required on average of 250 million each year, although of course the particular needs and spending issues will vary greatly from year to year.

Although ultimately all of this is to be paid for out of the mortgage payments collected from the Soweto owners over a long period of time, the multiple construction projects will have to be financed somehow by parties inside or outside SA up-front. GoodWell has acted as advisor to Nurcha and, to some extent, broker in putting together possible international financing, both for profit firms and nonprofit charities, as funding sources for the multiple projects. The two main wealthy-world parties interested in seeing the Soweto project go forward are the Anderson Foundation, a charitable foundation based in New York, and the Swatch Watch Corporation, which has sizable manufacturing facilities in many places around the world but not SA, but which is considering investment in SA.

The Anderson Foundation is willing to donate US $50 million each year for eight years provided that one for one matching funds are provided other donors. The World Bank has agreed to provide US $50 million each year for eight years as a matching grant. The EU and US AID have agreed to provide an additional US $50 million annually. However, none of these parties is willing to act alone – no one wants to contribute money to a project that doesn’t get funded sufficiently to carry it to completion – and so there is a collective action problem in which these parties are willing to act provided that each knows that the others are on board, but not otherwise.

That leaves US $100 million unfunded annually, provided that the estimates of draw-downs are correct as an approximation.

The unfunded US $100 million annually – about $800 million total over the eight years – can possibly be covered by borrowing from banks. The difficulty is that the banks want collateral or guarantees – and they want them not just for the eight years of the construction project, but for the twenty years that the money will be in the process of being repaid on the mortgages. The government of SA has offered to provide twenty year guarantees for half of that amount, US $800 million, but the banks are nervous about such guarantees.

With the worldwide banking and credit crisis, however, the issue of worry about future performance is not simply banks that extend loans worrying about getting repaid by borrowers – the borrowers who have received commitments from the banks are also concerned that the banks will make the loans down the road that they have committed themselves to make. Nurcha, your client, is particularly concerned about what kinds of contractual language might be written into the documents to protect (weirdly enough) the borrower, given the credit crunch that might extend over years, precisely when the money is most needed to complete the project.

The Swatch Watch Corporation has offered assistance of a different kind. Concerned about the ability of home owners to be able to repay their loans, it has offered to set up a local manufacturing plant near Soweto that would employ several hundred local employees and so contribute to the local economy; the hope is that if this plant is successful, it will draw other multinational manufacturers to set up in an industrial park for light manufacturing and electronics and textile assembly in Soweto. The SA government is willing to offer tax holidays for a ten year period to companies willing to come. But Swatch must make it work successfully, and it is concerned about the quality of products assembled in the proposed factory.

You are general counsel and financial advisor to GoodWell. Nurcha, in SA, has retained you to assist in putting together an overall strategy and set of transactions for the deal as a whole. You must write a memo to the CEO of Nurcha (the government-sponsored but private housing firm in SA) setting out your proposed transaction, the legal documentation for it, and particular financial or legal issues that are of particular importance and your solution to those problems. Please write that memo.

END

Good luck and happy holidays!

City and Urban; Siege and Urban War; Financial Modeling versus Scientific Modeling

2008-12-08T19:44:00.000-05:00

My second post for the Complex Terrain Lab symposium on Antoine Bousquet, The Scientific Way of War.

I want to offer four very different thoughts - they are not so much things from the book itself as tangents that the book caused me to think about, and I share them on that basis. Dr. Bousquet should not feel obliged to figure out some way to respond to them; they really are more tangents.

1. City and urban (1). The renderings of the city and urban landscapes of conflict and war offer a certain geography of spaces, walls, barriers, confusion, hiding, chaos, complexity, disorganization, friction - but a tangible and less tangible sense of space. Law and ethics, the rules of war that I study, seek to create a certain order out of the chaos, and impose senses of limits and to invent walls, barriers, and define spaces within the chaos through normativity. These are targets; these are not targets. But the creation of this normed space requires a shared norm, and the nature of the urban warscapes that Dr. Bousquet describes is not one of shared norms. There is no sense of reciprocity in the norms, and given that the organized side, the sovereign side, has decided affirmatively not to use reprisal to enforce reciprocity, that concept is fundamentally gone. It seems to me to account for a great deal of the chaos on today’s urban battlefield. What, for example, the human rights monitors propose instead as the basis for normativity is the post hoc international tribunal - but it assumes the hegemony of the norm giver, and that is far from given.

2. City and urban (2). City and urban warfare was traditionally about siege. It was traditionally about bringing down the walls of Jericho. The chaos in that operation came at the very end, in the final sack of the city. It was not traditionally about the fighting in the city as the fighting space, except at the end; otherwise it was, if anything, a less chaotic and more tightly organized battlespace on both sides. The final sack was authorized, according to the traditional rules, more or less as a reprisal against the city for its failure to surrender and, in any case, the whole of siege warfare, and the special rules applicable to siege, represented a complete reversal of the traditional notions of combatants and noncombatants. But it is also one of the oldest forms of warfare, from the moment when war took on the characteristic of the raiders against the citadel, and urban living as a form of protection. Siege of course was one of the great historical drivers of technology in war; and in that sense, the city arose as a form of defensive technology in war that happens to function in times of peace.

3. Financial modeling. Several of the commentators have inquired why the reach to the physical sciences and physics in particular as the historical model, rather than, say, biology. My day job, as it happens, is finance professor, and at risk of partisanship to my areas, I wondered whether the complexity theory, chaos theory, and network theories might not be modeled as well on the process of financial modelng - complex risk systems and network and gaming theories. But what I am actually suggesting here is not the theories themselves - but the fact that historically they have failed over and over again, being intimately intertwined with all the major market crises of the last few decades since computerization - the 1987 program trading crash (computer driven selling created a positve feedback cycle downwards since each company’s program worked on the assumption that it was alone); the 1998 Long Term Capital Management crisis (even though anyone who dealt with Russia would have said that political risk was paramount, it was treated as outside the model for financial purposes); and today’s crisis involving quant strategies (that assume that the model’s financial equivalents are in fact legal and contractual equivalents, whereas in crisis mode a whole series of non-normal contract provisions kick in but are not accounted for in the model, eg, mark to market accounting in a thin or nonexistent market). The failures in financial modeling might point to ways of understanding chaos in war and vice versa.

4. Ghost in the machine. Two books come to mind reading Dr. Bousquet’s book, Junger’s chilling On Pain, out with a new translation and penetrating introduction from my long-time friends at Telos. And Daniel Pick, The Rationalisation of Slaughter. Each of these goes deep into the disciplinary aesthetic of modern war, I think.

Strategy and Tactics; Soldiers and Warriors; Warriors and Tenders of Machines; Capital and Labor Intensive Warfare

2008-12-08T19:38:00.001-05:00

From my second post at Complex Terrain Lab, commenting (loosely) on Antoine Bousquet’s, The Scientific Way of War:

The comments have raised the question as to the actual disposition of military thinking, actual thinking among the officer corps today: to what extent does it in fact exhibit the scientific world view as developed in Dr. Bousquet's book? I have two responses, at least with respect to US military officers and their thinking, among whom I spend a fair amount of time. Take it for what it's worth; this is all just my anecdotal sense of US military officers and their thinking.

First, my sense of the US officer corps is that it has a deliberately inculcated duality that mirrors some of the dualities in this discussion. It is, on the one hand, a cultivated self-image as "warriors." It has been an evolution beyond self-identification as "soldiers," and on the handful of occasions where I have asked what the difference is supposed to be, what I've been told is that - to the extent it signals a difference - soldier identifies an important set of virtues and duties, based around honor and obedience and discipline within an ordered structure. The concept of warrior is intended to include those, but to go beyond them to suggest a broader sense of "self-starting," entrepreneurial - very much the sense that is associated with the "captains' war" in Iraq - a great deal of responsibility and initiative devolved upon the junior officers and below. There was a sense that the sole virtue of being a soldier was simply standing around waiting for orders, rather than figuring out what needed to be done and doing it.

I don't know how extensive that understanding is but that's how I've had it explained to me. Obviously there is a certain amount of tension between that entrepreneurial understanding of being a warrior and conforming to the discipline that comes from the top down - and, interestingly, and possibly simply because I'm a lawyer, I've had it suggested to me that the thing resolving the tension between those is an overall obligation of everyone top down, bottom up, to conform to a set of legal rules and obligations that override everything else. The idea being that the tension is resolved in a sort of universal law that, regardless of one's place in the hierarchy, oone must conform to and obey. That special notion of law – not simply a command backed by a threat, but something legitimately accepted by all the 'warriors' - in turn ties warriors to law, and law to honor, and honor to a professional and personal identity. This was one lunchtime conversation; how widely shared any of that is, I don't know. Although clearly someone has thought hard about why to use so extensively the language of warrior rather than merely soldier.

On the other hand, the warrior-soldiers also have enormous faith in the power of technology. They believe deeply in capital intensive war, even while thinking of themselves as warriors. It feels in spirit less like the idea of the soldier as technician tending to the infernal machines in a kind of neutral way, and much, much more like the sense of gamers whose gaming technologies have been made real – they can act as individuals with great powers in their hands. So when I say faith in technology, I mean technology as a way of magnifying personal projection of power as much as anything else. Obviously that is not especially so when one considers air power, sea power, all of these standoff technologies in which one really is a technician tending the machines. But even the development of robotics that Charli Carpenter and I have discussed some at CTLab - even the Predator - involves a sense of individual projection of power, a hand at the controls even if one is not present. Or the battlefield robotic vehicle guided by the hand with the joystick, who is a soldier directly in the field, on that same battlefield. It is a sense much closer to that of the gamer for whom technology is very personal rather than the impersonal machines of high modernism. Much of it, in other words, is technology in the service of the warrior, not technology that merely converts soldier to minder of machines.

In conversations I've had with, as it happens, wounded soldiers, their descriptions of what combat should be like is that it should be upclose, because that is how, at least in today's environment, you make it discriminating. There is no desire for or sympathy with the soldiers of the Great War or the Second World War, cannon fodder in the true sense. Their self-sense is that of commandos, never a mass as such. And fighting in the urban setting, as one recuperating (he was going to be fine) junior officer told me, requires that one fight house to house because otherwise you could never root out the enemy while sparing the innocent. He thought of it as a bit like police work, which I thought was a big stretch, but I did understand his sense that it had to be close in to make it discriminating. At some point, technology will reverse that, I imagine - robotics might well alter the way in which urban fighting is made discriminating, by detection technologies that allow much more standoff fighting with greater precision.

Second, however, in speaking with US officers at a more senior level, as well as civilian and military planners, I would say that the movement intellectually is not especially toward the "scientific" world view - that feels actually a little passe. Of course it is scientific, in the sense of applied science to bring on better technology. What is newer and more cutting edge is the growth of world view of cost-benefit analysis. This might seem odd to say - after all, when has war fighting not been about cost benefit analysis at some level? But I mean by this the application - and more profoundly the intellectual mind set - of opportunity cost, discounted probability theory, the whole array of tools taken from contemporary risk analysis in finance and the social sciences. The approach reminds me more than anything of Cass Sunstein, in something like Worst Case Scenarios, applied to military thinking. The language of present value, discounting and a whole range of metaphors drawn from modern financial theory.

In one sense, it has always been there. How could military thinking not be about cost benefit analysis - when it has always been built around military necessity? But there are differences and, peculiarly, one of the differences seems to me something that drops out - something that has always been better articulated in military ways of thought than anywhere else, but which tends to drop out in the new social-sciencey thinking. That is - don't look so surprised, please! – the distinction between strategy and tactics. But you can see the problem. If you are adopting wholesale the language, analytics, metaphors of game theory, especially - well, game theory doesn't really have a distinction as such between strategy and tactics. It is not a feature of games as such; it is a way of playing certain games. Philip Bobbitt discusses this somewhat in his Terror and Consent; I discuss it in passing in a TLS review of that book. The difficulty of letting go of the strategy-tactics distinction is that you are reduced to discounted probability analysis and opportunity cost analysis of what quickly - not necessarily inevitably, but certainly a tendency - reduces to dealing with risks on a seriatim basis, "event-specific catastrophism," I think I called it in my Bobbitt review. That's essentially what happens in Worst Case Scenarios, and it forms the basis for much of the "sophisticated" critique of the war on terror; proper discounting of risk, it says, will tell you that we are overinvested in trying to prevent terrorism.

But if you try that as a general case, you won't have much of a basis for strategy in that or any other instance, because strategy seeks to move above the "seriatim risk" analysis. Especially there will be no room to consider gambits. Gambits, after all, by definition go outside the serial risk scenarios; that is the point. In that sense - not intended this way, but it arguably has emerged this way – the Iraq war turned out post hoc to be a strategic gambit that invited a loose affiliation of Islamist jihadists to make their stand in Iraq. They took the (unintended) gambit, thinking they would win, which they might have, but it does not seem to be playing out that way. Whether you think that analysis correct or not is not actually my point. It is, rather, that it is a whole way of thinking that doesn't have purchase within the new social science of risk and game theory, any more than particular strategies in chess are foundational to general game theory. And yet the actual fighting of wars is far more like playing a game of chess (or any other particular game) than it is thinking through the abstract categories common to all games. And the general theory of risk analysis, precisely because it applies to, well, everything - discount the probabilities and compare courses of action – is of far more limited assistance in actually playing an actual game of war than it might appear.

So I find it puzzling, and a little alarming, that there seems to be a fashion these days within the US military, at least among some of the intellectuals and planners who keep a finger on the pulse of larger intellectual movements, to adopt forms of thinking that seem to me to give up, without good reason, some of the most original contributions of military thinking to general intellectual thought.

Comments on Bosquet and Clausewitz at Complex Terrain Lab

2008-12-05T22:00:00.000-05:00

I’m guest blogging at Complex Terrain Lab over the weekend in a symposium on Antoine Bosquet’s The Scientific Way of War. I just put up something about Clausewitz and friction, and noting the relationship to LIncoln and the Second Inaugural Address. It’s a terrifically fun symposium, check it out. Here’s what I posted:

My congratulations to Dr. Bousquet for a highly insightful and readable book that engaged me with a historically shifting body of metaphors for war and conflict. I want to focus briefly on one subchapter, the end of chapter three, devoted to Clausewitz and the metaphors of thermodynamics. I was much taken, and am generally strongly in agreement with, both your intellectual history of Clausewitz's thought and its rootedness in a certain scientific world view as well as your reading of the famous "friction" metaphor. I wonder if the the friction metaphor might not be broken out still further, in four ways.

First, the famous Clausewitzian undermining of the army-as-clockwork mechanism, undermined by the friction of the clash of two armies. Second, the concept of friction as expressed in the technologies of thermodynamic weapons and war - explosions and counter-explosions. Third, Clausewitz's also famous dictum of friction as created by the accumulation of errors in the system of war, located in failures of communication, delivery, and execution that accumulate, again to undermine the army-as-clock from within.

Fourth, what I suppose we might call the friction created by the 'ghost in the machine of war': friction that arises not from a clash of two armies, nor from errors internally accumulating, nor from explosions meeting explosions, but instead from the clash of two fundamentally different conceptions of conflict, the inherent clash between, on the one hand, the mechanism that enables a vast array of people and things to act with a single will, deterministic and mechanistic and, on the other, the animal passions that are both unleashed but relied upon particularly in battle. It is not precisely that the mechanism tames the beast; it is, rather, a dialectic in which the machine needs the animal spirits and the animal spirits need the discipline of the machine.

Anyway, for what it's worth, it seems to me that those are all separable as readings of 'friction' in Clausewitz and beyond, and that some parts of those distinctions are picked up later in your discussion.

But I was also struck by your reading of Clausewitz in this way - correctly focused on friction as the central concept rather than the 'other means' trope - in part because of work currently on my own desk on a reading of the moral psychology of Lincoln's Second Inaugural. One or two phrases in that address express a profoundly Clausewitzian sentiment: "Neither party expected for the war the magnitude or the duration which it has already attained. Neither anticipated that the cause of the conflict might cease with or even before the conflict itself should cease. Each looked for an easier triumph , and a result less fundamental and astounding."

This passage is sometimes read as a sort of Clausewitzian sentiment about war as politics by other means. I have not thought that the best reading, and your chapter in this regard gives me stronger reasons for thinking so: it seems more emphatically, on the contrary, an expression that war, as its own social life, and driven by its own frictional forces, frictional forces that are internal to war itself, can independently lead politics rather than necessarily the other way around.

The paucity of forced consolidation mechanisms in the nonprofit sector

2008-11-29T20:05:00.000-05:00

As a longtime nonprofits lawyer, I have long been struck by the asymmetry between the not for profit sector and the for profit sector in the matter of takeover mechanisms. Essentially, the not for profit sector lacks any true mechanism for a hostile takeover - because it has no share ownership structure that is legally separate from the board and management of the enterprise, such that an outside acquirer could obtain control from the share owners against the wishes of the organization’s board and management.

I say ‘paucity’ rather than absolute lack of consolidation mechanisms for two reasons. One is that in the case of non profits that are about selling services for fees and income, albeit with a charitable purpose, such as a nonprofit hospital, there are indeed mechanisms at work that can force a board and management to have to merge, consolidate or otherwise be acquired. Moreover - and this is one of those mechanisms - it is possible that an organization can default and go into insolvency, which can also force a takeover of sorts. However, there are important issues in that case as to the disposition of charitable assets - one reason why lenders to nonprofits are typically careful to insist on precisely described secured assets, the seizure of which will not create issues of public policy or diversion of charitable assets. And in any case, if the reason a charitable organization has to seek consolidation or some other exit is on account of default or insolvency, the interests that are at stake are not the disposition of charitable assets as such, but the interests of creditors as such.

What I mean here, rather, is a mechanism by which a nonprofit organization can undertake a takeover, and in particular a hostile or unsought takeover, of another nonprofit. Not as a matter of insolvency acting as creditors, but for the specific social efficiency of having a mechanism (equivalent to the ability of outsiders to purchase stock ownership and hence control, without the permission of management and the board) by which nonprofit assets can flow into the most efficient hands and efficient uses. There is a nonprofit capital market of sorts; there is, however, no market for nonprofit corporate control.

Is this an inefficiency? An inefficiency in the sense that we would say would be the case if there were no market for corporate control in the for profit sector? A good question, in both a conceptual and empirical sense. I’ll leave that for now.

In a sense, true, there is a market for control in the nonprofit world in the sense that the upstream funders of nonprofits - the private foundations, the philanthropists, perhaps even the public - can refuse to fund and so put pressure on a nonprofit to merge or otherwise join with some other organization, or to reorganize to get rid of existing management and even the board. But I do not think this is the same thing as a market in control.

However, one effect of the asymmetry between the nonprofit and for profit world with respect to take over mechanisms is that there is a further asymmetry between mechanisms of consolidation and mechanisms of devolution in the nonprofit world: it is far easier, especially in world that consists almost entirely of human capital, for any player to set up a new organization. You can’t (very easily, anyway) force organizations to consolidate, but it is easy for them to splinter and create a raft of smaller, independent organizations. To the extent that there is a check on it, the check comes from the willingness or unwillingness of the upstream funding organizations to fund or not fund.

It might be that this asymmetry is efficient in the nonprofit world, in which human capital is everything and it is often hard to imagine that a fundamentally forced consolidation could work very well - maybe the good people leave and the bad people stay. But I’m doubtful this is any different from the for profit world.

Deleting some now irrelevant entries, and anyway I'm blogging at Opinio Juris mostly now

2008-11-19T20:26:00.000-05:00

I think I’m going to delete some entries that are not so relevant today - conference announcements, but also some election related posts that bore me today. It’s like yesterday’s newspaper. So some stuff is going to disappear, and I don’t think anyone will miss it, least of all me.

In any case, I am mostly blogging over at Opinio Juris these days.

Pirates off the coast of Somalia

2008-11-18T22:42:00.000-05:00

I posted a note up at Opinio Juris - where I do nearly all my blogging these days - about Somali pirates and how the Obama administration might make it a useful situation in which to discover a happy confluence among the use of force, international law, multilateral interests, and the traditional US interest in the lawful freedom of the high seas. There’s something about pirates that excites the imaginations of the blogosphere, and it attracted considerable attention, despite being very tentative. But it has made me think it might be fun to write a little article about Somali pirates and legal and international policy. Hmm. Hmm. Hmm .... But I should add that my Opinio Juris post was intended to raise questions, not answer them - I am not by any stretch of the imagination expert in naval operations or the law of naval operations, military or law enforcement or otherwise. A number of blog reactions have cited me as though I were advocating what my friend had said, and I’m not; or that I have expressed views on what the actual law is, and I’m not. I might one of these days, but not today.

Thanks to Glenn Reynolds for the happy birthday to my Kid

2008-11-17T09:04:00.000-05:00

Glenn ran a happy birthday note for my kid’s 16th birthday last night - she had asked, to my surprise, for a junior membership in the ... NRA. I included a photo - carefully chosen so it showed her shooting but not her face - from a few years ago, and Glenn was kind enough to stick that up too. Kid’s reaction was, “This is the greatest birthday!” Thanks Glenn.

And note, Glenn’s average per day is over 300,000 visitors, and this morning by 9 am, already 60,000 people. So if you’re just looking for 15 minutes of fame - as in birthday greetings - this is impressive. My Kid was sure impressed.

Requiem for my New York Times home subscription

2008-11-16T17:10:00.000-05:00

Well, all thanks to Pajamas Media for publishing my little op-ed, A Requiem for the My New York Times Home Delivery. And thanks, too, to Glenn for the Instalanche - and welcome to anyone who is coming over from PJM. You probably see not much activity here. True. For various reasons, I’ve been blogging less and when I do, it is almost exclusively over at the international law blog Opinio Juris.

However, I did want to note something about the New York Times piece. To judge by the comments, PJM readers believe it is about the politics of the Times. It is - but mostly it isn’t.

I don't mind partisanship in a magazine. I am even willing to read partisanship of the "who you going to believe, the NYT front page or your lyin' eyes" kind because I want to know what is said across the spectrum; subsidizing it as such doesn’t especially disturb me.

I'm even willing to read a paper that has decided it's business model of the future is Judith Warner, so long as I don’t have to spend more than nanoseconds on her. But I'll only do it for free. I won't pay 50 dollars a month for it, because I don't think the Times values the content at that price, at least not discounted into the future.

What am I doing with the 50 bucks a month? I’m contributing it to my teen Kid’s Sharebuilder stock account - she can figure out what to invest it in. I’ve told her I’ll match anything she puts in from babysitting, dealing drugs, running guns, etc. If nothing else, she’ll learn a valuable lesson in the effects of taxes as urged by the New York Times and channeled by the Obama administration on incentives to save and invest.

I should also mention that I have many friends at the Times, and I am not thrilled with what I foresee as their economic future - due far more than it should be to the mismanagement and self-dealing of the family shareholders at the Times. There have been very interesting comments on the latest SEC filings by the Times company. Also the Very Great Megan McArdle’s take. I’m sorry, folks, but while I’d be happy to dance on the Sulzberger grave, I have too many friends at the Times to wish them ill.

But all this is very different from saying what the commentators mostly say, which is, ‘liberal rag, cancel’.

My point was, instead: Going online for free puts me in the position of valuing the New York Times in the same way and at the same price, at least into the long term, that the Times values me. We have reached a free and equal bargain - I don’t pay for home delivery, and it delivers the kind of product you can pay for with the online ad revenue stream, which is to say, Judith Warner and the “nurse ant tending to the slumbering larvae,” as I put it in the op ed.

Kori Schake, our Bond heroine!

2008-10-09T20:37:00.000-05:00

The current issue of the New Yorker, week of October 13, 2008, special election issue, has a nice article,“Worlds Apart,” by Nicholas Lemann on the foreign policy differences between Obama and McCain - including a good discussion of each candidate’s foreign policy advisory team.

There’s a very nice reference to the wonderful Michael McFaul of Stanford (and, note, a Hoover Institution senior fellow), an Obama advisor who helped get his campaign straight on Georgia and Russia.

But especially terrific is the description of the Very Great Kori Schake, a McCain advisor, West Point professor, and also a Hoover fellow, with a new book out on foreign policy. Kori Schake, Lemann says, “might be plausibly cast as a heroine in a James Bond movie - the sort of character who speaks several languages and is also an Akido master.”

Absolutely. As someone privileged to know Professor Schake, I can confirm this.

(The article is not online, alas.)

My long review essay on Paul Kennedy and the United Nations

2008-09-20T18:36:00.000-05:00

Paul Kennedy’s book on the history and future of the United Nations, Parliament of Man, appeared in 2006. A Spanish translation appeared in late 2007, which I review in a (very) long essay (some 10,000 words, be warned) appearing in Spanish in the Revista de Libros (Madrid), November 2008 issue. The Revista, for which I serve as political science advising editor, I am proud to say, is one of the best book reviews going in any language, anywhere.

It is interesting, as a side note, to see how the title of Kennedy’s book has shifted between national markets. In the US edition, it is subtitled “the past, present, and future of the United Nations.” In the Spanish edition, it is merely the “history of the United Nations.” Whereas the British edition has it as “the United Nations and the Quest for World Government.”

My review runs across a wide range of issues, related both to Kennedy’s work and the project of global governance. My view of Kennedy is that he is a “platonist” as regards the UN; forever looking past the rather sordid reality of the present to dream of the glorious future of global governance that is, alas, always coming but never come. And, in a world that seems to be returning to stronger regional multipolarity, global governance looks less on offer, and the UN as, at best, a place for multilateral negotiation among sovereigns, more so. My view is that global governance always looks most possible when the US is at its hegemonic strongest to offer the guarantee of security that allows all the platonic dreamers to do their dreaming. History however is upon us once again.

It is available on SSRN in the English version that will appear in Spanish in the Revista in November; I will also post the Spanish version to SSRN once it is out. Some bits - this one observing that a Europe attuned to the spirit of Raymond Aron would look with alarm upon American leaders in a new administration bearing the gifts of ‘meek multilateralism’ and superpower humility:

***
The truest description of the international security situation since 1990 is that it is a conjoined and parallel UN-US security system. It is best described as two parallel, interlinked security systems – a weak one, the UN collective security apparatus, and a strong one, the US security guarantee. Understood this way, the US is not merely a, or even the, dominant and most powerful actor. Rather, the US offers a genuinely alternative system of international peace and security. And the dominant actor’s willingness to extend a security guarantee to a sizable portion of the planet, explicitly and implicitly, alters the meaning, necessity, and quality of collective security at the UN itself. They are two different game-theory scenarios – a dominant actor within a UN collective security-defection international relations “game”; versus an actor that offers its own security package alongside that of the UN in a parallel collective security “game.” In a diplomatic system characterized (in game theory terms) by insincere public promises, easy defection, moral hazard, and free-riding, the fig leaf is assiduously maintained that the UN constitutes, or anyway offers, a collective security system. Whereas in fact, most leading players in Europe, Asia, and Latin America, and even the Middle East, are unwilling to test the strength of that system: insincere lip service to the UN system while actually relying on the United States.

A realist might say, in other words, that for all the extant elite complaining and populist anti-Americanism, a remarkable number of countries have counted the costs of adherence to the US security promise and found it rather better than their own, and better than the UN’s, and better than anything else on offer, as to both benefits and costs. After all, the US does not even particularly care when those under its security hegemony (which extends far beyond its allies or clients to provide, perversely, significant stability benefits even to America’s acknowledged enemies) heap abuse on it (justified or not) because, in the grand scheme of things, it understands (however inchoately and inconstantly) that the system incorporates (often heartfelt but, in the final policy result, insincere) public rejection and protest by the system’s beneficiaries. The US is not imperial in a way that would cause it much to care. Part of accepting US security hegemony by its beneficiaries includes their rational desire to displace security costs onto another party, even if that providing party thereby has equally rational reasons to look to its own interests first, since it so overwhelmingly pays the costs.

Acceptance also includes realistic appraisal of the alternatives: would Europe (let alone Japan, South Korea, Taiwan, Indonesia, India, the Philippines, New Zealand, or Australia, or even Russia) prefer, for example, Chinese hegemony to the US? The crisis in Georgia has forced a little bit of discussion – less than the current newspaper headlines suggest, however – on the mission and role of Nato. On the one hand, Europe is in strategic disarray with the reassertion of regional Russian imperial will; the interests of those close to it are different from those far away and at some point even the United States will wonder, as a matter of budget and defense plans, what Nato is worth: how long does a hegemon support its free riders? Prudent, Aronian-thinkers in Europe will be wary, above all, of liberal internationalist Americans bearing gifts of multilateralism: an America that does not assert, rudely and brusquely, its own interests and views first through Nato and elsewhere, an America that sings sweet songs of multilateral interdependence is, surely, a superpower that has decided to simply go along with what everyone else does, which is another way of saying it has tired of supporting the free riders, which is another way of saying that it, too, says one thing but might do another, and what it might do is not show up when the big battalions are finally needed. Prudent Europeans fear and do not trust, above all, an America that does not put its own interests first and carry the rest along in train. Europe will soon enough face an Iranian nuclear weapon along with its massive dependence upon Russian natural gas, even as its military strength declines yearly – hourly – and in important respects it is today at least arguably more dependent on the American security guarantee, not less, than at any time since 1990.

Come to that, one does not hear a great clamor among Europeans for the collective security of the UN, in the form of calls for resolution of the Georgia crisis by action of the Security Council – for obvious reasons. And yet, if one gives up the idea of the Security Council as the seat of collective security governance and understands it as the talking shop of the great powers, then it performed as well as should be expected. Of course it resolved nothing – but the architecture of the Security Council in the UN Charter anticipates that in a conflict among great powers on the Council, of course it cannot resolve anything. But it did provide a talking shop in which it was as a matter of course assumed that active, relatively public discussions would take place there – and, moreover would take place not just between antagonists, but much more publicly with other great powers, and even with non-great powers represented in rotation at the Council. The Security Council performed well in the Georgia crisis, given what it is, not badly.

But if we are indeed moving toward a more multipolar world – at least in certain regions, the Russian ‘near abroad’ or the Chinese periphery – then the great power conflicts promise to become more acute, not less. As David Rieff has pointed out, multipolarity is by definition competitive, not coooperative. In such a world, the Security Council performs a vital, but perforce limited, function as multilateral talking shop for those conflicts – and its ability, as one hopes Ban Ki Moon and his advisors understand, to perform that function depends fundamentally on accepting its limitations. The rapturous fantasies of global governance that feature so prominently among liberal internationalists – Professor Kennedy and nearly all professors of international law, for example – are not just a quaint holdover in a multipolar world, they are today an affirmative danger, because they tempt institutions beyond their limits in time of crisis. The grand irony, for which Georgia perhaps serves as a harbinger, is that the most propitious time for dreaming of global governance was precisely when the US was at its maximum, largely unopposed strength, because it allowed much of the world, much of the democratic industrialized world, the luxury of imagining that its security was one thing, when it fact it was another.

There are people in the world who must rely on the UN collective security apparatus; and not to their benefit. Why? Because not even America’s peculiarly changeable combination of interest and ideals extends everywhere: Darfur and Congo, for example. An important reason why the dual system persists is that the US and the industrialized world that takes its stability from US hegemony together see the UN system as the least costly system for enforcing minimum order in the hopeless world of failed and failing states – places that they will not, and realistically cannot, police (pace Afghanistan). But all this is emphatically not the system as Kennedy describes it; he offers instead the classic collective action problem located at the UN itself, in no small part because it is built into his a priori moral vision of the rise of UN hegemony necessarily through US decline. Kennedy might profitably consider that the existing UN system is one that is publicly in perpetual crisis and yet somehow, because of the parallel US security guarantee, never truly forced to a crossroads. It seems more plausible to see the UN in collective security as actually stable, to the point of stasis and stagnation. Even episodic protestations of crisis are an integral part of the quotidian theatre of the UN cul-de-sac.

On nearly every measure – population, influence, military might – the Security Council’s five permanent members are completely unrepresentative of the world; Kennedy devotes much discussion to the issue, as one would expect if one thought the Security Council ought someday to be the principal organ of global security. After all, the Council is not even especially a collection of the great powers anymore. This issue was (foolishly) the dominant discussion in largely abortive UN reform negotiations that took place in 2004-5: how to alter the composition of the Security Council to make it more realistically a meeting ground of the great powers, and how to make it more representative of the world as an idealized institution of global governance. Kennedy candidly acknowledges that there is no solution to this issue; Kofi Annan, to his credit, urged the main players in UN reform to leave this question aside in favor of more urgent questions that could be resolved. The main antagonist was not the United States, whose place on the Council is beyond question and is thus in the rare position of being a relatively neutral “honest broker” on the issue. The disputes arose instead from the lesser and declining military powers, France and Britain, as against the clamors of Japan, India, Nigeria, Brazil, and even economically powerful but de-militarized Germany. Yet even if the existing “permanent five,” holding a veto, would accept any alteration, in real life Japan is checked by China, India by Pakistan, Brazil by its Latin American neighbors, Germany by the global recoil at a third EU permanent member and, alas, it is far from inconceivable that, in the next quarter century, Nigeria might fall into grave civil war.

Nonetheless, to a large extent Kennedy insists on telling the tale of the Security Council in the post-Cold War period as largely an ‘America versus the world’ story – a morality tale of heroic liberal internationalists checkmated by Republican Party intransigence. It is both tiresome and seriously misleading to devote so much of the text to minor and parochial issues of US politics in what is supposed to be a discussion of the world system. It is as though Kennedy, whose prose is otherwise lapidary, stunningly clear, and entirely free of academic jargon, suffers from a sort of political Tourette’s Syndrome that causes him suddenly and inexplicably to lapse into irrelevant criticism of the US for this or that. Of what conceivable importance, for example, is his Little Englander digression on the virtue of the BBC over US news programmes, or any of a dozen other indulgences?

The US, as Madeline Albright famously said, is the ‘indispensable party’, but what matters are not the little bits of internal US political wickedness that Kennedy cannot shake from his mind, but instead a much more basic fact that much of the industrialized world accepts the US role and depends upon it regardless of what is said. Kennedy fails to take account of a conjoined UN-US security system that prominently features diplomatic insincerity. He moreover assumes, as ever, a specific normative direction for “progress,” toward a genuinely UN system of collective security. Suppose, instead, that UN collective security is what everyone wants in theory but no one wants in practice? In any case, the rise of a new, multipolar world – not the decline of the United States as such, but instead, as Fareed Zakaria argues in a new book, The Post American World, the rise of new powers such as India and China, and the global risks posed by ‘resource extraction authoritarian states’ such as Russia, Venezuela, Saudi Arabia, and Iran – offers the opportunity to see how much America’s allies and friends, and for that matter its enemies, actually want to give up the stability proffered by America’s security guarantee. That new world might offer much in the way of schadenfreude – it might not, however, be a thing of beauty.

Welcome to By Common Consent folks

2008-09-01T15:11:00.000-05:00

By common consent readers - welcome - I saw from the site meter that I was getting some hits in relation to a post on Moroni and Mormon and LDS views on just war ethics. As I take it BCC is an unofficial Mormon site, greetings and delighted to see you. I’m a law professor in my day job, and among my academic areas are ethics of war and just war theory, which involves moral philosophy, theology, and history, more or less.

I am a long, long lapsed Mormon; served a mission in Peru in the 1970s, but haven’t been active since the early 1980s and am married to a Catholic and, although with no desire to become a Catholic, make Mass my/our religious practice, such as it is. Most of my immediate family -brothers and sisters - remain active Mormons and, unlike many ex-Mormon intellectuals, I have zero ill will toward the religion or its practitioners; quite the contrary.

Here, for what it’s worth, are a couple of links to things I’ve written about Mormons and Mormonism:

Weekly Standard, “Mormons, Muslims, and Multiculturalism,” Dec 24, 2007
http://www.weeklystandard.com/Content/Public/Articles/000/000/014/484tthrj.asp

Times Literary Supplement, “The Magi of the Great Salt Lake,” March 24, 1995
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=935784

Los Angeles Times Book Review, “A Peculiar People,” November 1999
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=935778

For my general take on just war theory, in a single article,
New York Times Magazine, “Who Owns the Rules of War?” April 13, 2003
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=403800

The SSRN papers are all free downloads - just pick a location from which to download and get the pdf.

As far as Mormonism and just war theory goes - I’ve had a number of devout Mormon students in my just war seminar in recent years, both devout and very smart. They’ve spent a lot of time talking with me about it, and written fine papers on the subject. The thing I am most struck by is how much a theory of just war ethics - how worked out a theory of just war ethics a religion has - depends upon that religion’s role in society. If you are the Catholic or generally the Christian churches in Europe over a thousand years, well, you have a pretty extensive theory of just war ethics because you, or your religious confreres, are running the place - the rulers of states and societies. On the other hand, if you are the very early Church, your concerns about war are much more limited, to questions about individual participation - because you are not the state or running society.

Mormonism, so far as I can tell and drawing a lot on my students, has not really run state and society - leaving aside the Brigham Young theocracy in Utah - and instead long had a fractious relationship with the state and government, in which questions of fundamental loyalty for quite a long time were on the table. The ethical concerns of Mormon leaders have therefore tended to focus not on the grand questions of war and peace, and how one might, if at all, conduct war ethically, but instead about the obligation of individual loyalty to the state, the obligation to undertake civic duties including those of a soldier, and the question of moral responsibility, or not, in case of such individual participation. It is not an overall theory of ethics and war, in the large sense that traditional Catholic just war theory undertakes it - and is mostly a reflection, I believe, of the fact that Mormons have never really, so to speak, ‘run the joint’ the way that other Christians have done over centuries.

That seems to me a fair reflection of what Mormon leaders said about the ethics of war in the run-up to the Iraq war. As far as individual Mormons, and especially Mormon political leaders - Romney, Hatch - but also, in my personal experience as a laws of war lawyer with close ties to lawyers in the Department of Defense, much more Mormons serving as mid and high level officers with ethical and legal responsibilities for the ‘conduct of hostilities’ according to the ‘laws and customs of war’, as the lawyers like to say - things are a little different. I take that as a function of having civic obligations over and above religious one. But in my experience, these American Mormons tend to adopt the general tone of just war theory. Meaning, most Americans have absorbed a secularized version of just war theory, and so have most American Mormons serving in such capacities. It is the secular, human rights based theory of just war developed by Michael Walzer. I think that, more than any specifically Mormon version of war ethics, informs most American Mormons who have direct responsibilities for the conduct of war.

Labor Day thanks to the folks who gave us the weekend

2008-09-01T10:24:00.000-05:00

Labor Day, USA. So, let’s take a moment to give thanks for all those who fought for labor rights over the past 150 years. Talkleft has a nice quick history of the holiday and a Rolling Stones rendition of Salt of the Earth from Youtube.

I was a card-carrying member of the Teamsters Union for a couple of years, when I worked for a couple of years (before starting college (finally) at UCLA) at the truck loading dock for Roadway Express in downtown Los Angeles. This was in the late 1970s to 1980 or 81, I don’t remember very well. I finally decided that maybe I needed to go to college; not long after I left that job, loading and unloading big trucks, every kind of freight imaginable, the facility was closed and moved out to the desert town of Victorville. It made sense - it had become far too difficult to get huge freight trucks in and out of downtown LA, and made better sense to shift the freight from big trucks to smaller ones for urban delivery.

More importantly, the container revolution was just taking off - I didn’t know it at the time - and it was going to render an awful lot of loading and unloading unnecessary. It was a period of horrible productivity in American manufacturing - Roadway Express and I were certainly part of the less-than-stellar productivity, as we collectively were entirely indifferent to damage of any kind. Quality control was a wholly alien notion. The supervisors apparently were evaluated strictly in terms of meeting schedules and gross weight moved; I recall when we once unloaded a whole huge truck of glass fluorescent light tubes - the supervisor had us throw the boxes to speed things along and when I reported that I could hear the glass breaking in every single one, he snarled, who the fuck cares, insurance will pay for it. But I didn’t care any more than he did.

I look back over the hundred year old sloganeering of the unions, and although I am as critical as the next center right Republican about union demands, and anyway think that labor unions don’t really suit the direction of capitalism for the new century, nonetheless I stand in awe and respect for what they achieved. I don’t think that, as the 19th century slogan went, ‘labor creates all wealth’. If that were so, humans would have been far richer over the last 10,000 years; technology and innovation create wealth and none of that really took off until the Industrial Revolution. And, for the same reason, the takeoff of the labor unions themselves.

But those slogans were never truly about economics - they were an assertion of the inherent dignity of labor. To the folks who brought us the weekend, labor safety, the eight hour workday, and so many other inherent dignities of life we today take for granted - thanks.

Jeanne of Arc

2008-08-31T21:57:00.000-05:00

Jhesus-Maria, King of England, and you, Duke of Bedford, who style yourself regent of the Kingdom of France, you, Guillaume de la Poule, count of Suffort, Jean, sire of Talbot, and you, Thpmas, sire of Scales, who call yourselves lieutenants of the Duke of Bedord, acknowledge the summons of the King of Heaven. Render to the Maid here sent by God the King of Heaven, the keys of all the good towns which you have taken and violated in France. She is here come by God’s will to reclaim the blood royal. She is very ready to make peace, if you will acknowledge her to be right, provided that France you render, and pay for having held it. And you, archers, companions war, men -at-arms and others who are before the town of Orleans, go away into your country, by God. And if so be not done, expect news of the Maid who will come to see you shortly, to your very great injury. King of England, if you do not so, I am chief-of-war, and in whatever place I attain your people in France, I will make them quit it willy-nilly. And if they will not obey, I will have them all slain; for I am here sent by God, the KIng of Heaven, body for body, to drive you all out of France.

(Joan of Arc, Orleans, March 22, 1429.)

The New Class, Palin and Obama (Note to Peter Berkowitz)

2008-08-29T15:55:00.000-05:00

Peter Berkowitz once asked me how I made the transition from a fairly radical (if mostly intellectually radical) leftism to a center-right position, rooted in the defense of American democratic sovereignty abroad and a modestly libertarian conservatism at home.

The answer is that sometime during the course of the 80s and 90s, I looked at the left, my friends and confreres in America, and concluded that we were promoting a ‘left authoritarianism’, under the conjoined banner of rights and therapy: which is to say, what certain people think is good for you, promulgated in the essentially unanswerable language of ‘rights talk’.

So the importance of conservatism (leaving aside the usual issues about rational economic policy and national security) is largely that I am anti-New Class. Anti-the elite left ‘helping professions’, who come armed with law and therapy - the power of the prosecutor to make you and your kids better people! The leftwing, feminist hysteria of the 1908s and 90s over child abuse has never ceased to rankle me, and might well count as the thing that drove me out of the left (note to Peter). Waco certainly had an effect. Ever since dropping out of the Mormon church many, many years ago, I’ve never had the faintest sympathy for social conservatism as a set of substantive positions - but I also could not abide the idea of a bunch of creepy social workers (bearing, once again, the therapeutic nostrums of the helping professions but armed with the legal authority of the prosecutor) telling my much more socially conservative Mormon sisters how to run their lives and the lives of their families.

There are many ironies and subtleties to New Class analysis. One is not so subtle, however - it is, in fact, central. The rewriting of New Class doctrine by American neoconservatives that took place during the 1980s and 90s was a huge intellectual mistake (as we at Telos noted at the time, not that anyone was listening). Irving Kristol’s book on American neoconservatism in the 1990s claimed that the New Class divide was between, on the one hand, the intellectuals, the professionals such as lawyers whose livelihoods consisted of navigating the divide (more precisely: holding monopoly access to the divide) between public and private, government professionals in the “helping professions,” media professionals, etc., and, on the other hand, business people.

That proposed division, putting professionals and government bureaucrats on one side, and business people on the other, was flat-out wrong. It was wrong for all the reasons that the late Christopher Lasch pointed out in his final works, particularly The Revolt of the Elites and, for that matter, David Brooks noted in another sort of way in his hilariously on-target Bobos in Paradise. Many business people, many whole categories of business people - people in finance, private equity, all sorts of businesses - are entirely New Class in their cultural and professional and social orientations.

The problem, however, is not with elites, or with the idea of elites, as such. I am not in the least bit ‘anti-elite’, anti-elite as such. I’m not a populist. I’m an intellectual and an elite and a believer in representative democracy. That a society, governed by representative democracy, needs elites is beyond issue. The question is, what kind, and what should their relationship be to those whom they govern?

Palin and Obama cast that issue pretty squarely on the table, and they put it on the table for the next generation in American politics, once the Bidens and McCains have passed from the historical stage. Obama is a classic New Class elitist, by education, outlook, everything. So is his wife. Their professional lives have consisted in - community organizing? please - the elite management of the poor and, of even greater importance today, management of, but also production of, communalist tensions through multiculturalism and identity politics. That’s what the New Class does; that’s what it exists to do. Along with, to be sure, extracting rents for managing social conflicts that it also has much interest in creating.

Palin represents not just another sort of America, but another sort of American elite. Not very elite, in her case, let’s be clear. She is not an intellectual, obviously: so what? It’s overrated, I can tell you. She doesn’t have an Ivy League education, or even a degree from one of the great public universities.

[Footnote: She is above all a cultural product of the Western United States; the land-grant universities and colleges where my father spent all his life. Idaho native and former Clinton domestic policy advisor Bruce Reed, a genuine Democratic centrist who seems, alas, unlikely to have a big place in the New Obama Order, has written the very best thing about why Democrats run a big risk in condescending to her. His article in Slate, ostensibly about Sarah Palin, is one of the most touching essays I’ve read in a long time, because it’s obvious that it is indirectly a love letter from Bruce to his own wife. Very, very cool.]

But Palin obviously is not Fred Flintstone, either - as though Fred Flintstone were chosen by lot from the masses to lead the masses; she has political skills and smarts and a view on large issues that affect many lives. Let’s face it, I don’t think any of my intellectual colleagues in academia or me, for that matter, could get elected governor of anywhere, or dogcatcher, or anything else. We don’t dream of being elected; we dream of being appointed, and when we dream of ‘appointed what?’, it is usually Czar or maybe Grand Inquisitor.

But unlike me or my confreres in the academy, Palin has an organic, extra-political connection to the people she proposes to govern, whether in Alaska or the United States as a whole. Everything about her says, I’m one of you. Not the whole citizen of the planet thing that Obama’s New Class persona uses as a way to elide the question of his relationship to America and Americans, except as Redeemer, but a representative of the people of whom she is indeed representative, but among whom she must be, in virtue of the office she seeks, also an unapologetic elite. The question for contemporary elites is no longer whether they have, but instead whether they believe they actually need, a rootedness in and among the people whose lives they intend so thoroughly to govern. This is the question that Lasch posed ironically in The Revolt of the Elites (playing on Ortega y Gasset’s Revolucion de las Masas). Lasch answered, ‘not any more’; in classic New Class fashion, they aver their expertise instead and say that it is enough.

But the answer, I should hope, is still surely ‘yes’. A representative democracy needs elites who are both elite and expert and even wise, but also rooted in the place and among the people they propose to lead. Palin’s “rootedness” is not at issue. The question for her, instead, is whether she has (lacking the ponderous, yet often pointless credentials of the contemporary elites) that which is genuinely necessary to lead and manage an enormous, modern political economy, as well as a polity out among enemies in a dangerous world. The common man does not. Fred Flintstone does not. Does she?

The modern Democratic party has wobbled, since Woodrow Wilson at least, between its intellectual pretensions and its working class roots, through Dewey, Stevenson, etc., etc.. But it has tipped over today, and not just into elite management, the ‘expert’ management of society that its progressive wing has always proffered, sometimes for good against populist sentiment, but frequently for bad, in all the ways that Jonah Goldberg notes in Liberal Fascism - as a justification for left-authoritarianism. Today, however, it has tipped beyond that into New Class ideology, the seemingly unassailable combination (which is to say, the intellectual cul-de-sac) of therapy-law managing people who are increasingly broken down into identity communities, and whose relationships are then run (we call it ‘community organizing’, among other things) from the top by New Class elites. That’s Barack and Michelle Obama, even if you leave aside all the creepy cultish stuff. The Democrats are the party of the New Class, for as far into the future as I can see today.

For the Republicans, however, the question is still (for the moment) an open one. What remains most open, in the future of politics and ideology for the party, is the way in which it comes to grips with the necessity of elites in a Republic, in a republican form of government, in a representative democracy. It has its New Class temptation, to be sure - its name is Mitt Romney. Conservative New Class analysis, however, because it has mistakenly exempted business people from the category, cannot see Romney for the managerial therapist that in reality he is. For that matter, it cannot see, either, that what passes as evangelical religion in the United States has long since made God into a cipher interpreted by the Twelve Step Program; the God of the evangelicals turns out to be ‘as interpreted’ not by his prophet, but by our therapist.

At the other end, however, without a theory and practice of elites, the temptation to disastrous and, let’s be clear, often evil populism always looms. Obviously this has always been true: this is largely why we have representative republican government, not direct participatory democracy. New and not worked out for Republicans (and conservatives more generally), however, is what this means today, in a world in which New Class experts - free floating not just in the United States but, in a globalized world - propose to run the planet while they float untethered, unrooted, deracinated, unattached, but always highly paid, in the jet stream. What is the theory of elites, what is the theory of popular participation and democratic legitimacy? How to describe the difference (a difference we currently recognize, if only in an intutitive, inchoate, and untheorized way) between the “leadership” of the republic and its citizenry, on the one hand, and the “management” of a mere “economy” and its mere consumers, on the other?

Working out this relationship in a way that can be defended intellectually, but is also accessible politically, is the current intellectual task of conservatism in America. Whether, of course, it knows it or not.

***
All that said:

I am supposed to be finishing a book chapter on where American conservatism is, or should be, going. For the record, it is not done yet.

In some respects, this was always an odd assignment for me, since I am a johnny-come-lately to conservatism, and am not sure exactly how much applies to me ... social conservative, very far from it; national security conservative, yes, emphatically; libertarian conservative, yes, but not in that crazy Ayn Randian mad, mad way. I suppose that means I fit one classic, if otherwise empty, definition of a ‘neoconservative’ - someone who mostly favors Republicans, but only started doing so since the mid-1990s.

That, by way of autobiography with respect to suggesting ‘where American conservatism ought to be going intellectually. Because, when I think about what actually draws me to conservatism, it starts with a profound distaste for the elite intellectual class of which I am a part.

It is what drew me, for example, to the radical critical journal Telos, to Paul Piccone and Russell Berman: a deep suspicion of what it described as the New Class management-domination of the rest of America, through a therapeutic language that barely concealed an authoritarian agenda.

(It is an authoritarianism premised, as the eminent sociologist Zygmunt Bauman once wrote in a marvelous late 1980s essay in Telos, on the proposition that the “problem” of the poor, and a “problem” of social management since extended to include all the non-rich, anyone who might not share New Class social and political sentiments, is not one of class, at least not in the usual marxist sense, but instead that, in the sense of the market-therapeutic professionals who propose to manage them today, they exhibit the “poverty of flawed consumers”).

You can read New Class ideology pretty much straight up in Clinton’s It Takes a Village, as I pointed out in a review in the TLS in the mid-1990s. I wrote about some of this in a lengthy but - if you’ll forgive me - really quite good review essay of several books on the New Class and the new ‘market professionals’ and why lawyers were so professionally unhappy in the Columbia Law Review in 1996.

So I think.

On the other hand, no one to whom I have ever described this project - even as a book chapter - has ever agreed. They all think it is thin and doesn’t amount to anything other than a political slogan: “leadership.” I therefore call upon the spirits of Telos, including its gazillion ex-editors of every political stripe, and the guiding force of Paul Piccone, may his soul rest in peace, to help me better articulate this. Because I also think that the root intellectual sources for this lie not in American conservatism, but in the Telosian critiqe of the “wholly administered society” from back in the 1970s and 80s.

And yet no one, on the left or right, among my most respected friends, thinks there is much to this, and certainly not as an (“re” - let’s be clear) animating project for American conservatism.

This skepticism has inhibited, I admit, my intellectual confidence in my ideas and has slowed down my writing. But I must admit that the emergence of Obama and, today, Palin, frankly makes me think, once again, that I’m right.

Public trust societies and kinship societies

2008-08-13T20:25:00.000-05:00

Huntington famously argues that a clash of civilizations is underway, and locates it as a clash of religious traditions, Christianity and Islam. But it seems to me more correct to think of a clash, less of two universalist religious traditions, than of two fundamental organizational principles, kinship societies and those limited number of societies that have managed to establish, however incompletely, social organization on the basis of public trust that goes beyond ties of kinship. Those ‘public trust’ societies in one sense define modernity, but some of the core conditions predate modernity by centuries - monogamy and out-marriage, to start with.

Monogamy is a necessary, although obviously far from sufficient, condition of a society that is both egalitarian and free: a society in which a group of males has no real access to sexual reproduction is not an egalitarian society, by definition, nor a free one, and that inequality in reproductive access is tied to every other form of economic inequality. And that is to speak only of the men. From this standpoint, the fact that Christianity, for reasons that appear to me, at least, historically and even theologically quite contingent, favored both monogamy and out-marriage over cousin marriage, however much honored only in the breach, sets it apart as a form of social organization.

Modernity in some sense starts with those preconditions. The development of a social ethos that accepts the idea that individuals have fiduciary duties in the abstract, that do not pertain solely to those who are members of extended family groups - even where those extended family groups are as much or more socially, rather than genetically, defined - is what gives rise to the public trust necessary to modern Western society and the modern democratic state: that the state, and its officials, will treat people neutrally, without regard to kinship or other pre-modern markers of identity. Without that trust, the result is the form of the state, but an animating principle quite at odds with it. It is the marker of the rule of law and, it increasingly seems to me, the real line of division between societies today.

What gets the cultural cycle of public trust going in society? I have no idea but certainly it appears to be a long term cultural fact, rather than a short term political creation. Samuel Pepys, for example, wrote his diary at what appeared to be the beginning of a long term shift in English political culture: a time in which offices were still heritable and for sale, but also at a time when officials - in vital public positions such as the Royal Navy - were also beginning to be held to account for corruption and fraud. By the Industrial Revolution, the culture of the civil service was taking hold, and with it an ideal of neutrality in dealing with alternating governments and with the public. The very notion of “honor” and to whom it was owed had shifted.

The idea of equality before the law, in matters related to integrity of person, is a very old one and found widely across cultures. The idea of equality in the distribution of the largesse of state favor, and that it is dishonorable for me as a publi official to favor me and mine over you and yours in the matter of state property and privilege, because it is a “public trust,” is a quite new one, and very limited in cultural scope. Yet it is the basis of legitimacy - even more the democracy - of the modern state worldwide. What we call a ‘failed state’, after all, is almost by definition that there is no concept of public trust, that it has been exhausted and depleted.

(Useful reading on this includes James Bowman, Honor; and Francis Fukuyama, Trust. Of course, if your view is that all societies are equally successful in their social and cultural arrangements, just different, but no one is better or worse, then none of this will make much sense.)

The Ghost of Freedom: A History of the Caucasus

2008-08-13T19:45:00.000-05:00

The new issue of the Times Literary Supplement has a fascinating, troubling review by Donald Rayfield of a new book on the history of the Caucasus. I think I nominate it, and the book, for most timely of the year. The Ghost of Freedom, by Charles King (OUP 2008).

[Western] romanticizing underlies attitudes to the new states of the southern Caucasus, Azerbaijan, Armenia and Georgia, where a hard-headed desire to have a route for oil and gas that cannot be cut off by Putin and Medvedev is glossed as an aspiration to encourage European Union-standard human rights and democracy. The discussion of Georgia’s emergence from “failed state” status under a tired Edvard Shevardnadze, mired in corruption, like the account of Azerbaijan under its dynasty of ex-KGB Alievs, and of an Armenia run by violent nationalists and thinly disguised Soviet-style Communists, is more than competent. One would wish only for a little more cynicism: Mikeil Saakashvili may have the suave exterior of a Columbia University lawyer, but there are a lot of questions not posed, let alone answered here. The initial connivance of the Russians at the Rose Revolution, which got rid of the Ajarian warlord Aslan Abashidze as well as of Shevardnadze, two figures particularly hated by Putin, is unmentioned, and the mysterious sequence of murders and unexplained deaths of Saakashvili’s rivals and opponents needs to be discussed as proof of the continuity of a specifically Caucasian way of politics.

In a book dealing with “the ghost of freedom” one would expect a more thorough exploration of the Caucasus’s little Kosovos, where ethnic groups such as the Abkhaz and South Ossetians try to break away from a newly independent Georgia only to find themselves international pariahs, whose only refuge is a return to the Russian embrace. Here Putin’s salami tactics for reincorporating lost Soviet territory meet with no adequate or even intelligent response by the principal victims, for instance the Georgians, or from the European Union and United States who have already tied themselves into knots over the former Yugoslavia, and can only wring their hands as they see Russia, with the help of its heavily armed “peacekeepers”, turning Abkhazia back into its own private recreation zone. King ends with a vague hope that Europe’s “inexorable march” towards liberal values can proceed in the Caucasus, but not much of the evidence supports him. For over a thousand years the Georgians and Armenians have appealed to Europe for support as fellow Christians, as Europeans by culture, if not by geography, and after being strung along by Crusaders, by Louis XIV, by various Popes, by Presidents Wilson, Roosevelt and both Bushes, can still not believe that the answer they get will always be a perfunctory apology that deeper interests of state force the West to take sides with its major trading partners, not its cultural and spiritual brothers. Ghost of freedom, indeed. Given the present crisis, as Russia backs Ossetia’s separatists with bombs and shells, our politicians’ vacillations and our diplomats’ complacency may not be remedied in time, even if a group of experts were hurriedly assembled to follow up Charles King’s reconnaissance and produce and analyse in full the history of the Caucasus.

C.J. Chivers, NYT, offering a a page one opinion piece on Georgia

2008-08-11T19:05:00.000-05:00

(Thanks Glenn, for the Instalanche, and welcome Instapunditeers.)

(Update: Dear Mr. Chivers. I’ve gone back and read some of your earlier reporting, which is excellent. So why don’t you ignore all the rude things I say below, and quit wasting your time writing the kinds of things that get the cross-x I give it below. Why, in the midst of the world potentially changing in a genuinely strategic and dangerous way, are you writing pointless opinion pieces, pieces which I or anyone else might agree or disagree with, while channeling - not Kremlin operatives, not Georgian generals but ... anonymous USG flunkies, likely from the State Department, with some or another ax to grind. This requires your genuine, hard-won, value-added Russia and Central Asian reporting skills? You have the skills to go gather new, actual facts, and you waste your time on this blather. I realize this is what the Times values, and this is how you get on the front page. But please be aware that there are some NYT readers - even paying subscriber readers - who would actually like to read brand new facts, gathered out in unlikely, difficult places. The test of a good, well-reported piece, Mr. Chivers, is that I wouldn’t be able to say anything about it: a painfully simple logical argument, not subject to the kind of logical questions I raise below, and facts that you have found out that no one yet knows. I don’t suppose it will wind up on the front page. But I would read it and I bet a lot of other people would too. Why don’t you do what you are specially in a position to do, and go out and research and report something in this moment of crisis? I mean something not obtained in the eternal circle-jerk between NYT reporters and USG officials eager to leak something. You can put all your brilliant analyses and opinions in the book later - I promise I’ll buy it. But in this moment of crisis, why not do some original reporting? Like you used to do? You used to be quite good at it, you know.)

The last time I had occasion to think about NYT’s Moscow bureau chief C.J. Chivers was by reason of his reporting on the latest UN conference on small arms controls. I put that post up at Opinio Juris, here. My basic point was that Chivers’ reporting was soft-ball at best, took whatever UN officials had to say at pretty much face value, and didn’t offer relevant qualifications to the narrative he and UN officials seemed together to accept. Dave Kopel, at Volokh Conspiracy, had more to say, here.

The NYT has a front page article by Chivers, a “news analysis” offering, In Georgia and Russia, a Perfect Brew for a Blowup, August 10, 2008. I haven’t posted this to OJ, because it’s frankly not worth it, but it is still an annoyance. Midway through the article, Chivers informs us that:

The risks were intensified by the fact that the United States did not merely encourage Georgia’s young democracy, it helped militarize the weak Georgian state.

In his wooing of Washington as he came to power, Mr. Saakashvili firmly embraced the missions of the United States in Afghanistan and Iraq. At first he had almost nothing practical to offer. Georgia’s military was small, poorly led, ill-equipped and weak.

But Mr. Saakashvili’s rise coincided neatly with a swelling American need for political support and foreign soldiers in Iraq. His offer of troops was matched with a Pentagon effort to overhaul Georgia’s forces from bottom to top.

At senior levels, the United States helped rewrite Georgian military doctrine and train its commanders and staff officers. At the squad level, American marines and soldiers trained Georgian soldiers in the fundamentals of battle.

Georgia, meanwhile, began re-equipping its forces with Israeli and American firearms, reconnaissance drones, communications and battlefield-management equipment, new convoys of vehicles and stockpiles of ammunition.

The public goal was to nudge Georgia toward NATO military standards. Privately, Georgian officials welcomed the martial coaching and buildup, and they made clear that they considered participation in Iraq as a sure way to prepare the Georgian military for “national reunification” — the local euphemism of choice for restoring Abkhazia and South Ossetia to Georgian control.

All of these policies collided late last week. One American official who covers Georgian affairs, speaking on the condition of anonymity while the United States formulates its next public response, said that everything had gone wrong.

Does Chivers really want to tell us that the United States “helped militarize the weak Georgian state”? What is the evidence for that? The fact that the US helped reequip the Georgian military and helped train it? Mr. Chivers, cf. militarize - it doesn’t mean training and weapons merely. It doesn’t mean what you seem to think it means. It means systematically remaking the state under military domination. Is that really what you mean? Really? Again, what is your evidence for this remarkably strident charge? Besides the supply of American equipment and training?

After all, US policy around the world has been training of military forces in democratic states so that their militaries would operate in a more professional and disciplined fashion - particularly in matters of human rights. As I noted in my OJ post, here, the Georgian military was in desperate need of such professionalization going back to the days that led to the current conflicts. It was, in my personal experience at Human Rights Watch in the early 1990s, a militia army, extremely abusive and undisciplined in pretty much every way. The US “helped militarize” the Georgian state by seeking to raise its military above those standards. Good God, the horror.

To precisely what in what the US taught do you take exception? You say that the United States “helped rewrite Georgian miilitary doctrine and train its commanders and staff officers. At the squad level, American marines and soldiers trained Georgian soldiers in the fundamentals of battle.” You say this with a certain hint of dark things. Wow. How horrible - the fundamentals of battle. Who would have thought?

So what are you suggesting? Come on, be straight about it. What exactly do you think that American training said or did that was objectionable? Are you, for example, suggesting that US forces trained Georgian forces in abuses, of the kind of Abu Ghraib? What? It’s not good enough to drop a dark suggestion that training in basic military skills is somehow wrong. You actually have to say what’s wrong with it. If your point is that this led Georgian political elites to assume that the US would back them in a fight with the Russians over South Ossetia or Abkhazia, fine, or that the US failed to disabuse them of that possibility in order to keep them in Iraq, fine too - but that’s a completely different argument from saying that Americans trained Georgians in perfectly respectable military skills that any army needs, including respect for the laws of war, and implying that there was something sinister about it. Those latter possibilities, while entirely possible and in my speculative estimation likely, require premises going beyond simply saying that the US trained the Georgians. I’m speculating; you’re telling me you’re not. But what you offer in way of evidence consists of the fact of training and equipment - consistent with any number of other policies and explanations - and some anonymous sourcing.

Christ, it’s not that hard. Tell us straight what you you think is wrong with US policy. Is it the content of training? Is it the the bare fact of training? Is it an implied deal of training for the US going along with a Georgian move to re-take the territories? These are not the same thing, but you conveniently treat them as though they are - and, in particular, without managing quite to say so, imply sinister things about the bare fact of training and its content, as a way of casting suspicion on US conduct, rather than Georgian interpretations of it. As for the US re-equipping the Georgian army, if that’s wrong, one obvious implication is that it would somehow be better if the Georgian republic were unable to defend itself against Moscow - maybe that’s true, maybe not, but surely you would admit that this is a rather Moscow-favorable interpretation of things, offered by a Moscow bureau chief, and that simple argumentative obligations, not offered as narrative, would require that you at least acknowledge the possibility and state why that is not the case. Might I trouble you to do that?

Look: what you’ve offered us is an argument, masquerading as a narrative news story. I’m very interested in arguments, especially on a policy topic as difficult and fraught with risks as this, and I don’t doubt that you have important things to say. But if you want to offer an argument, then, well, argue it. Make claims and then explain the evidence for your premises. You offer us a narrative story that is, let’s be honest, very Moscow-centric, backed by a couple of unnamed US government sources. The last one you cite, the one American “official who covers Georgian affairs,” sounds like possibly he or she has an agenda or two. Is that possible? Might you tell us about it? But the fundamental point is that if you actually set out to argue your case, it wouldn’t look anywhere near as convincing as the narrative you spin out, because you might have to consider weaknesses in your own position. It would be a lot harder to rely on anonymous sources. A decent editor would query the use of inflammatory and unwarranted language like “militarize.”

I’m fine with the NYT becoming an 80% opinion paper, heck, 95%, since that’s what it is already. But in that case, offer the opinion pieces as arguments. My fifteen year old daughter just finished an elementary logic class this summer - strikingly, one of the most important parts of the class was the discussion of why straw arguments were bad, and the obligations in argument of charity in presenting an opponent’s position and fidelity in offering it. The fundamental problem with the journalistic media style is that, offered in place of argument, presenting opposing views, alternative explanations, anything to the contrary, simply disappears. Doesn’t fit the narrative. For heaven’s sake, if you’re going to argue, then argue.

Mr. Chivers, I don’t doubt you have important things to say about the Russia-Georgia war. So why don’t you report the facts, unadorned, and if you want to argue your opinions, then do so in an plainly stated, argumentative way?

(ps. To finish out the apparent agendas, I suppose I should add that what Chivers means by “militarization” is that Georgia supported the US in Iraq and Afghanistan. As he says (bold added):

[T]he fact that the United States did not merely encourage Georgia’s young democracy, it helped militarize the weak Georgian state.

In his wooing of Washington as he came to power, Mr. Saakashvili firmly embraced the missions of the United States in Afghanistan and Iraq. At first he had almost nothing practical to offer. Georgia’s military was small, poorly led, ill-equipped and weak.

But Mr. Saakashvili’s rise coincided neatly with a swelling American need for political support and foreign soldiers in Iraq. His offer of troops was matched with a Pentagon effort to overhaul Georgia’s forces from bottom to top.

Is it a “fact” that the US “helped militarize the weak Georgian state”? This sounds like an opinion to me. It might be a reasonable one - I think what Chivers says next is almost certainly correct, that the Georgians perceived the situation as a quid pro quo, but that too falls into the category of opinion, even if informed opinion, at least on the evidence presented: it is not shown, instead it is used as a premise in the rest of the argument - assumed, in other words.

It is likewise quite another question whether the US, which has had a long term policy of assisting places like Georgia with training and equipment, for reasons that long predate Iraq or Afghanistan, also saw this as the quid pro quo. Chivers would have to establish that this would not have been US policy in any case. Not exactly what I associate with, um, facts. The implication, in any case, that Chivers wishes to draw from this is that the weak Georgian state was “militarized” by the fact of US military assistance - as though there were no independent reasons why the US would not have undertaken this - and the “proof” of this is ... Georgian military support for the US in Afghanistan and Iraq. Lovely.)

(pps. Remarkably, dear readers, I am one of the dwindling out-of-NYC home subscribers to the Times. I pay for it, I don’t just read it online. Even more remarkably, I am actually a NYT shareholder, oy vey - shares I bought a while back because, as a finance professor in my day job, I thought it would help if I owned a few shares of a company I frequently use as a class test case to give me a personal reason for keeping track of the company finances. Still, I didn’t imagine when I bought it that the stock price would fall this far ... For that matter, I’ve written for the Magazine a couple of times. I don’t have a strong opinion as to whether the content really has an effect on the financial decline of the Times; there are arguments both directions, in that the greater opinionizing , if it really is that and not simply more noticed opinionizing, might have the effect of reinforcing the core audience as a niche product. And the conditions of the industry are disastrous for reasons that reach beyond any single newspaper. But I do agree with Glenn Reynolds and others that the best financial strategy for newspapers, including the Times, is reporting of facts and not simply offering opinions. The web is filled with people with opinions who frankly write as well as any NYT writer. Any ass with a law degree can do what I did here, and simply closely read what was written; I did what an editor should have done. What we don’t have is independent access to facts. Pity that the Times seems to reached the point where “reporting” simply means calling a government source and saying, hi, you want to leak? For that matter, I suspect Chivers is probably a pretty decent factual reporter on the ground in the many places from which he has reported, possibly even an outstanding one, but you’d never know - the problem is that factual reporting is not especially valued by his employer, and does not seem to be the ticket to the front page. More’s the pity. Mr. Chivers, I apologize for being rather rude in this post. But at some point exasperation trumps - who was it, Dorothy Parker, who got it best: What fresh hell is this?)

How much reading will 2 or 3L law students do?

2008-08-11T10:58:00.000-05:00

Rick Hills, over at Prawfsblawg, asks the question, how much reading will 2L or 3L law students do in a weekly seminar? Fifty pages a week too much?

Professor Hills teaches at NYU. I’m surprised that no one in the comments so far has remarked on what students outside the top 10 law schools do in their second and third years, at least if they are in sizable cities - viz., work as many hours as they can somewhere. It helps to be in DC, of course, but my students at American try to work at least half time, as permitted by the rules, and in many cases I am sure work far more than that. At paid jobs with law firms, if they can get them, or else at internships with government agencies. Their motivations are partly to reduce debt, but also because, at least in DC, clerkships with firms or internships with government agencies are hugely important ways of getting jobs.

This takes a large toll on class preparation. I put up with it in large part because I can see from years of watching that these positions matter in getting jobs. My students are not in law school as grad school - I wish they were, but they’re not. I don’t think they go out as well prepared academically for practice as they would if they put their focus on their classes - and I think students at schools, even in my same tier, where such positions are not available have an intellectual edge in important ways for the practice of law, because they focus more on class. But it is hard for me to fault my students and, in fact, I don’t.

Bright Lights, Big City

2008-08-03T00:34:00.000-05:00

Huh. I remember that I have read a Jay McInerney novel, Model Behavior, from the late 1990s, and Bright Lights, Big City seems identical, as far as I can tell. I enjoyed Model Behavior in a guilty pleasures mode, mostly because it fit into a very particular genre of male fantasy novel that is the male equivalent of chick lit - the novel of manners in which the hero is some version of an intellectual or writer or anyway nothing very manly or hunky or rich or famous or powerful, but somehow gets the model or actress or some-such, of whom he is obviously completely unworthy. She leaves him but then, of course, comes back to him. Or they break up and get back together. The fantasy point is that she would be interested in the first place. In McInerney’s novels, the model seems to want to get married when in fact she would be looking to trade up. But you see what I mean about the equivalent of chick lit. I also find intriguing, as a fantasy point or maybe it’s just something from a now-gone era, that the New York young writer of fiction, short stories, novels, etc., seems like a figure of sexy up and coming power and consequence. Writers? Who are we kidding? Girls these days are not foolish enough to fall for boys who studied literature in college, rather than economics, unless said male is already known to be headed to Yale Law School. Other examples in this genre include the movie Notting Hill which, contrary to all wisdom, is not a chick flick at all but a male fantasy, and of course the very great, in its own sweetly wrong, wrong way, AA Gill, Starcrossed. I started into Bright Lights, Big City at the Stanford gym, on the cross-trainer, at 20% O2, which seems about right. But what is this thing for first person, present tense fiction?

ps. Okay, it all becomes clear, now that I have finished reading BLBC at the gym, and have launched into Less Than Zero. I didn’t do drugs, didn’t drink, didn’t have the money for either of those two things, and didn’t really know anyone who did all that cocaine in the 1980s. Less Than Zero is a bore, even as reading on an exercise machine; I can sort of imagine that it shocked people when it came out in the mid-1980s, but the complete absence of anything below the surface save for some dated psychoanalytic schlock that was dying even as this was being published is just ... dull. Someone at the bookstore commented to me in the checkout line that Ellis is a better writer than McInerney. Not as far as I can tell - at least McInerney tells a rather sweet romance, plus more of the lost-mother psychological schtick; Ellis is just dull. Not sure I’ll manage to finish Less Than Zero. I saw a $2.50 Dover edition of The Sorrows of Young Werther in the bookstore, too, maybe I’ll reread that. Same general trend, more content.

Francisco Goldman and novels of the 1980s

2008-08-02T15:42:00.000-05:00

Taking a little break here from writing away on my US-UN relations manuscript. Took a stroll over to Stanford Bookstore, where I was suddenly seized by a desire to read a couple of novels that supposedly characterized the 1980s. So I bought Bright Lights, Big City and Less Than Zero.

I never read any of this stuff when it came out. I wasn’t interested - not sure I am now, but got curious because people I knew kept referring to the 1980s in terms of those novels, even though none of the references seemed to have any relation to my life during the period. I think I was the right age - I was 25 in 1980, when I finally got around to starting college at UCLA. I was a somewhat older student who didn’t have any money, had been working for a couple of years as a teamster on a loading dock in the grimy part of downtown LA until it closed in 1979 and moved out to Victorville, had spent a couple of years as a Mormon missionary who hadn’t really been sure about going to college at all ... reading the back covers, I don’t think Less Than Zero had much to do with my experience in LA. No mistake - I loved LA, lived in a gritty, dangerous part of Hollywood for a couple of years, then moved to Venice and Santa Monica when I started in at UCLA - I’ve always loved LA. But I never saw anything of the glamorous, moneyed, fast young LA set when I was young and lived there. Same in NYC a decade later, after law school and the beginning of my adult life on the East Coast.

One reason I thought about these novels was (a shining example of the Anderson coup-de-nonsequitur) thinking about the novels of the Guatemalan-American writer Francisco Goldman, an old friend who most recently published a nonfiction account of the murder - really, the investigation or non-investigation into the murder - of Archbishop Gerardi in Guatemala in the late 1990s, The Art of Political Murder, out September 1 in paperback. It’s a marvelous book, and it made me go back to Frank’s novels and (continuing the weird brain connection saga) think about what Frank said to me in the 1980s about novels and novelists.

He - Frank - said, I don’t want to be like Them. Meaning Jay McInerney or Bret Easton Ellis. Frank, a well regarded rising young writer in 1980s New York, was then working on his first novel, a sprawling marvelous thing called The Long Night of White Chickens, a combination Latin American fabulism combined with a New York Jewish coming of age story. Sound weird? Well, it works, read it. Also, quite apart from anything else, it’s the best riff on what the world of do-gooding, nongovernmental organizations working in bad places in the world is like, even twenty years later.

(Why is it, by the way, that no one has written a decent novel featuring an NGO worker? Besides this one, I mean, something dating from the 1990s and beyond? The ones that are out there are either filled to the brim with sugary, soupy romantic claptrap about the Heroic NGO worker, preferably a handsome French surgeon with MSF, sawing away at the leg bones of landmines victims in an improvised field hospital, Gaulois cig dangling from mouth, or else preternaturally but understatedly beautiful, marathon runner, disciplined bodies of the Good GIrls of the Left, triaging bags of rice and flour, or digging up the bodies of the disappeared, always Grimly Serious ... cf. Michael Ondaatje. How about, for example, a novel in which the MSF French surgeon accidentally, but hilariously, amputates the wrong leg?)

I was a young associate at Sullivan & Cromwell, and Frank used to call me up in the middle of the afternoon and read sections he was writing to me aloud as I stared out into the canyons of Wall Street and didn’t think about international tax law.

Well. Frank had a touch of envy in talking about the glitter writers of the period, Ellis and McInerney - who wouldn’t, fame, fortune, movie deals? But, he said, I want to write prose that is not about glitter, not a form of consumer shorthand. Also, he said, I’m not really interested in chronicling the lives of spoiled rich kids in New York. The Long Night of White Chickens certainly wasn’t that. But afterwards I noted a shift in his prose style. His subsequent novels shifted away, it has always seemed to me, from the exquisite formations of sentences that threatened, unless one was a very attentive reader, to overwhelm at the level of metaphorical detail, the actual narrative, to a simpler, less adorned style that emphasized the story.

It seemed to me right. Much plainer, quieter prose, much more story. It was a brave shift for a novelist looking to make a name, in an era in which glittering, high octane, sparkling surface prose seemed to count for a lot. But The Ordinary Seaman, in particular, simplifies a lot, while the historical The Divine Husband is a kind of combination of the two. And those are wonderful novels.

Frank has had recent tragedy in his life. He married a young woman I never had the privilege of meeting, Aura Estrada, a young Mexican writer studying at Hunter in New York; she died at age 30 in a tragic beach accident in Mexico a year ago. Frank is setting up a memorial writing fund in her name, the Aura Estrada Prize, and there is a fundraising dinner for it in New York in September 2008; Jean-Marie and I are on the dinner committee, but on account of my teaching schedule, Jean-Marie will be there but I won’t, alas. But I certainly wish it all the best in creating a scholarship in her name.

Ben Wittes Long War book discussion at Opinio Juris next week

2008-07-25T14:08:00.000-05:00

I have said on repeated occasions that I regard Benjamin Wittes’s Law and the Long War as the most essential reading on Guantanamo and on the general question of what forward-looking counterterrorism policy should be for the United States, on matters of detention, interrogation, the role of Congress, and many other topics. Opinio Juris will be holding a discussion of the book next week, starting Monday, with a very impressive lineup of commentators: Glenn Sulmasey, Steve Vladeck, Geoff Corn, Bobby Chesney, maybe some others as well, and also Deborah Pearstein joining the regular OJ lineup. Check it out.

(And Marty Lederman too - Opinio Juris, only the finest in intellectual legal commentary!)

My TLS review of Philip Bobbitt's Terror and Consent, now out online

2008-07-23T16:02:00.000-05:00

Philip Bobbitt’s book Terror and Consent is a marvelous book, and I hope it gets wide readership. It is long, but It repays careful study. My review in the Times Literary Supplement has just appeared online. Here is a little bit of it (and thanks to Larry Solum at Legal Theory Blog for the shoutout):

***
Philip Bobbitt’s Terror and Consent is a big book, enormous in concept and sweep, full of portent for transnational politics in the twenty-first century. Portentousness in a book can be a good thing, provided it delivers as promised, and this one delivers more intellectual punch on the fraught relationships between state and society, terrorism and terrorists, than any book I know. Not everyone feels this way; one indicator of the book’s intrinsic interest is the volatility of the reviews. The Economist was distinctly cool; Bobbitt’s grand ambition, it said, “is confusing, hard to digest, and perhaps wrong”. Niall Ferguson, on the other hand, recently called it the “most profound book on the subject of American foreign policy since the attacks of 9/11 – indeed, since the end of the cold war”.

A problem with much current analysis of this nature is that it thinks small. Today’s most serious efforts tend to avoid anything resembling a grand strategy for winning a long-term struggle against terrorists and terrorist organizations, and the states that sponsor and shield them. Favoured instead is the narrowing method of cost-benefit analysis and (adopting one version of it) an endorsement of defensive, immediate measures that are most obviously cost-effective. Talk of “victory” or “winning”, meanwhile, might resemble talk of “war” – but these days few dare call it war, at least if one wants to remain respectable among Western policy, academic and political elites. Governments shrink back, in fear of precisely the Muslim backlash their timidity invites. Terror and Consent, for its part, is heterodox on a long list of things. Bobbitt thinks that the struggle against terrorism is plainly a war, to be called a war and fought as a war, against religiously driven Islamist ideologues who seek to establish, he says, their vision of the caliphate. These figures operate in what he flatly calls “states of terror” that must be defeated. Nonetheless, changing conditions of twenty-first-century war, because of changing conditions of the twenty-first-century state, mean that war is not as it has long been.

Recent approaches to terrorism are driven not just by narrow cost-benefit analysis, but by a still narrower focus on something we might call “event-specific catastrophism”: preventing the next attack.

This is understandable for the Bush administration, considering what its officials see every day in secret threat assessments. The US Attorney General since late 2007, Michael Mukasey, has mused publicly about how constant and serious the threats against the US are; despite no successful homeland attacks since 9/11, he is “surprised by how surprised I am”. This may well be self-serving administration rhetoric, but much US policy is based less on “war” than on the last defensive perimeters: airport security, daily monitoring of cellphone traffic, internet analysis, watch lists, and many, many cement barriers. This is counterterrorism in a vital but stiflingly narrow sense. The cost-benefit analysis underlying such planning bears little resemblance to any strategic conceptual response to jihad that goes beyond preventing particular events of uncertain probability and magnitude.

Indeed, since 9/11, the Bush administration has undertaken only one genuinely strategic gambit – rolling the dice on Iraq and inviting al-Qaeda and other jihadists to make their stand there. But this is a post-hoc rationale: the Bush administration obviously undertook the Iraq war on a very different strategic basis.

The Bush administration’s numerous critics ridicule US counterterrorism policy in great measure within the same narrow framework that the administration has used. Sometimes the cost-benefit analysis would scarcely pass muster in an undergraduate economics class – the political scientist John Mueller, in his bestselling Overblown (2006), or the journalist James Fallows, each breezily announcing that the chances of getting killed in a terrorist attack are less than getting struck by lightning, or that 9/11 killed 3,000 people whereas 40,000 Americans die each year in automobile accidents and, ergo, well what? Cost-benefit comparison of opportunity costs makes sense only if comparing genuinely apposite opportunities. There have been some serious cost-benefit analyses offered in criticism of US policy. Cass R. Sunstein, for example, in his impressive, thoughtful Worst-Case Scenarios (2007), calmly demolished the so-called “One Percent Doctrine” – Vice-President Cheney’s assertion that even a 1 per cent chance of a catastrophic terrorist event requires a response as though it were a complete, 100 per cent certainty. Not even all the instruments of the national will (what President Bush committed to the fight against terrorism after 9/11) are unlimited. Choices still have to be made and priorities established and, as Sunstein observed, preventative actions bring risks of their own.

Nonetheless, even sophisticated analysis takes the prevention of particular events as the fundamental analytic objective. There is an important political reason for this. The American public has been gradually downgrading terrorism as a political priority, even while continuing to say that it supports serious measures against it. American elites, for their part, have been sliding to a dismissively contemptuous view that questions the whole idea of counterterrorism as a serious, large-scale necessity. The threat is downgraded, deploying cost-benefit-style arguments to call the administration’s counterterrorism programmes trumped up and exaggerated, and to suggest that the terrorist threat is quite capable of management without special military or even extraordinary intelligence measures.

Leaving aside the frequent starting assumption that the Bush administration has illegitimately grabbed executive power, and that this, rather than terrorism, is the primary thing against which to protect, the fundamental factual claim is that the probability of a successful attack has been seriously exaggerated. How to interpret, in other words, the fact that the US has not been hit on its territory since 9/11: as evidence of the effectiveness of the anti-terrorism efforts, or evidence that the threat was always more chimerical than real? Thus, in Barack Obama’s reckoning, Islamist terrorism is just one threat among so many: climate change and poverty, genocide and disease. The task is to learn to do as Western European countries do, and manage terror and terrorism, preferably within the existing confines of the criminal justice system. A certain amount of terrorism is normal, because a certain amount of criminality is normal. Of course, the strategic circumstances of Western Europe are different from the US (the threat to Britain, for example, lies mostly within, not without); and few in the US stop to consider that the European approach is as much a matter of necessity as strategic preference.

It might make sense to pursue policies that can at least command wide if shallow support. The kind of fundamental agreement that bound the Cold War’s “Vital Center” in the US over decades appears not to be forthcoming. Even so, few will oppose measures narrowly tailored, through recourse to cost-benefit analysis, towards preventing the next attack. But the difficulty with this policy minimalism, as Bobbitt has observed, is that event-specific cost-benefit analysis is “relentlessly tactical”. Even when not event-specific – even when it takes “Islamist terrorism” as a whole – it is by its very nature reactive. Cost-benefit analysis does not propose solutions; it evaluates proposed solutions offered by other processes. It is not a strategic form of thinking.

Terror and Consent, by contrast, offers strategic thinking on an unapologetically grand scale. It is synthetic across three large fields: history, law and strategic international politics. Bobbitt is able to combine academic and real-world experience – a Democrat by affiliation, he has served in senior positions in both law and intelligence in the Clinton and Bush senior administrations. His core insight is that transnational jihadist terrorism must be understood on the largest historical scale, and that requires understanding the shifting nature of the state and society in both the liberal democratic West and the rest of the world. For Bobbitt, jihadist transnational terrorism gets going by being able to exploit the interstices of the state system, not just on a geographical basis – the failed state of Afghanistan, for example – but on a historical basis, as the nature of the state moves from its incarnation in the twentieth century to something quite different in the twenty-first. Bobbitt’s main point is that al-Qaeda terrorism, and what might eventually replace and transform it, cannot be understood without reference to the state system and its evolution over a long period of time. This leads Terror and Consent into a long walk through the history of the state in the West ....

Joining Opinio Juris!

2008-07-16T20:41:00.000-05:00

As of July 14, 2008, I have joined Opinio Juris group blog on international law. I am so delighted to join the finest of the international law blogs; I have been a fan since its beginning.

Opinio Juris has gone through a complete revamp - an upgraded, completely redesigned site and an exciting new partnership with Oxford University Press. Check it out. (If you currently have feeds, etc., check out the instructions on how to get up to speed on the new site.)

I don’t intend to abandon this blog, so you might want to keep it on your blogroll or your feed. I will use it to post stuff that doesn’t seem quite right for an international law blog, as well as advertisements (so to speak) for various writings of mine. I do intend to post stuff about music, for example, and probably some quick stuff about books unrelated to international law topics. I might also cross post some things, too.

My TLS review of Joost Hiltermann's account of poison gas use in Iraq

2008-07-10T16:09:00.000-05:00

My review of Joost Hiltermann, A Poisonous Affair: America, Iraq, and the Gassing of Halabja (Oxford 2007), has just appeared today in the July 9, 2008 Times Literary Supplement, “America, Iraq, and Poison Gas.”

***
Despite their limitations, chemical weapons are eminently suited to another purpose – spreading terror among civilian populations. Iraq broke the moratorium early in the Iran–Iraq war that began in 1980, but chemical weapons gained their most notorious use as a weapon against civilians in the later 1980s, when Saddam Hussein turned them against his own Kurdish population in the infamous 1988 Anfal campaign. The veteran human rights campaigner Joost R. Hiltermann has written an indispensable book on the use of chemical weapons by the Saddam regime, and the reactions and responses of the international community, focusing on the largest and most lethal of the attacks in Kurdistan, the gassing of the town of Halabja on March 16, 1988. This is far more than simply the twenty-year-old history of yet another atrocity. The death sentence pronounced in September 2007 by an Iraqi court on one of the principal architects of the Anfal campaign, so-called Chemical Ali, is evidence of that. And the larger political repercussions of chemical weapons use by Saddam Hussein in the 1980s are still palpably with us today – as a monumentally mistaken ground for the US invasion in 2003, as an ongoing anxiety of governments fearful of terrorist use of chemicals, as a test of international law and its ability to make good on prohibitions on their use by states or other parties. And it is finally, as Hiltermann makes central to this book, a marker of the gap between American foreign policy realism and idealism, between the accommodation of dictators in conflict with other dictators, America in the 1980s between the regime of Saddam Hussein, on the one hand, and the Islamist regime of the Iranian mullahs, on the other – all in the midst of one of the most brutal, long-running and yet largely ignored, conventional state-to-state wars of the latter half of the twentieth century.

As a former senior staffer of Human Rights Watch, which did much of the early research, Hiltermann is well positioned to present the story of Halabja and the rest of the Anfal chemical campaign (Hiltermann is currently with the International Crisis Group). But his extraordinarily extensive interviews – with Iraqis following the US invasion, with Iranians, with US government staff current and past, with UN officials and many others – have produced a seamless record of what transpired, far beyond the research of the early 1990s. As someone who had a minor role in all this – I preceded Hiltermann as the director of the Human Rights Watch Arms Division and co-directed some of the early field research into chemical weapons attacks in Iraq in 1992 – I can say that this is the best-researched and documented account of events in 1988. And it brings to bear the best judgement available on vexed collateral questions – did the Iranians, for example, use gas weapons in the war? Perhaps future historians, with access to insider Iranian government files, will say something different; but Hiltermann’s conclusion, “not impossible, but unlikely”, is likely to remain the correct answer.

Several thousand people perished in the Halabja attack; the exact number, Hiltermann says, remains unknown. How they died, recounted through interviews with survivors, is unsparing and yet never sentimental or overwrought. It recalled to me my own interviews with survivors who watched their loved ones die from nerve toxin exposure, spasms resembling, one said, cockroaches doused with bug spray. But the larger question that Hiltermann seeks to answer is the response of the international community. His conclusion is that the world turned aside and ignored the particular crimes as well as the breach in international law and the dangerous precedent laid for the future.

Welcome PJM readers!

2008-06-24T09:07:00.000-05:00

For those of you who might have come over here from my PJM piece on Boumediene this week, welcome! As you can see, I have not been blogging much here. In fact, I am migrating over to blog on international law topics at Opinio Juris starting around July. I will continue to maintain this blog for various things, like posting up links to articles of mine and some non-international law related posts, but mostly I will be over at Opinio Juris.

Feel free to leave any comments re the Boumediene piece here on this blog, or over at PJM.

Blogging on battlefield robots at Opinio Juris

2008-05-20T13:00:00.000-05:00

I put up a post introducing the topic of battlefield robots over at Opinio Juris today. And Glenn Reynolds gave it an Instalanche - thanks Glenn!

Congratulations to all WCL graduates!

2008-05-18T14:59:00.000-05:00

My congratulations to all the graduates of WCL - commencement was today, with Justice Breyer delivering the commencement address. My warmest congrats to all WCL grads, but especially to my students and their families, and to my two research assistants during this past year, Marc Patterson and Shaunna Bailey.

Guest-blogging at Opinio Juris this week

2008-05-18T14:57:00.000-05:00

As I mentioned a few days ago, I am guest blogging this week at Opinio Juris. Hope you can join us there!

Elliptically joining the discussion of Peter Spiro's book at Opinio Juris

2008-05-14T22:21:00.000-05:00

... by quoting Michael Ignatieff. Here at Opinio Juris. I will be guest-blogging at Opinio Juris for real next week.

Philip Glass, Songs and Poems for Solo Cello

2008-05-09T17:01:00.000-05:00

(Update. I’ve now listened to the 7 songs a number of times. I’ve concluded that it is much less Bach, than the earlier, more primitive Domenico Gabrielli, of the Ricercars for solo cello, among the earliest of all known music composed specifically for cello. Gabrielli is simpler and less developed than Bach, but has a driving insistence all his own. I actually quite love Gabrielli, the Ricercars, the Canon for 2 cellos (which is arguably the earliest cello music), and also his two sonatas for cello and continuo, all of which I play - badly. The thing is, Glass’s cello songs are arpeggios repeated mostly, rather than counterpoint and, except for the wonderful song V, there is relatively little of the polyphony of the Bach solo suites. Indeed, not really even the polyphony that you find in the Gabrielli ricercars. In that respect, it has a more raw, primitive feel to it, like the Gabrielli ricercar number 1, which is almost like a continuo line for solo cello. Wendy Sutter, playing the Glass songs, gets a big bite on these repeated arpeggios with her bow. She is a player with enormous precision and control - you can feel that in her bow arm, completely - but there is also a sense, in her bowing of these chords, that she is, I don’t know, tearing off chunks of raw meat with that same bow. There is a huge, guttural power there. It is unusual to have the music focused so much on the lower range of the cello, but it is definitely ‘gutteral’. I’m not sure that is what she or Glass had in mind, but there you have it.)

Jean-Marie just gave me a gift out of the blue, something she had seen reviewed somewhere ... Philip Glass, Songs and Poems for Solo Cello, performed by Wendy Sutter.

It’s an absolute stunner, both the music and the performance. It is very close in feel to Bach solo cello suites. I will be listening to this a lot, especially late at night working with headphones on.

I have not normally been a huge Philip Glass fan - the repetition just got too boring, even if I was supposed to be achieving a higher plane or something. It seemed like perfect soundtrack music for the right kind of performance, but not something I really wanted to listen to.

No, that’s not quite right. I saw, many years ago at American Repertory Theatre in Cambridge, a quite stunning Philip Glass opera, The Juniper Tree. That was rivetting. But it was also true that the force lay in the repetition, which would have quite bored me out of my mind if it had not been tied to the book being played out on stage.

This album is something very different. Quite remarkable. Wendy Sutter has a remarkable sound, precision and intensity. Utter and complete control. The sound of her bow conveys utter control.

Track V is particularly wonderful.

Guest-blogging at Opinio Juris May 19-25

2008-05-08T22:10:00.000-05:00

The folks over at Opinio Juris have very kindly invited me to guest blog there during the week of May 19-25. It is one of the genuinely high quality law blogs, a great combination of voices, so I hope I will have something to add.

I am greatly tempted to join the discussion of Peter Spiro’s new, outstanding book - outstanding, splendid, and well worth your buying it despite my disagreements with it - that will take place on Opinio Juris next week. I might yet. However, I am looking to persuade an editor to let me review it as part of a larger review, and it probably doesn’t help things if I shoot my wad off on a blog before a review is published. So I will probably refrain.

What kinds of things cross my mind to blog about? My interests are a little different from most of the Opinio Juris folks - I have long standing interests in laws of war and international law and human rights law, of course, but my day job is actually as an international business and finance professor. Although even there, my interests run toward nonprofits, ngos, international philanthropy, and global civil society. Development finance, microfinance, international development paradigms. I have a long standing interest in terrorism and counterterrorism that long predates 9-11; one of my favorite, if unsung, roles is on the editorial board of the Journal of Terrorism and Political Violence, dating back to the 1980s. I have a very long standing interest in ethics of war, just war theory, and am currently looking at the ethics of war in the Second Inaugural Address, contrasting Lincoln’s views in the Address with Sherman, McClellan and ... well, there’s no easy way to put this, but I am interested in certain comparisons to Albert Camus, Rene Char, and Raymond Aron. There, I’ve said it. The idea and limitations of humanitarian neutrality. And of course ... robot soldiers!!

Also, I am very interested, for the first time in my career as an academic, in trying to understand the shape of the scholarship that makes up international law scholarship. I’ve never really paid attention to it. Now I am - and am increasingly finding that the most interesting connections draw one back to the larger questions of where legal scholarship is going in an age of reinvigorated legal realism as social science, rationalism and empiricism. The triumph of the Higher Utilitarianism in the legal academy - we are living the age of a kind of combined Cass Sunstein and Eric Posner. It must be a sign of age - although because I started into academic law in my mid-40s, I haven’t been doing this that long - that I’d get interested in the navel-gazing.

What else? Strategy and tactics in the US response to transnational jihadist terror - and the alternative approach that Cass Sunstein offers, in Worst Case Scenarios, of a narrow cost benefit analysis, or the other analysis from cost benefit analysis given by Eric Posner and Adrian Vermeule - very interesting Opinio Juris forum on this - but what interests me is the implications of cost benefit analysis. It is, as Philip Bobbitt has said (he says he doesn’t recall, and the reason is that it was an offhand remark while we were walking around my neighborhood as he smoked a cigar a couple of months ago), “relentlessly tactical.”

So there are a lot of things on my mind to blog about - how much they really have to do with international law, though, I have no idea. I fear that I am going to bore - or mystify - the Opinio Juris readership.

Anyway, hope you can join us at Opinio Juris, that week and every week!

Nicholas Eberstadt on 'Graying Europe' in the Revista de Libros (Madrid)

2008-05-08T21:46:00.000-05:00

If you read Spanish, you should check out Nicholas Eberstadt’s new essay - part of a three part series - on demography in Europe. It is:

Nicholas Eberstadt and Hans Groth, El proximo desafio demografico de Europa: la rentabilidad de la salud, Revista de Libros (Madrid), No. 137, May 2008.

The Revista de Libros website is here (although NIck’s article is not available online). Nick is one of the world’s leading demographers, and holds a chair at American Enterprise Institute here in DC.

I regard the Revista as the finest Spanish language literary review - the equivalent of the New York Review of Books, the TLS, or the London Review of Books. It is such a pleasure to read, both for the prose in Spanish - but equally for the intellectual and cultural breadth. Of course, I have a certain bias. I started reading the Revista while on sabbatical in Spain four years ago, and got hooked. Eventually I found myself in contact with the review, was delighted to have a piece of mine from the TLS published there, and ... well, I am proud to say I am the coordinador de ciencia politica for the Revista - roughly the editorial advisor on political science.

All that said, I am late, late, late with a review of my own for the journal, a review of Paul Kennedy’s history of the United Nations, Parlamento de la humanidad.

Private equity equals 'proxy for the credit markets'?

2008-05-06T22:22:00.000-05:00

This Financial Times comment, “Private equity boom was nothing more than a clumsy trick,” dates back to March 31, 2008, by Michael Gordon, but having finished teaching my private equity class ten days ago, and sitting and reading papers from the 70 or so students in that class, I am pretty much convinced that this is the case. (For those of you who occasionally look at this blog for law of war and public international law, etc., my day job is actually corporate finance and international business law professor.) Excerpt:

So now we know. The boom in private equity, which was promoted as the superior business model, based on patient capital, superior management and an alignment of interests, was nothing more than a trick of financial engineering – and a clumsy one at that. The magic of leverage works both ways, as we are discovering.

Henry Kravis of Kohlberg Kravis Roberts is asking his investors to be patient after a bout of negative returns and writedowns, echoing the cries of Alan Bond and other entrepreneurs of earlier credit cycles. Hamilton James, Blackstone’s president, said at the Super Returns private equity conference on February 26: “We’re a proxy for the credit markets.” David Rubenstein, co-founder of Carlyle Group, recently asked whether “modest return” was a more apt name for private equity. He thinks it’s funny. It’s not.

As investors are increasingly bruised by the recognition that reality has once again triumphed over hope, the private equity barons are having to confess that the benefits of superior management, alignment of interest and, of course, the superior reward structure counted for very little.

Many of the private equity deals look no different from Yell and other highly leveraged public companies. As Warren Buffett notes, when the tide is going out, we find out who has been swimming without their shorts.

Sometimes a simple observation can prove an important point. In November 2006 Citibank published a research report that highlighted how private equity returns could be achieved by just leveraging basic stock market indices. It is a seminal note. “How do they do that?” asked the report, and then went on to provide the answer.

By leveraging the basic stock market indices by three to one, Citibank pointed out, returns could exceed even the best historical private equity returns. Never mind that as they were spellchecking the final version of the note, leverage on that season’s deals was reaching four to one and even five or six to one.

As Citibank pointed out, the private equity barons would always emphasise alpha over beta – their ability to outperform a market rather than merely ride the market wave – but it showed clearly that leveraged beta was where the returns were being generated.

My view is a pretty traditional one of private equity: that it is one end of the oscillation between public markets (characterized by weak control, leading to agency problems and inefficiencies, but relatively cheap cost of capital) and private equity (characterized by strong control, alignment of agency interests, but relatively high managerial costs to achieve gains). Firms move back and forth between those two points, or are threatened implicitly, or the market is threatened implicitly, with movement via buyouts and resale back into public markets. Superior management pays off at one point in the cycle; cheap capital at another. A pretty traditional view.

But after the Fed shovels so much capital out the door, then the business model is transformed from that into simple leverage. As Gordon, quoting Citibank, says, leveraged beta triumphs over patient alpha when the money is easy. So, as Hamilton James says, private equity is just a “proxy for the credit markets.”

For this, you get gigantic fees and a big premium? So much rent-extraction from the conveyor belt moving money out of the Fed? Remind me again what super-duper skill set it takes to take money from Ben Bernanke?

'Lawfare' as illegal behavioral counters to superior military forces, and the limits of technological responses to it

2008-05-05T10:09:00.000-05:00

A very considerable amount of weapons technology for war-fighting today is aimed at greater discrimination in targeting. It can be obtained in very different ways - better intelligence gathering for the sake of targeting, avoiding ambushes, the use of robots and remotely controlled platforms, greater precision in firepower, and many other things. These are very good technologies to develop for their own sakes.

But, likewise to a very considerable extent, these advances in technology are aimed to compensate for the fact that the enemy, the other side, fights by means of violations of the laws of war jus in bello. An enemy indifferent to the laws of war can counter advances in war-fighting technology by finding new ways to violate the rules of war faster than we can develop new technologies to address them. Behavior can generally change faster than technology, and bad behavior can usually outstrip the rate of advance in adaptive good technology.

One way to define ‘lawfare’, in fact, is systematic behavioral violations of the rules of war, violations of law undertaken and planned through advance study of the laws of war in order to predict how law-abiding military forces will behave and exploit their compliance; and where such violations are intended as a behavioral counter to superior military forces, including superior, yet law-compliant, technology and weapons systems.

Understood in this way, lawfare is not merely particular violations of the laws of war and particular war crimes, such as illegal use of civilian shields or the failure to wear uniforms or distinguishing marks, etc. It is conceptually, if not legally, perfidy. It seeks illegally to induce an enemy to rely for its safety and the safety of civilians upon the laws of war in order to attack through violations of those self-same laws of war.

(’Lawfare’ is used in other ways and contexts, but this is the one that is primarily relevant to the battlefield.)

Robot war spiders

2008-05-04T21:28:00.003-05:00

My research assistant Marc found this mock-up of a robotic intelligence gathering spider. (Not yet real.)

British defence giant BAE Systems is creating a series of tiny electronic spiders, insects and snakes that could become the eyes and ears of soldiers on the battlefield, helping to save thousands of lives.  Prototypes could be on the front line by the end of the year, scuttling into potential danger areas such as booby-trapped buildings or enemy hideouts to relay images back to troops safely positioned nearby.  http://www.dailymail.co.uk/pages/live/articles/technology/technology.html?in_article_id=563786&in_page_id=1965

'New Class' theory and a new intellectual project for the American center-right?

2008-05-04T12:06:00.000-05:00

I come to center-right conservatism via the left. That makes me a neocon on one definition: the intellectual who starts out left and moves right. It is a movement somewhat akin to Christopher Hitchens’ drift, I suppose, although I never embraced Trotsky or anything that far left. But it also means that I haven’t spent the last twenty years raised on Russell Kirk or Michael Oakshott or Leo Strauss or anyone, really, other than Edmund Burke and Milton Friedman. I was busy reading Rawls and Dworkin and Marx and &tc., &tc.

But when I think about my own rightward movement, it is essentially the same, general rightward drift of a certain set of my fellow Telos editors from the 80s-90s – the late, great Paul Piccone, Russell Berman, the new editor, Fred Siegel, Jean Bethke Elshtain, among others, in which a big motivation was analysis of what was understood as the ‘New Class’ and the ‘wholly administered society’. (There was another argument that revolved around left and right interpretations of Schmitt, but I was not so interested in that.)

What I suggest below is, in one sense, and one may as well start by saying it, quintessentially neocon – arrogant leftwing intellectual hijacking of the right’s project and turf. But, possibly, it is also part of a plausible new project for the center-right, one that goes beyond the admittedly crucial concerns of national security and war, and which connects the security concerns of 9-11 to a larger and, in my perception, widely shared view on the American center-right, that the more fundamental category, even for national security and current wars, is about the meaning of a large democratic sovereign state and the identification of its people as citizens and members of a particular society. It is not everything, not a comprehensive project, agreed. And it perhaps inevitably trends toward a (undogmatic) libertarian conservatism, an optimistic conservatism, and a very American conservatism, as distinguished from social conservatism, pessimism and declinism, and European-style reaction. It is an economic program mostly by implication, and it is not inherently socially conservative. Anyway, it seems to me largely beyond dispute that the center right is in need of a new and positive (rather than simply anti-) self-conception and way of defining its agenda.

Roughly I propose the question of elites and their relation to the rest of America in an economically globalized age. Taken a certain way, this seems like a very lite-weight, insubstantial, gossamer-thin question about ‘leadership’ – one that looks a little too much like business self help books, ‘7 qualities of effective leaders’ and all that pablum.

But one might undertake this, however, as a genuinely robust analysis of the problems of the increasingly fraught relationship in America between governing elites and the governed in a globalized world, in which elites are increasingly disconnected from those they purport to govern, but who, in order to obtain political power in a democracy, affect forms of populism and authenticity. The practical problem is how to have elites that are sufficiently connected to those they govern while not losing their qualities as elites. It is a particular discussion for the right because the right has not formally given up the open commitment to elites in the way that the left has (dishonestly, however, because in actual fact the left has a very particular commitment to globalized elites to manage American masses for their own good, but one which it increasingly understands is unpalatable among the unwashed mass of Americans and a political commitment which it has difficulty directly admitting). The left thinks it has solved the connection problem by identity group politics and the management of the masses through the ideology of multiculturalism: the trinity, and strictly defined hierarchy of race, gender, class. The right, however, still believes that a society needs elites as such - rather than the left’s vanguard class or vanguard managers - and that those American elites need to be formed and committed to democratic society as such and a democratic society - American society - in particular.

This gap between left and right over the formation and role of elites has large implications for the notion of nation-state, cosmopolitanism, and the things Philip Bobbitt talks about re ‘market states’ in his brilliant new book, Terror and Consent. How do you have the cosmopolitan virtues of the market state while still maintaining the social capital that enables such a market state? These are questions that carry me, at least, back to Christopher Lasch and Philip Rieff, New Class theory, the therapeutic state, and the ‘administered society’. The dangling issues are the globalized economy, on the one hand, inviting elites away from their own societies, and multiculturalism, on the other, offering elites an ideology for the management of the social conflicts of identity politics.

These questions are large enough to define a certain ethic for a center right that seeks the benefits of a globalized world but which nonetheless sees the democratic nation state as the repository of the social capital – the social trust relationships, the social institutions of the rule of law, and so on – that makes that global economy socially sustainable. What kinds of elites does it take to run, maintain and extend that kind of world? How cosmopolitan can they be? How much can they find their training and values purely through pure cosmopolitanism and what appears increasingly to be the only truly universal language of our world - finance? What does citizenship mean? As political actors, what connection should they have with those whose lives they effectively run? Does it make any difference that the loose citizenship affiliations of the elites of the market state seem to apply mostly to the post-industrial Western world, and that nationalism is a driving force in, for example, China – no cosmopolitanism there – and that quite different models obtain in China, Russia, India, etc.?

This was a bigger discussion in the mid 1990s than it is today, as a matter of domestic American society - but it seems to me of growing importance, the transformation, in an economically globalized world, of elites into today’s mobile, market driven experts. In 1996, I wrote a long review essay for Columbia Law Review on New Class theory in connection with reviewing Anthony Kronman’s 1990s book on unhappy lawyers, together with Lasch’s final book, Revolt of the Elites and a wonderful book of sociology of the New Class, Steve Brint’s In an Age of Experts. The last half of my essay lays out an argument about New Class elites and lawyers, and how professionals such as doctors and lawyers who used to form the leadership elites that British socialist reformers such as RH Tawney saw as a crucial leadership class, if rooted in particular communities, instead have opted for market returns that have, however, caused them to uproot from particular communities, giving up social and authority for fluid, market-based expert pay. I haven’t been thinking about that for a while, but I think it might be time to return to it and update it.*

Is this really about the renewal of American conservatism? Is it large enough for that? Or something quite different? Is it really a form of small-l libertarianism, not conservatism? Heck if I know, but although once upon a time I might have looked for this kind of thing from the left, those days are long since gone.

*
“The new elites are in revolt against the burdens of leadership because those would require becoming part of these communities and would put some restriction on their mobility. It would require that they talk with the masses and not simply to each other as experts. The old elites wanted to be the top of the communities in which they had grown up; whether to lead or dominate, to serve communities or exploit them, at least they understood themselves as having a place in them. The new elites, by contrast, want no connection; they understand that power is elsewhere, money is elsewhere, and mobility is everything; if indeed they have to live somewhere, it will be if at all possible in a wholly private, gated community. Yet simultaneously they want politically to dominate.

The New Class pushes its mobility to absolute limits, launching itself into what it imagines is a global society conducted in the jet stream made weightless by the complete mobility of capital, but with devastating consequences for those left behind on the ground. For those who cannot fly, there is first, the administration of life by these same elites and their hirelings, the authoritarian, bureaucratic formations which, to be sure, express themselves alternately in soothingly therapeutic psycho-babble or communitarian slogans of the common good or assertions of new and endless rights and, second, economic insecurity in the midst of being urged to greater self-esteem.”

(From my 1996 Columbia Law Review essay. Notice that I have not mentioned here Obama, Clinton, or McCain. But the above concerns do not seem to me irrelevant to current arguments in the midst of the presidential election campaign. These are notes, by the way, for a forthcoming essay for Nomos on conservatism.)

Against Libel Tourism ... Floyd Abrams in WSJ

2008-04-30T07:04:00.000-05:00

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.

Ian Fleming and the TLS

2008-04-28T20:34:00.000-05:00

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.

Peter Bernstein interview in WSJ on economic crisis

2008-04-26T07:30:00.000-05:00

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.)