Monday, May 28, 2007

Logic and learning to write an expository argument

My fourteen year old daughter is, as befits a DC child (I suppose), interested in politics. At the dinner table the other night, we were talking about some issue or other, and I asked what her view was and why. I was surprised to find that rather than formulate an argument and a position, she talked about metaphors.

I was surprised, because, unless you thought of a metaphor as something like an argument from analogy, metaphor was not really a way of forming an argument toward a conclusion. So we started talking about different kinds of issues, and I was increasingly perplexed to realize that she automatically reached for categories of analysis that she had learned in her English classes appropriate to analyzing literature - metaphor, mostly - as the categories of argumentation.

I have been thinking about that ever since, going over her curriculum up through the 8th grade a bit, and have realized that nowhere in her school curriculum does anyone teach, in any subject, the basics of logical argument. This is true of her school, National Cathedral School for Girls, but it is equally true of the school she will attend next year, Sidwell Friends, and I am pretty certain this is true of all the public and private schools around.

Consider the forms of analytics found in her different classes:

In English, they learn the figures of literature, metaphor, simile, and so on. The effect, at least through high school, is that they do not learn to form an argument to a conclusion - instead, they learn to identify devices in literature - a wholly different enterprise, and one which depends for its subject not so much on argumentation as the ability to apperceive a usage. (Leave aside the fact that they have done very little actual writing over the course of the last two years at her school.) The idealized subject matter itself is about the analysis of novels and poetry and the occasional Shakespeare play.

Strikingly, too - I draw on a very interesting Althouse post - they read in these classes no nonfiction, no essays or nonfiction prose - and that seems to continue all the way through high school. This is a curious omission - because, so far as I know, learning to write is partly the imitation of a "voice" - and the discovery of one's own voice - and, for me at least, and everyone else I know of who writes, the discovery of that voice comes from reading nonfiction and identifying with a certain voice. I have a pretty good sense of who those voices were in my adolescence - essays by Albert Camus, the marvelous Aldous Huxley preface to the second edition of Brave New World, Orwell. I could hear their voices in my head. I don't think that would have happened had I limited my reading to fiction, poetry and plays. In other classes, the nonfiction, such as it is, consists of textbooks written by curriculum committees having in mind the requirements of the states of Texas and California - there is a voice(s), but not one to imitate.

In history and social sciences - my daughter has just completed a genuinely marvelous American government class that would have taxed many college students. I mean, a spectacular class with a spectacular teacher. Tell me another 8th grade class in the country that could give a paragraph explaining Youngstown along with 30 or so other major Supreme Court cases? Nonetheless, despite an admirable emphasis on original documents, starting with the Constitution, the class did not teach the basics of logical argumentation - premises to conclusions. It sort of took it for granted, and went ahead with college level substance and material.

Science at my kid's school was, again, excellent, an inspiring teacher and fabulous curriculum in earth sciences. It taught a certain form of argument, but all of it was what you would expect and want in a physical sciences class - argument in the inductive scientific sense, the formation and testing of hypotheses. Great stuff, essential stuff - my kid knows the difference between a dependent and independent variable. But the form and circumstances of argument are all scientifically inductive - not deductive, premise to conclusion.

Math. Well, in one sense it is teaching deductive argumentation, particularly in geometry - but in a form so specialized and so technique oriented that it doesn't travel to other subjects. In any case, even geometry has moved away from formal proof to techniques that - very sensibly - start to provide the basis for calculus.

The result is that my daughter does not have a clue how to do something that is basic and essential to intellectual work in every field - offer a proposed conclusion and derive it from premises. It is crucial to reading any serious nonfiction work in pretty much any field - and yet is not something learned by reading stories with an eye out for the identification of literary tropes. And deductive logic, too, is critical to much of economics.

Long and short of this is, I have convinced my (more or less willing) kid to take some lessons in logic this summer. There doesn't seem to be a class at the local universities, but I've found one of the math teachers willing to do it - not a lot of sessions, but enough to get started on both basic Aristotlean logic, verbal logic of syllogism and fallacies, on the one hand, and very, very basic symbolic logic aimed finally at computer languages on other, and having a clue as to why term logic is finally inadequate.

The problem is finding a book that is basic and slow enough for a kid who is verbally gifted, does okay with math but has to approach it very systematically - I am thinking about the old Kalish & Montague, second edition that has more problem sets and more explanation of the problem sets. It seems to move more slowly than the coomputer science oriented texts. Any suggestions welcome. In the course ten or twelve sessions, I'd be happy if my daughter learned the verbal basics of premises, conclusions, validity, truth, soundness, etc., and how to look for and identify them in a written text, and the very basics of the idea of symbolization - not, and, or, if, if and only if. Not even get to truth tables.

(Update: Kalish and Montague just arrived, and it seems like a good place to begin. The preface says that it is about teaching a skill, and is not aimed at presenting the fundamental debates underlying logical systems. And it moves more slowly than the more current texts. However, for a junior high schooler, it still moves too fast - I think the tutor can work with it, but needs to come up with a lot of extra problem sets - and realistically, just getting through verbal, natural language fallacies, syllogism, and then symbolization in chapters 1 and 2 is still too much.)

Put another way, the school curriculum seems as though students were equipped for argument with Aristotle's poetics - but not with his logic. Certainly he would have been surprised.

Steve Vladeck joins the (my) WCL faculty - welcome Steve!

Now, I'm not saying that the dean and our faculty did a little victory dance when Steve Vladeck agreed to lateral over and join our faculty at Washington College of Law - but I'm not saying we all didn't, either.

We are really, really pleased Steve is joining us - he adds a great deal to our traditional strength in laws of war and human rights (Bob Goldman and Diane Orentlicher, et al.), our human rights clinic (Rick Wilson and Muneer Ahmad), our summer human rights academy (Diego Rodriguez and Claudia Martin), our programs with the Interamerican Court of Human Rights (Dean Claudio Grossman), our existing strengths in national security and military law (Dan Marcus and Gene Fidell, et al., and then federal courts people like Amanda Frost writing in national security related matters) - well, we have a lot going on in these areas. And I'm going to embarrass myself because I have named only a few of our faculty involved in these fields.

Although, as readers of this blog can tell - the happy few - I write a lot in these areas, I actually teach in the business and international business areas. I teach a seminar on just war theory, but generally my courses are international economic law, corporate finance, private equity. I also have a large interest in international development and development finance - eg microfinance - and a large interest in nonprofit and NGO law, domestically and internationally, the tax side but increasingly even more the non tax aspects such as corporate governance of nonprofits and the financial aspects (both raising money and disbursing it) by nonprofits. My current plan is to develop a mini program on nonprofit law here at WCL.

Call for papers on domestic role of US military for AALS conference

Call for Papers: Domestic Role of the Military

The AALS Section on National Security Law has issued a call for papers on the topic of the domestic role of the military (broadly understood), in connection with the January 2008 AALS annual meeting in New York.

The details are available here, at National Security Advisors blog:

Very important, very current topic.

International Law Reporter Blog

I've mentioned this before, but if you haven't had a chance to check out Jacob Katz Cogan's International Law Reporter blog, here, it is well worth it. It is great to have all the current international law stuff in one easy place. Thanks, Professor Cogan!

Best wishes on Memorial Day 2007

Best wishes on Memorial Day, and our thoughts and prayers to those who have lost loved ones in the military or whose loved ones have suffered injuries. We don't go anywhere on Memorial Day weekend - my wife and daughter are in the last week of school, with final exams and graduation, and it is an incredibly busy week around here.

Saturday, May 26, 2007

Notes on how we do international law scholarship (post 0 of 4)

I've put up four continuous posts below that are all on the question of how we do international law scholarship, how it is evolving and changing and where it should go. These are purely working notes for a panel at the AALS/ASIL midyear meeting next month in Vancouver. I will be on a panel on this subject moderated by Jose Alvarez, president of the ASIL, and Ruth Gordon, Tom Ginsburg, and Richard Steinberg. My notes probably overemphasize two things at least - the location of shifting international law scholarship within broader shifts in the academy, and the sense of acrimony and friction as liberal internationalism has faced some challenges within the international law academy. I likely overstate those two. Plus there are important things I ignore - particularly the spillover of theorizing from international economic law, such as law and the WTO - and their effects on how we do academic international law. But, for what it's worth, these are my working notes for the Vancouver discussion. Very much first draft, and I will probably change my mind or at least degree of emphasis about various issues.

Methodological heterogeneity and the larger intellectual setting of international law scholarship (post 1 of 4)

Heterogeneity and the “two cultures.” (This first post won't have much to say about international law scholarship, I'm afraid. It seeks to locate shifts in international law scholarship against the larger intellectual backdrop of the academy and the legal academy, and so starts elsewhere than international law.)

Like many in the field of academic international law, I have been struck during the past decade by the increasing methodological, intellectual, and ideological heterogeneity that has begun to enter our field. Arguments from sovereignty, rationalism, neo-conservatism, empiricism, neo-marxist anti-globalization neo-imperialism counter-hegemony theory, rational choice, feminism, IR theory, from ... well, where did all this new stuff come from, and what is its influence in an academy hithertofor comfortably ensconced largely in a method of prescriptive moralizing as law (even if sometimes wrapped in plain-vanilla doctrinal lawyering) in support of an ideology of liberal internationalism?

At the same time, however – and again like many others in the field – I am struck by the fact that this heterogeneity is actually late in coming to international law. Waves of new methodologies, intellectual orientations, and ideological diversity have come to many other fields of law long before now, decisively reshaping those fields decades ago, and long before they have barely begun to seep into international law scholarship. That conjoined observation – the arrival of heterogeneity, but late, comparatively – asks for its own explanation.

It is possible to overstate the heterogeneity, and I am sure I sometimes do, as someone fundamentally interested in seeing the field open up. For one thing, the intellectual diversification of the field of international law is almost entirely a phenomenon of the American international legal academy. I, at least, see little evidence of it elsewhere, in Europe, or in the rest of the world. There are complex reasons for that divide, I would guess – a much greater methodological commitment, for example, abroad and in Europe to international law in a positive law framework (particularly the methodological sense among many that positive law is a “scientific” approach to law, rather than something that requires external, particularly social science explanations); a fervent if sometimes intangible belief in Europe that the experience of the EU bears lessons for the world as a whole; fewer scholars outside the US entering the field with the new gold-standard qualifications of economics and social science; and a greater ideological commitment to liberal internationalism for which positive law approaches can have the tendency methodologically to assume the ideological conclusion.

Part of the answer to the “lateness” question is likely the fact that the field is not dominated by Americans, and hence is much slower to respond to intellectual movements within the United States legal academy. That includes a certain resistance from Europeans and others outside the United States, who see, among other things, the tendency (I am cribbing from Jose Alvarez) of American scholars to see international law as policy as a way of shortchanging its positive law obligations. On the other hand, seen from the perpsective of the rest of the American legal academy, academic international law in the overall American legal academy appears as a sort of “soft target” for scholars who have honed a method – law and economics, rational choice, etc. – elsewhere in law and who, in international law scholarship, see an unplowed field. Would not Eric Posner, who is a fine and plain-spoken fellow, likely agree? To which the response is, well, to a hammer everything looks like a nail. And then the replies and counter-replies: but it is in any case a very American argument.

These movements in United States international law scholarship also partake of much larger intellectual movements, in law as well as the still larger academy. I mention them only in passing because they raise matters too large deeply to consider – yet it is important to keep them in mind, even if they do not appear directly to bear on international legal scholarship.

C.P. Snow famously wrote, now fifty years ago, of the development of the “two cultures” of science and the humanities, and their tendency to become ships passing in the night. There is some reason to think that today we are seeing a repeat version of that. Only it is not the divide between the sciences – the physical sciences and technology – and the humanities that yawns increasingly today, but instead the divide between the social sciences and the humanities. For many and complicated reasons, the center of gravity over facts and facticity, knowledge and even truth, has shifted from the humanities – in part because of the post-modern retreat of so much of it from claims of universalism – to social science, led by the upsurge in the prestige of economics. (Part of the upsurge in the prestige of economics as a deliverer of "truth," to be sure, lies in the pragmatist shift in how truth is understood, to become something closer to a pragmatist view of truth as "facts," in a "local" sense - but moving along, though this point is far from unrelated to legal scholarship today. Post-modernism in the humanities, for its part, might, I suppose, be right – but right or not, the effect of its method has been the systematic sawing off of the branch that the humanities sits upon insofar as these fields claim to be revelatory of broad truths about human beings, as Zygmunt Bauman once put it.) Nature and intellectuals, however, abhor a vacuum. The social sciences have moved to fill that gap – even if, to be sure, the things which are measurable by the methods of the social sciences, through surveys, public health statistics, etc., are not necessarily the things we would want to measure in order to understand what used to be known as the human condition.

Why raise something so large and speculative and unapparently unrelated here? Well, to the extent this is true, our own intellectual field, law, stands squarely at the gap, with a foot on each side, as it yawns, however, farther and farther apart. Again, law-at-the-gap is a peculiarly American phenomenon, for the accidental reason (in part) that law school and law professors require an undergraduate degree, but in potentially any subject matter – altogether different from most of the world. Our intellectual backgrounds come from the humanities, social sciences, hard sciences, the arts – and our intellectual predispositions are often interdisciplinary, for this is precisely what brought many of us into the American legal academy rather than remaining to specialize in our undergraduate fields. (That, and the higher pay.) We straddle the divide and make an effort to straddle it, to keep a foot in each camp. Yet it becomes harder and harder over time, as fields and discourses advance and become more specialized. The gap yawns and widens.

Not exactly news, of course. In that process, however, momentum in the legal academy has clearly been with the social sciences, led by economics. When I was a law student in the early 1980s, philosophy was the backbone of the intellectual project of law, but even at that moment, the mantle was passing to economics. Philosophy, especially moral theory, retains very considerable importance, but it is now conjoined with economic and empirical and social science thought within the field of jurisprudence – see, e.g., the explicitly interdisciplinary work of Larry Solum and Brian Leiter – and it is no longer so clearly the prestige intellectual driver, the prestige foundational field, of the legal academy that it once was. Other parts of the humanities, particularly insofar as they have been absorbed into post-modernism, have effectively retreated within the legal academy into their own sub-worlds – cultural studies, law and literature, etc., all interesting subgenres, but plainly not leading within the legal academy. Indeed, to a great extent, those fields have retreated into their own hermetically sealed worlds.

The phenomenon of the “two cultures,” then, updated to the social sciences and the humanities (and the humanities represented here, in our world of international law, as the assertion of values, moral discourse, idealism, and legal prescriptivism embodying all that) is finally coming to the field of international law, at least in the United States. Long present in the larger academy, long present in the legal academy, and finally arriving in international law scholarship. And this is the American debate, quite apart from the debate with the rest of the world over the intellectual place of the project of positive international law. It has been going on for the past fifteen years, but the pace has been accelerating.

Why should the pace accelerate? There are potentially lots of reasons, ranging from the snowball effect to shifts in how younger scholars are trained and what they are interested in. These effects finally catch up to international law scholarship for the same reason that Einer Elhauge, for example, has just produced what is in essence a comparativist textbook on competition law, even though he would not describe himself as primarily an international law scholar – globalization has made international and comparative law a natural necessity across many, many fields, especially in areas of economic law. All of these answers could be true in greater or lesser degree. I want to focus on one, however – partly for its own interest and partly because it illustrates a larger issue. It is the intersection and dissection of method and ideology, but first I will say a word about ideology separately.

Method and ideology in international law scholarship (post 2 of 4)

Ideology and acrimony. Jose Alvarez, in a discussion about international law scholarship at the upcoming Vancouver ASIL-AALS meeetings (at which I will be a panelist, and which all readers of this blog should attend!), asks what is wrong, as well as what is right, with how we do international law scholarship today. I will say in a moment, below, that much of what is wrong with comes from confusing matters of method and matters of ideology, and from assuming that one necessarily establishes the other. Much of the confusion, and confusion fueling a certain acrimony within current international law scholarship arises, it seems to me, from the failure to distinguish the two.

Yet there is also a certain amount of “natural” acrimony that arises any time an old guard, in this instance liberal internationalism, has to contend with the emergence of new normative movements, such as, in this case, democratic sovereignty. I recall the peculiarity, a few years ago, of being at a conference deliberately devoted to debating democratic sovereignty. A very senior faculty member at the host institution, who had declined the invitation to take part, remarked to me out in the corridors that we inside were dinosaurs, debating issues that had long since been settled in international law in favor of liberal internationalism. There was a certain irony since, with one or two exceptions, including me, everyone else at the conference was a mere youngster in the academy: the word he wanted, perhaps, was not dinosaur, but reactionary, but even that would not be precisely accurate, for the reason that neo-conservatism was many things, but reactionary was not really one of them. Part of the acrimony stems from the rise of a new school, in the time honored fashion of the academy, but with the special acrimony that attaches to a project that is not merely intellectual but moral.

That specific ideological acrimony has lessened as the years since 9-11 have lengthened. People have got used to having a certain amount of intellectual and political disagreement as part of what used to be far more a largely closed club of the thoroughly like-minded. The collapse of the neoconservative project, too, has somewhat taken the teeth out of the democratic sovereigntist movement – always fairly marginal anyway – within the US academy. That collapse has also perhaps permitted a reinvigoration of the liberal internationalist project, and certainly the sense that it is no longer under attack – having had, for the first time in living memory, to defend itself intellectually – and that it is, within academic circles, firmly back in the driver’s seat. Within the ASIL itself, the convergence of so many scholars from abroad has tended to dilute methodological debates that mostly resonate within a specifically American academy. One can perhaps sense this general relaxation at ASIL annual meetings these days compared with a few years ago; Peter Spiro remarked in passing at Opinio Juris a few months ago to the effect that the sovereignty moment had passed and the pendulum was now swinging back, and about that within the academy, I think he is right.

Method and ideology. But there remains an increasing intellectual confusion, and with it some friction, in the conflation of ideology and method. One way to express it is this. For many years, Anne-Marie Slaughter and a few others argued for reaching to IR social science paradigms as a means of arguing for liberal internationalism and, more recently, global network theory. Yet despite Slaughter’s preeminence in the international law field, and despite a certain kind of seepage of specifically IR theory (more specifically still, Robert Keohane’s political science) into international law scholarship, the primary take-away from social science in international law scholarship, as perceived by the international law academy in the United States, has been the assumption that to argue from basic law and economics methodologies such as rational choice theory is to argue as a matter of ideology against liberal internationalism and for some version of state sovereignty. (I think this is right. And one of these days I will do the work necessary to back up this assessment of international legal scholarship!) The assumption has been, as Oona Hathaway and Ariel Lavinbuk aptly noted in their Harvard Law Review review-essay of Goldsmith and Posner’s The Limits of International Law, that to adopt a descriptivist method entails reaching a certain and, for many, uncongenial, normative conclusion.

This assumption, I would suggest, has been predominant among liberal internationalists casting a very wary eye (despite Slaughter’s indefatigable urgings to greater methodological ecumenicism and a favorable view of IR theory) upon descriptivist, rational choice, empiricist, and other such social-sciencey ways of doing international law scholarship. And not without reason, since that assumption has also been shared by many descriptivist international legal scholars, starting with Goldsmith and Posner. It is not, to take Goldsmith and Posner in particular, merely that their personal inclinations are sovereigntist. It is, rather, that their particular descriptivist theory endorses, entails even, a sovereigntist conclusion – in other words, some versions of descriptive theory do indeed prescribe and proscribe certain normative conclusions, including sovereignty and liberal internationalism as normative positions in international law scholarship.

In the case of Goldsmith and Posner, it works this way. They argue, from a certain rational choice model, that states act from their interests (even if interests are defined to allow the inclusion of values), and that other mechanisms, such as cosmopolitanism, are not sufficient to overcome the fact of states acting from their interests (however they define them). As they set it out, liberal internationalism – as an independent causal actor – becomes something that is a causal fifth wheel, unnecessary to explain things, while state sovereignty becomes something like the “last man standing” after other explanations are ruled out or shown to be superfluous. (They do not say so, but in this regard, it is really an argument from Occam’s Razor). They may, of course, be right or wrong about this. The point, rather, is that if they are right, then their methodology – a particular iteration of rational choice theory – has, if not precisely endorsed an ideological outcome, at least ruled the most prominent one, liberal internationalism, off the table on methodological grounds alone. In other words, at least some versions of apparently descriptivist method entail ideological outcomes, and The Limits of International Law provides a good example.

But not all descriptivism entails normative conclusions in this way – indeed, most are just that, descriptive. That is, if most methodologies are independent of ideology, or not intrinsically tied to an ideology, then one can imagine a picture of international law scholarship in which there are rational choice theorists who are liberal internationalists, or rational choice theorists whose conception of rational choice leads them to liberal internationalism. And sovereigntists who get there by means of values rather than by some rationalist method. And many other possibilities. Any particular one might be right, might be wrong, but my point is that it would be a mistake to presume, walking into the department store of theory, as it were, that method and normative conclusions must all line up a certain way. They need not do so. But some of the acrimonious arguments that today go on, it seems to me, arise because we have not sufficiently carefully separated out the methodological issues from the normative issues, and we have assumed that one must automatically map onto the other. If only we were able to get past those arguments based on confusion, we could get down to the acrimonious arguments within international law scholarship that really matter.

Spatializing the representation of international law scholarship (post 3 of 4)

Spatializing the representation of international law scholarship. Let me try to put this slightly more formally, by offering a spatial model of the intersection of method and ideology in international law scholarship. [I don’t have spiffy graphics yet, so please bear with me; this also draws on earlier posts on this blog.] My goal here is not to make a normative point about international law scholarship, but instead to offer a way of representing and comparing the work of different scholars by reference to their method and ideology, in a way that plainly separates the two concepts.

Indeed, I propose to separate them so much that they become two different graphical axes.

Imagine an X axis, horizontal, representing the range of positions between what I will baldly assert is the critical ideological question of international law scholarship – sovereignty or liberal internationalism. There is a range of possible positions here, running from sovereignty as a value for its own sake, sovereignty justified by the autonomy claims of a democratic community, multilateralism among sovereigns, multilateralism that pools sovereignty, liberal internationalism, and finally genuinely global federalism. (I will not elaborate on this range here; I discuss them in a couple of earlier articles – in my review of The Limits of International Law, and in my review of Slaughter’s A New World Order.)

Now imagine a vertical Y axis, representing a range of methodological positions with prescriptivism at the top, above the X axis, and descriptivism on the bottom. Within the range of methodological positions we might put at the top of prescriptivism moral idealism – roughly the view that the content of public international law ought to be strongly informed by a moral vision of that law, whatever precisely that moral vision might be. At the bottom we might put two different descriptivist alternatives – rationalism of the kind that leads to deductive rational choice and game theory, and empiricism of the kind that leads to, for example, Oona Hathaway’s empirical work on the effects of human rights treaties on human rights outcomes.

[Clever graphical insert]

(In a full modeling, we might include a third Z axis – one corresponding to method in a different sense, not the sense of prescriptive versus descriptive, but something. That sense might be how closely, or not, methods of international law are endogenous or exogenous to the legal materials of the law itself. They might include such methods as the legal process school, positive or doctrinal legal analysis as examples of endogenous methods and, as examples of exogenous method, feminist international legal theory, various schools of IR thought that look for non-legal explanations for movements of international law, or, most strikingly, Koskenniemi’s simultaneously endogenous-exogenous study of international law as a profession, at once internal to legal thought but also exogenous in the form of sociology (some brief commentary on his work, here, plus a reference to his latest, very interesting paper on SSRN, here).

(For that matter, one might also imagine an axis that looked to whether the method in question was fundamentally legal, political or social theory in its explanatory focus, in what it took to be theoretically revelatory. I will leave aside the complications of a third, or fourth, axis in this discussion, however.)

There are important skeptical questions one might ask about these proposed axes. They have the virtue of clarifying by separating. But do they also obscure? Are these the right ways to characterize the debates over ideology and methodology? And even if they are, by setting them out as axes, they create ranges of positions – whereas these positions might not be well-represented as linear points as though in a range.

These are all legitimate questions and quite possibly fatal objections. Nonetheless, I persist with this spatial, graphical model to see if it seems to illuminate anything about the current state of international law scholarship. I feel most comfortable representing the sovereignty-liberal internationalism positions on a linear range, because that seems accurately to capture the sense that more international federalism equals less sovereignty and vice-versa, at least as sovereignty is traditionally understood. I also am reasonably comfortable putting prescriptivism and descriptivism as opposite points on a line – although it seems also true that empiricism and rationalism are really at the same point on this line on the descriptivist side. Why? Because although many people in their actual work separate the two, in fact when it comes to accepting conclusions as factual, ordinarily we want both an inductive, empirical confirmation that the world conforms and a deductive explanation that tells us why that should be so. We want them both.

If, however, even for discussion’s sake such a coordinate grid is accepted, what might we learn out of it, if anything? Suppose we think in crude terms about where we might locate one or another figure in international law scholarship. In fact we should proceed article by article or book by book, but for illustration’s sake, let’s proceed with a couple of scholars.

Upper right hand quadrant. Here we locate scholars who are both prescriptivist in their method and liberal internationalist in their ideology. For example, Louis Henkin, Henry Steiner, and Harold Koh, and a great many more besides, especially of the last two generations of international law scholars.

Lower left hand quadrant. Here we locate scholars who are descriptivist in their method and sovereigntist in their ideology. For example, Goldsmith and Posner.

[Another clever graphical insert]

Those two quadrants essentially describe the state of discussion up until the past couple of years. They also summarize much of the confusion between ideological and methodological commitments that have characterized the debate. But increasingly, the other two quadrants have much of the most interesting argumentation:

Upper left hand quadrant. Here we locate scholars who are sovereigntist by ideology but whose methodology is prescriptivist or normative. I would include myself here – someone whose argument for democratic sovereignty is essentially a moral argument, every bit as much as, say, Louis Henkin’s argument for a liberal internationalist legal order is a moral one.

Lower right hand quadrant. Here we locate scholars who are liberal internationalist by ideology but whose methodology is descriptivist. This is where much of the intellectual ferment in American international law scholarship is taking place among the younger generation – scholars who are able to engage in the discussion of IR theory, game theory, rational choice, empirical and statistical studies, but who wind up favoring liberal internationalism rather than Goldsmith and Posner’s sovereignty position. Sometimes – certainly not in all writings – one might put in this category Slaughter, Hathaway, Lavinbuk, Raustiala, Guzman, etc.

[Still another clever graphical insert]

Does this tell us anything? Well, maybe it didn’t need all this graphical machinery to do so, but at a minimum it tells us that you cannot read off ideology from method or vice-versa. And that much of the most interesting work is being done today with liberal internationalist commitments but rationalist methodology, Goldsmith and Posner notwithstanding. Which is to say, these scholars argue in effect that if Goldsmith and Posner had captured rationalism in a more sophisticated fashion that better models the real world, their results would have been quite different from what their book argues.

It also bears noting that this two axis representation likely leaves many non-US scholars wondering where, or if, they fit in this representation at all. The reason is that in order to address what, for many of them, is their scholarly method – positive law analysis or doctrinal analysis – we need to add the third axis that I have here left aside, the axis that takes into account endogenous versus exogenous explanation in international law.

Independent and dependent variables. This brings us back more formally to a problem raised earlier in connection with Goldsmith and Posner. The separation of issues onto axes, mapping of the intersections between them, does not, by itself, address the question of dependence and independence. A theory of international law, , might assert such a relationship, either one of correspondence or of causation - as Goldsmith and Posner’s does – as a consequence of the internal workings of the theory. But it might not. Hathaway and Lavinbuk, in their review of Goldsmith and Posner, call for a recognition that method and ideology are independent variables. But of course for any particular theory of international law, they might not be – they might stand, on the contrary, in a precise relationship of dependence.

The point is, Hathaway and Lavinbuk are correct to say, there is no necessary relationship of dependence or independence; it depends entirely on the internal claims of any particular theory. And again, I would suggest that some of the argumentation that takes place today within academic international law occurs because of prior assumptions about necessary relationships of dependence or independence of method and ideology, which might be true of any particular theory – or might not. The clear separation of what is at stake makes it easier (maybe) to test whether a theory of international law asserts dependence or independence, and with respect to what.

The coming rise of social theory in international law scholarship (post 4 of 4)

The rise of social theory. So the way in which we do academic international law would benefit from clearly separating out the matters at issue; a graphical representation might help with mapping out the distinct concepts. And with mapping out the claims of dependence and independence made with respect to the concepts. Maybe the graphical representations just confuse matters, though.

That said, much of the most exciting work to be done in academic international law is not precisely prescriptive or descriptive in the sense those terms are used above. Instead, much of the most exciting – and controversial and provocative – work in international law theory, at least, will come in the suggested as an alternative Z axis, above – in the form of social theory, on the one hand, and concrete sociology, on the other. The questions at issue here will be things like the social development of international elites, both theoretical and empirical perspectives – in ways that are quite different from IR modeling, or game theory, or rational choice, but draw instead on quite different traditions of social theory. And questions of legitimacy, understood in genuinely sociological ways, rather than as concepts in political and legal theory alone.

Globalization, and theories of globalization, seem to me to make this conversation within the international law academy both desirable and inevitable. When Slaughter calls for the development of global judicial elites, for example, or when Ryan Goodman and Derek Jinks talk about “socializing” toward human rights compliance, or when Benedict Kingsbury talks about technocratic global networks, they are invoking not so much political theory or legal theory as much as sociology and social theory. These views embody large, sometimes implicit, claims about the nature of the international and the global – viz., that they, or significant parts, are emerging as societies, analyzable as societies as such. Normative and factual skeptics of such claims, such as myself, are no less interested in sociology and social theory concerning these matters – critics like me tend to reach, naturally, to forms of critical social theory, new class theory, elite formation theory, in order to contest the factual and normative assumptions that lie behind the “world as society” and “global bourgeoisie” movements.

This is a desirable shift given the way in which arguments over globalization and the norms of globalization are progressing – but one which is quite different from the more obvious, long overdue “invasion” of academic international law by law and economics, social science, rationalism and empiricism. Method and ideology are going to be involved in arguments in the future that are substantially different and much more complex than even the current movement to bring academic international law into the mainstream of American academic law through the application of social science techniques. And that is all to the good for how we collectively “do” international legal scholarship.

(There remains a further discussion about the role of doctrinalism in international law - the role of positive law, doctrinal analysis, the methodological commitments both implicit and explicit international law in particular. Peter Spiro at Opinio Juris, here, draws such a discussion specifically about international law scholarship into a broader discussion initiated by Einer Elhauge, guest-blogging at Volokh, here, and see responses by Larry Tribe, Jack Balkin, and Orin Kerr. But I will let that discussion rest - for the moment.)

Sunday, May 20, 2007

Grill skills

We pause for a moment on this blog in stunned admiration of my zen grill skills. The roast pork, whole roasted tomatoes and enormous Vidalia onions, and whole pineapple glazed in amaretto and turbinado sugar and a little vinagre de Jerez. Actually, I scattered a little glaze of turbinado sugar onto the pork, too. The green salad was thoughtfully provided from my neighbor Dorothy's lettuce garden.

Congratulations to WCL graduates!

Today is graduation at Washington College of Law, American University, where I teach. I'm about to head over to the ceremony. My warmest congratulations to my students and all the WCL students graduating today, their parents and friends and family who have come to join them.

Summer for me consists of finishing some very overdue manuscripts - my UN reform short book manuscript, in particular. I'm also teaching in the WCL London-Paris-Brussels-Geneva program for a couple of weeks in June. I do the international economic law part, which takes place in London and Paris. Then in July I'll do another WCL international economic law short course, in Santiago, Chile, which I plan to do in Spanish, so wish me luck! Although in some ways, talking about finance in Spanish is easier than many more mundane subjects, because there are so many close cognates.

I also want to finish a couple of TLS reviews this summer, one on immigration, assimilation, and citizenship, and another on microfinance and international development finance. My American University International Law Review essay on neoconservatism, Goodbye to All That? has remarkably made the SSRN current top ten list for law articles - who would have thought there would be that much interest (and maybe there isn't, once actually downloaded - "downloaded," of course, does not mean "read"). I have a talk in essay form on (really an attack on) the "new liberal realism" coming out in the Fordham International Law Review soon, but that is complete. And my Fukuyama review from the TLS is coming out in June in the Madrid Revista de Libros, which makes me very, very happy and proud - I used to read the Revista back on sabbatical in Spain a couple of years ago sitting in the cafes of Sevilla (accomplishing much less academic work than originally planned, but that is the Seville-effect) and sometimes thought about contacting the editors to see if I could submit something, and via the TLS, here we are. Luis Gago at the Revista has done a translation that makes me sound so erudite and intelligent that - well, I blush.

So that's what I'm up to at this moment. Now to put on a coat and tie and head over the WCL and see my students and all the students march in and ... graduate! Congratulations!

Thursday, May 17, 2007

Wolfowitz on Thursday, May 17, 2007

(Whoops, as I write, Wolfowitz has resigned - WaPo evening breaking news story here. For those, especially at the Bank, who think this signals a new day dawning for the poor of the world, well, call me unimpressed. Why was it again that we need this institution?)

(See my earlier posts here (on Sebastian Mallaby defending the mission of the Bank), here (on the Bank mission and the Bush administration), here (my piece in the Financial Times criticizing the Bank's ethics committee) and here (responding to criticism on my Financial Times piece), and finally here, (arguing that the next US administration, rather than take on issues like Bank reform, will simply opt for "meek multilateralism," the go-along, get-along approach of the early Clinton administration).)

(ps. Welcome instapunditeers and thanks Glenn! I've corrected the grammar in a couple of places, and improved it in a couple of others, including some bits that Instapundit was kind enough to quote - I don't think I've changed the meaning.)

Of the main press stories out there in the Thursday, May 17, 2007 papers ... the Wall Street Journal news story on the front page is the best and most detailed, shows actual familiarity with the documents, reports, board reports, and does not seem merely sourced to inside sources with their own agendas at the Bank, the administration, or elsewhere. It's not that inside sources are unhelpful - but if you haven't read the underlying documents, then as a reporter, you can't really know how you're being spun, and it is 100% that you are being spun. Unfortunately, the story is behind the subscriber wall.

Bret Stephens has an opinion page story on yet another of the many ethical lapses at the Bank - yes, yes, Mallaby tells us that the Bank is no more corrupt than other international organizations, but isn't that damning with the worst kind of faint praise? - open link, here. It is about allegations of an affair by Thomas Scholar, an official of the Bank.

It isn't surprising, by the way, that so many of the ethical issues at the Bank and other international organizations involve sex. International organizations, in light of their long questionable practices concerning promotion of women and other gender issues, were forced by feminists, many of them Americans, to adopt sexual harassment and related policies which, while standard at American corporations, nonetheless have never culturally been taken on board by the rest of the world even as they mouth the proper form of words. One might hope that the kind of gender issues involving the UN and international organizations wouldn't so frequently be, for example, twelve year olds being prostituted by UN workers in Africa, but, well, there you have it. The official response is the twinned one of announcing "zero tolerance" of child abuse and rape (never, of course, actually followed) and a call for everyone to adopt a "gender perspective" - take a look, for example, at the September 2005 General Assembly UN reform document - every other line, more or less, calls upon everyone to adopt a "gender perspective" as a cure for everything from child rape by UN staff in Africa to AIDS. Seems as unlikely in the former as the latter.

One of the many ironies in the Wolfowitz affair, however, is that in many respects, the target of the Bank staff seems to have been as much Riza as Wolfowitz - she is a true believer in feminism, and as a true believer, she seems to believe that so many, many things can be traced back to misogyny - and, as a true believer in misogyny, was more than willing to throw fits to get her way by playing the gender card. She deserved, in my view, her raises as compensation for the ending of her career at the Bank, and an institution which makes as much out of gender equity as the Bank theoretically does should be prepared to have its staff demand that it do so even if, to someone outside the institution's official ideology, it constitutes playing the gender card. It seems clear enough that Riza played the gender card on the compensation issue, because she was known for playing the gender card everywhere. And everyone, starting with the Ethics Committee and the human resources department, seems to have preferred to avoid her rather than face a scene. In important ways it was the unwillingness even to face, even to have a meeting with, an angry Muslim feminist whose career, after all, was being sacrificed on the altar of her paramour that is a central reason why that political hack (now hacking away at UNDP, but then the two deserve each other) Ad Melkert would not meet with her and dumped the whole thing back on Wolfowitz. Back in those days, compared to a scene with Riza, it seemed like a good way to handle it, stuff it into the shredder and forget about it. Wolfowitz says as much when he says that everyone at the Bank sought to avoid battle with an angry Riza - people did not want a battle with her, did not want her as a supervisor, pretty clearly feared her in a Bank with Wolfowitz running it, and so would not settle for the usual recusal deal that governed other senior staff relationships. They wanted her out, and got it. Vive la sisterhood of the Bank.

So the rest of the world, starting with the staff of the Bank, may talk the gender talk - but it doesn't mean it, at least not in the way that Americans, following conditions laid down by a combination of Mackinnon and the US Supreme Court, understand it. Maybe they're right and we Americans are wrong - I'm not a feminist and see many problems with how the United States has evolved on these things. But in any case, in an international organization, these gender rules seem inevitably on a collision course with the fact that, among other things, extramarital and other affairs are socially acceptable at the Bank and the UN and all sorts of international institutions, no American puritanism for them - a collision course, that is, unless the institution reconciles them with a large, large dollop of hypocrisy and double standards. Which is the usual attitude I have found at international organizations. For that matter, I recall, while serving as a general counsel for a large transnational charity, having to deal with the outrage - much of it from very committed feminists in Western and Eastern Europe - at the attempt, in the interests of avoiding liability in NY courts, to impose an American sexual harassment standard on the global organization. They didn't buy it, and my experience of Europeans - and Asians and Africans and people from many places - is that although political correctness of the kind that infuses institutions like the Bank and oozes from its many pores and orifices is the official line, it is not really adhered to and not really believed. And since there is no recourse to American courts, which do believe it, it is honored in the time honored fashion of European diplomatic hypocrisy, an elegance of words but something quite different in the way of action.

Well. The Washington Post story is pretty good today, as well. Here, by Paul Goodman. He, too, seems to have read the documents and talked with more than just a coterie of Bank sources. The New York Times, as has been usual in this as well as other international organization scandals, fares the worst, with Steven Weisman's front page story (behind the subscriber wall) simply seeming to channel Bank insiders. Who knows, maybe he diligently combs through everything, but it sure doesn't show up in the reporting.

The reporting is shifting, with a certain relief it appears, away from factual reporting to soft opinion journalism about the mission and future of the Bank. Not investigative, not reading documents, but interviewing some talking heads on one side or the other. Mind, this is an important discussion, but it has not been very helpful to have it shoehorned into a (non) scandal that is really about corporate governance, or the lack thereof at the Bank - and I refer to the Bank board, and its ethics committee, and its former general counsel - not anything as highminded as the Bank's mission. I've posted here earlier on the fundamental weaknesses of its mission/business model, but that's not what the Wolfowitz affair is all about.

Tuesday, May 15, 2007

Michael Gerson in WP on African Episcopal missionary outreach to the US

Michael Gerson, a new columnist for the Washington Post, has an important and insightful column, Wednesday, May 16, 2007, Washington Post, on the installation of the missionary bishop of the Nigerian Anglicans to northern Virginia, and the movement of the global south to re-Christianize the global north. This article is about the United States; my sense, however, is that a historically much more important re-evangelization will eventually take place in Western Europe, led by Africans and African immigrants.

On of these days, when I get a moment, I will write something about religion here. I suppose I might respond to part of Chris Hitchens' new book, but I'm more interested in the sensibility about religion at this moment.

I was once a Mormon missionary, many years ago, in Peru. I am a long lapsed Mormon, but unlike a lot of lapsed Mormons, I hold no ill-feelings for the Mormon church. Most of my family is still devoutly Mormon, and I have enormous respect for how they live they lives, and well as a great fondness for Mormon culture, even if I don't count myself as a Mormon believer. I don't write about the Mormon church very much, although I wrote two long review essays about the Mormons some years ago - one in the Times Literary Supplement, on the intellectual and spiritual roots of Mormonism in gnosticism and the radical religious reformation, here, and a second in the Los Angeles Times Book Review, when under the editorship of the great Steve Wasserman, here, on a new journalistic account of the Mormon church.

Excerpted from Gerson's column, midway:

In 1900, about 80 percent of Christians lived in North America and Europe; now, more than 60 percent live on other continents. There are more Presbyterians in Ghana than in Scotland. The largest district of the United Methodist Church is found in Ivory Coast. And many of the enthusiastic converts of Western missions have begun asking why portions of the Western church have abandoned the traditional faith they once shared. Liberal Protestant church officials, headed toward international assemblies, are anxiously counting African votes, because these new voters tend to take their Bible both literally and seriously.

This emerging Christianity can be troubling. Church leaders sometimes emphasize communal values more than individual human rights, and they need to understand that strongly held moral beliefs are compatible with a commitment to civil liberties for all. Large Pentecostal churches are often built by domineering personalities promising health and wealth.

But the religion of the global south has a great virtue: It is undeniably alive. And it needs to be. A mother holding a child weak with AIDS or hot with malaria, or a family struggling to survive in an endless urban slum, does not need religious platitudes. Both need God's ever-present help in time of trouble -- which is exactly what biblical Christianity claims to offer.

Some American religious conservatives have embraced ties with this emerging Christianity, including the church I attend. But there are adjustments in becoming a junior partner. The ideological package of the global south includes not only moral conservatism but also an emphasis on social justice, an openness to state intervention in markets, and a suspicion of American economic and military power. The emerging Christian majority is not the Moral Majority.

But the largest adjustments are coming on the religious left. For decades it has preached multiculturalism, but now, on further acquaintance, it doesn't seem to like other cultures very much. Episcopal leaders complain of the threat of "foreign prelates," echoing anti-Catholic rhetoric of the 19th century. An activist at one Episcopal meeting urged the African bishops to "go back to the jungle where you came from." Not since Victorians hunted tigers on elephants has the condescension been this raw.

History is filled with uncomfortable turnabouts, and we are witnessing one of them. Serious missionary work began in Nigeria in 1842, conducted by a Church Mission Society dedicated to promoting "the knowledge of the Gospel among the heathen." In 2007, the Nigerian outreach to America officially began, on the fertile mission fields of Northern Virginia. And the natives here are restless.

Monday, May 14, 2007

Cooking salmon

Among the things I have learned on the Food Channel, while sweating away at 20% oxygen, is how to cook salmon. Specifically, from Emeril LaGasse, what to do with fresh salmon, skin on. To wit. Tonight, I heated the oven to 500 degrees F, and put a very large, double size cast iron skillet inside to heat - for nearly an hour. (Meanwhile, I stuck the first large tomatoes of the season at an affordable price in to roast in some olive oil and salt.) While the skillet was heating, I marinated a big slab of salmon, skin on, in some wine, garlic, balsamic vinegar, olive oil, and some seafood spice mix. When the skillet was very hot, I patted the salmon dry, and turned on the oven broiler. I rubbed some more dry spices into the fish, and then put the dried off salmon into the skillet, face down and skin up. Then I stuck it under the broiler on high. The skin sizzled and crackled and the salmon cooked very, very quickly. Took it out, drizzled some olive oil on it, and bingo. Very, very moist, with crackling salmon skin.

While that had been going on, I had taken some small purple skinned potatoes, washed them, and cooked them mostly done in the microwave in a bowl with some white wine, olive oil, salt, and garlic. The inside of the potato was mostly cooked through. I removed the fish, then added the potatoes to the skillet plus the wine and oil, added some more wine, deglazed the pan to get the fish juices all dissolved, then put it back into the oven with the potatoes under the broiler. They sizzled a while and got a little crispy, and the wine reduction sizzled. Mixed it all together and that was the potatoes.

Romaine salad with a dressing that included a tablespoon of hummous. Fresh green beans soaked and then cooked in white wine until just crunchy, and the oven roasted tomatoes.

Dessert was a bunch of blackberries on sale, soaked in a couple of tablespoons of balsamic vinegar with some vanilla turbinado sugar on top.

Until watching Emeril, I had no idea that you could really do things with an ordinary oven broiler. But using a heavy cast iron skillet preheated makes all the difference in the world.

Marko Milanovic and commentators discuss human rights and humanitarian law interplay, and meaning of combatant, at Opinio Juris

Check out this very interesting discussion at Opinio Juris, kicked off by guest blogger Marko Milanovic. It starts with the question of the interplay of human rights law and international humanitarian law - John Cerone, by the way, has a new article out on this subject that I will try to remember to link to - and then moves into a discussion of the meaning and implications of combatant. I have my own views on both these topics of course; I tend to be closest in this discussion to Geoff Corn's comments, but also have some differences. As I am deep in the rewrite of a manuscript on the UN, UN reform, and governance, plus international development issues related to the World Bank and Paul Wolfowitz, however, I have to take a pass at commenting on this very interesting exchange.

Very fine piece by Stuart Taylor, National Journal, on new approaches to counterterrorism policy

Stuart Taylor is one of the most incisive journalists around - on a wide variety of topics ranging from the Duke lacrosse case, where he was one of the very, very earliest journalists to raise skeptical questions to the topic of his May 14, 2007 National Journal column, on counterterrorism. He notes that there are scholars, activists, and policy analysts - I am honored to be included among them - seeking to find common ground going forward on counterterrorism, looking beyond the Bush administration to the next administration and the 111th Congress. (His column a couple of months back on the possibility of a national counterterrorism court was also very, very important.) From the column:

Terrorism Suspects And The Law

Stuart Taylor Jr., National Journal
Monday, May 14, 2007

What should our government do when it captures a noncitizen suspected of being an Islamist terrorist?

Under the Bush administration's approach, partly ratified by Congress, such people can be imprisoned indefinitely, perhaps for life, without ever seeing a judge or jury, based on slapdash military hearings with no defense lawyers, no real opportunity to confront the evidence against them -- which can be obtained through coercive interrogation -- and all-too-cursory judicial review. Some detainees have also been subjected to years of interrogation, including techniques so brutal as to meet many definitions of torture -- and, in a few cases, to cause death.

No satisfactory resolution of the debate over the treatment of suspected terrorists is likely until at least 2009.

By contrast, under the approach demanded by some human-rights groups, even a captive who is undoubtedly a mass-murdering terrorist must be freed unless the government can prove his guilt beyond a reasonable doubt in an ordinary criminal trial. If the proof would publicly expose secrets so sensitive as to endanger the lives of intelligence sources, that would be the government's problem. Nor could terrorist masterminds be subjected to even mild discomfort by interrogators seeking to extract life-saving information.

The gulf between these two approaches illustrates the polarization of our political and legal debate on the handling of terrorism suspects. No satisfactory resolution seems likely until at least 2009. Then, perhaps, we may have a new president willing to heed the advice of the more moderate-spirited experts (some named below) who have been thinking through the challenges posed by the hundreds of suspects now held by the military and others who may be captured in the future.

The most important challenge will be to devise a fairer process for deciding whether to subject suspects who may or may not be terrorists to long-term detention -- an issue of much greater importance than the more publicized Bush plan for criminal trials of a few detainees before military commissions.

Meanwhile, with the administration's far-too-error-prone approach in place and its loudest critics offering no politically acceptable alternative, America's once-proud image suffers -- more than it should, probably -- and the terrorists win recruits and sympathizers around the world.
To make things worse, the administration is trying to leverage the denial of serious judicial review to Guantanamo Bay detainees -- approved by Congress in October's
Military Commissions Act -- into a denial of serious legal representation as well. The Justice Department has urged the U.S. Court of Appeals for the District of Columbia Circuit to limit lawyers handling appeals from military decisions classifying detainees as enemy combatants to three visits per client; to let the government read lawyer-client letters; and to let it deny the lawyers access to secret evidence.

At the other extreme, some human-rights advocates seem so deep in denial about the magnitude of the terrorist threat, as well as about the differences between their own views and those of the vast majority of voters and politicians, that their protests fall mostly on deaf ears. Such groups have little prospect of influencing American policy even if Democrats take the presidency and hold Congress in 2008.

After all, when the Supreme Court rebuffed Bush in 2004 [PDF] and again last year [PDF] for breaking the law in his handling of detainees, Congress promptly changed the law after each decision to overrule the justices and give Bush most of what he wanted. And while human-rights groups would completely ban even mildly coercive interrogation, some Democrats, including Sens. Hillary Rodham Clinton and Charles Schumer of New York, have said that they might support full-fledged torture in a "ticking-bomb" scenario. Such comments, plus the unwillingness of most Democrats to push for reforms in the treatment of detainees, reflect the reality that public opinion is far closer to Bush's guilt-presuming approach than to the unrealistic prescriptions of, say, Amnesty International.

And on the merits, the military's highly inadequate Combatant Status Review Tribunals, which decide what suspects to incarcerate as "enemy combatants," do provide protections consistent with the Geneva Conventions and the Supreme Court's 2004 Hamdi v. Rumsfeld decision.
It must also be admitted, in my view, that although "meaningful, probing judicial review has a more substantial place in this war than the administration allows, it has a far-more-limited one than many civil libertarians and human-rights advocates imagine," as Brookings Institution guest scholar Benjamin Wittes writes in a forthcoming June/July Policy Review article.

Wittes and other moderate-minded experts of diverse political views appear to agree on the need for policy makers to find a middle course between the Bush and Amnesty International extremes.

The best hope for moving toward a decent detainee policy is for the winner of the 2008 presidential election, and the 111th Congress, to look to such experts for guidance.
These experts include (among others) Jack Goldsmith of Harvard Law School, one of the few high-level Bush Justice Department officials handling terrorism issues to leave with his reputation intact; former Clinton Justice Department officials including Walter Dellinger of Duke Law School and Neal Katyal of Georgetown Law School; Elisa Massimino, Washington director of Human Rights First; Kenneth Anderson of American University Washington College of Law; and Curtis Bradley of Duke Law School, who served in the Bush State Department.

Then there is Bill Clinton, who would make a perfect chairman for a national commission on detainee treatment. In a little-noticed National Public Radio
interview last fall, the former president outlined a sensible approach to the hypothetical interrogation of a captured terrorist mastermind who is thought to know the plans for an imminent attack:

"You don't need blanket advance approval for blanket torture. They can draw a statute much more narrowly, which would permit the president to make a finding... if they really believe... the only way they can get a reliable piece of information is to beat it out of someone or put a drug in their body to talk it out of him, then they can present it to the Foreign Intelligence [Surveillance] Court, or some other court, just under the same circumstances we do with wiretaps. Post facto.... But I think if you go around passing laws that legitimize a violation of the Geneva Convention and institutionalize what happened at Abu Ghraib or Guantanamo, we're going to be in real trouble."

Even the wisest experts on these issues disagree about many things -- most of all, perhaps, about whether federal courts should have the power (denied by the Military Commissions Act) to hear full-fledged habeas corpus challenges to the military's detention or treatment of non-Americans captured overseas. But many of them appear to agree about some big things:

The demands by many human-rights advocates that all terrorism suspects be released unless proven guilty of crimes should be (or, at least, inevitably will be) rejected by the president, Congress, and the courts. Some form of administrative detention -- not to punish but to incapacitate terrorism suspects for whom criminal prosecution is not feasible -- will be with us for the foreseeable future.

The detention hearings implicitly approved by Congress last October are unnecessarily error-prone. Terrorism suspects should have the assistance of counsel in these detention hearings; the lawyers should (if they qualify for security clearances) have access to all of the government's evidence and should be able to seek evidence and testimony from abroad, insofar as practicable.
Congress should revisit and reject the Bush position that the government can grab any foreigner in this country and lock him up indefinitely as an enemy combatant, with no trial and no more protection against erroneous detention than is given to those captured in Afghanistan.

The definition of "unlawful enemy combatant" in the Military Commissions Act is too broad. It includes not only active participants in hostilities but also anyone who "purposefully and materially" supported attacks on the United States or its allies -- language that arguably encompasses anyone who sent money to a banned group or food to a combatant son.

The act's vague, confusing rules on interrogation tactics leave too much room for executive branch manipulation while also leaving interrogators too exposed to second-guessing.

More-rigorous federal judicial review is needed over the integrity of the military's fact-finding process than the Military Commissions Act provides, both in the initial decision to detain a suspect and in subsequent parole-type hearings to determine whether he still poses a threat.

"Deferential [judicial] review of anemic procedures yielding decisions with enormous consequences for the liberty of individuals captured under murky circumstances," as the forthcoming Wittes article asserts, "is not a recipe either for justice or for public confidence in American prosecution of the war on terror in the long run."

-- Stuart Taylor Jr. is a senior writer and columnist for National Journal magazine, where "Opening Argument" appears. His e-mail address is

The Examiner (DC) on one-way multiculturalist ratchet and Muslim special demands

The Examiner (DC) editorializes against the increasingly common trend - already de rigeur in Europe - on American college campuses to grant special rights to Muslim student demands that they would plainly not grant, and often would not be allowed by courts to grant, to other faiths. Here. Thanks Instapundit.

Robert D. Sloane on a voluntarist war convention

Thanks to Jacob Katz Cogan's International Law Reporter, post here, I became aware of this very interesting paper by Robert D. Sloane on a "voluntarist" war convention for addressing jus in bello in fighting with terrorists, at SSRN, here. Very interesting and important new paper, well worth reading.

Sunday, May 13, 2007

Sebastian Mallaby on the World Bank and Wolfowitz

Sebastian Mallaby is very smart, and there are few people on the outside more knowledgeable about the World Bank than he, so this column from the Washington Post, Monday, May 14, 2007, A14, is must-reading. As is his 2004 book, The World's Banker: A Story of Failed States, Financial Crises, and the Wealth and Poverty of Nations. Mallaby is a hard-headed, tough-minded journalist and policy analyst in the area of development and global poverty reduction, one of the smartest and best informed outsiders.

Sebastian - I know him a little bit - appears to have been reacting in his WP column to this George F. Will column, also in the Washington Post. Will is not an expert on the Bank or international development; his column appears to have been written after some discussion with one or more of the Bank's critics. Mallaby appears to be out to marshall a lot of facts about the Bank and its work that Will and his readers are not likely to know much, if anything, about.

In taking down Will's column, however, Mallaby sacrifices a lot of legitimate criticism and the possibility of radically rethinking the Bank - radical criticism that he himself is much more willing to consider in his book. I understand that an 800 word column does not allow much room for subtlety. Still, that acknowledged, I don't quite think the column admits what Mallaby himself otherwise would say about the shortcomings in the Bank's business model. I fear that in this column, Mallaby is, alas, simply channeling the Bank.

(I leave aside as unserious the column's opening argument that one can look at the Bank simply like any other company and therefore the board of directors should fire Wolfowitz for having lost their confidence and having lowered share price. The remainder of the column, after all, is one long argument as to why the Bank cannot be treated merely as any private company. If it were a private company, after all, well, it wouldn't exist. As to the bizarre analogy to falling share price, it is inapposite not just because the Bank doesn't have one - rather, the larger point of the remainder of the article is that the Bank cannot, by definition, be measured according to such criteria. It is nearly as idle as the analogy sometimes bandied that US voters are "shareholders" who should fire Bush as "company president.")

Mallaby points out that approximately half of the Bank's outflows last year went to poor(er) countries if one includes, as properly one must, the Bank's soft loans and grants programs - these being the general evolutionary trend of the Bank. This is his main point of attack against the Will column; the (almost certainly correct) dangling implication is that Will has no idea about this. There is, in other words, a story beyond the statistic Will cites that 27 middle income countries received 90% of the regular lending of the Bank.

Fair enough. But one might conclude that this is precisely this statistic that should cause one to wonder why the Bank exists as a bank. Sebastian defends the middle income lending - which, after all, still amounts to over half the Bank's outflows - with the throwaway line that much of it goes to countries like China or Brazil that have many, many poor people. Sure, but how that regular lending really, genuinely, measurably affects outcomes for those very poor people is very murky - perhaps someone more expert than I can explain it, but I haven't seen measurable data to that effect - in large part because of the question of what role it plays in countries that do indeed have access to private capital that far exceeds the capital flows of the Bank.

It is far from clear, at least to me, that such regular lending to middle income countries has positive longterm impacts for the very poor of those countries. In part this is because money is fungible. In order to demonstrate that these funds make a difference to these poor people, it is not enough to show that it increased aggregate capital flows. It is not even enough to show that it was, in the first instance, specifically targeted toward those poor people - because, after all, the inflow of Bank funds, might simply have allowed other funds to be siphoned away. Anyway, the incentives from a financial statement point of view for the Bank to want to make loans to those safe middle income countries is a strong reason at least to wonder what the economic benefit is for the very poor in Bank lending to middle income countries and to want to see strong, reliable evidence for it. Perhaps it is there and, although I do tend to follow this literature, perhaps I have simply missed it - and Sebastian knows this literature, I'm sure, as well or better than anyone, so I would be happy to be pointed toward the papers on SSRN or elsewhere.

But assume for a moment, arguendo, that the criticism I make above about middle income lending is so. In that case, Mallaby's argument falls back on the fact that slightly less than half of the Bank's outflows come in the form of soft loans and grants. But that fact is lukewarm at best and really cuts both ways. The argument radical reformers of the Bank make is that there is little reason why the Bank should not be reorganized to give up the private capital market-intermediation-subsidized lending to middle income countries altogether, and focus entirely on the soft loan-grant programs, to the poorest countries. Of course private capital markets cannot do everything, as Mallaby says - but that is not the argument that the radical reformers make and is surely a straw man.

The problem of the Bank qua bank is that it seeks to intermediate private capital markets (with a subsidy), to try and do precisely what Mallaby suggests private capital markets cannot do because capital markets cannot solve all of poverty's problems. The reformers would suggest that the subsidy in the case of the Bank's ordinary lending to middle income countries is not really enough to compete with the functioning of the private markets; the Bank's lending really is a fifth wheel, and it should give that up in favor of activities for which it is not merely a fifth wheel. (As for crisis lending to middle income countries that Mallaby mentions, well, what is the IMF for? And - I don't know the answer to this - how great was the role of the World Bank in liquidity terms in the Asian crisis compared to the Fed?)

In the case of the poorest countries, however, lack of capital is genuinely an issue. So is the ability to repay any loan. So is technical assistance, and so is any improvement in governance. Why not cause the Bank, therefore, reorganize without the middle-income country intermediation-banking function, and focus solely on soft loans/grants and, let us not forget, technical assistance and governance advising. And focus on countries, societies, that are the poorest. Why endorse half measures?

For if that's what the real value added is, it is far from clear why anyone needs the Bank's goldplated operations -they cost what they cost in part because they are designed to interface with the private capital markets, and to pay the people who do those functions a respectable civil servant salary commensurate with financial professionals in the public sector. In my experience, it is not what one would pay program officers in a foundation dealing with local poverty matters on a grant-making basis, who do not have and do not need the banking credentials on which the Bank prides itself. There are comparably serious skill sets that these anti-poverty program officers need, yes, but frankly they can be obtained at a lower cost, in part because they are not so readily placeable in the private sector. Why not reorganize at a cheaper cost along the lines of far more efficient, far more locally oriented (because less capital markets oriented), far cheaper in terms of transaction costs European aid agencies? (I do not suggest under any circumstances modelling anything on US AID, which is a waste of oxygen.)

If these functions were being carried out by the Dutch, the Swedes, the Norwegians, the Swiss, through their national development aid agencies, how would they do it and what would they pay? Would they pay for a whole banking staff when in fact the operation is aimed at grantmaking anyway, and the money would come from governments in any case, not from the capital markets and relent at a subsidized interest rate? They would - they do - engage in a certain amount of on-lending in which they really do expect to get repaid, but that is far from being the core, let alone over half, of their work.

Why, in other words, should the World Bank continue simply for historical reasons as a bank, a bank designed in cost structure, skill sets, etc., to interface with private capital markets? Why share the pleasure Mallaby takes in noting that slightly under half the bank's outlays went to soft loans and grants - why not think those things should essentially be the whole thing? Why take pride in half-measures that continue precisely the sins that Sebastian correctly sees in thinking that it all can all be done by capital markets? Why not sever the relationship to the capital markets altogether and concentrate on poverty reduction as such?

(ps. The column also mentions in passing that Bank salaries, once you take into the account the tax adjustment and long summer vacations, are comparable to academic salaries. I'm told there is a link to a paper by an economics professor in the online version, which I will look up. But as someone who is a college professor, and who is married to someone who used to work in an international organization with similar salary structures and arrangements and who, hence, paid very close attention to comparative salary issues - well, at least if you were not an American and not subject to tax on your salary, it was a very favorable deal. The tax break was amazing for non-Americans. I simply don't understand what Mallaby is suggesting here - it is not our experience at all. As for summer vacations - every dean and professor I know understand perfectly that summer vacation is simply the research semester, it's not vacation, at least if you plan on getting tenure, getting a promotion, getting a raise. It's a 12 month job like any other. And now I have to get back to it.)

(pps. Or consider this short op ed by AEI resident scholar Desmond Lachman, here. It argues for a World Bank that gives up the middle income lending function altogether, along with the proliferating mandates at the Bank that increase its unaccountability.)

Happy mother's day

We are off to see The Tempest at the Folger Theater here in DC, which is perhaps an odd choice of play for mother's day, seeing as how Miranda is a conspicuously motherless child.

Excellent production at the Folger, really lovely.

As I sat watching, I thought about how I might stage it. I realize every conceivably goofy rendering of Shakespeare has been done, and done to death ... still, I wondered about perhaps a cyberpunk, neuromanceresque version of The Tempest, in which Ariel sits above the stage as a techno-nerd girl-geek playing at videogames, surrounded by monitors and keyboards and techno-cyber-gizmos, but also pizza boxes and Pepsi and Doritos, pulling all the strings at Prospero's command ("You can't stop the signal, no one can stop the signal."). All the humming and singing and songs done with synthesizers from her work station.

As for Caliban, the prototypical monstor is wired up as a sort of cyber monster/Frankenstein, his head shaved and marked off in grids and electrodes fastened and unfastened to his brain, ordered about by Prospero with a control pad strapped to his wrist. And the visions that Ariel gives to the Duke, et al., all done with holograms. Give a new twist on the dream and great globe and insubstantiality riffs. The Tempest as neural net?

I said Caliban as monster/Frankenstein. Yes, but also as something resembling Gollum in the Lord of the Rings movies, in both appearance and physicality, played by someone very wiry and young. Or for a notably prurient possibility, with provocation appeal and many, many YouTube possibilities, perhaps a very skinny girl with shaved head, wearing only a Gollum-style loincloth ... okay, okay, I hear you, too distracting.

Any possibilities here? Probably already been done, actually, and I'm just chanelling it.

Saturday, May 12, 2007

Richard Hopton's History of Duelling reviewed by Jon Latimer in the TLS

I am eager to read this book, Richard Hopton, Pistols at Dawn: A History of Duelling (Portrait 2007, and it doesn't seem to be on Amazon US), particularly on account of the lovely review essay by Jon Latimer in the May 11, 2007 Times Literary Supplement. It is not online, but will eventually show up in the subscriber only archive.

Duelling interests me for a several reasons.

One is that my childhood sport was fencing - I read the Three Musketeers as a boy and discovered that the college town where I spent my cavity-prone years, Claremont, just outside Los Angeles, had in residence a world class fencer and fencing coach, Francis Zold, a Hungarian who had been on the Hungarian Olympic team before the Second World War. He had gone on to become a professor of intellectual property and copyright at the University of Budapest. He and his family fled Hungary in 1956, and settled in Claremont. Discovering that a specialist in Hungarian copyright law and whose English was so-s0 - although, like so many Hungarians, he was in fact a gifted linguist and was fluent in at least five languages - was not in great academic demand, he went back to coaching fencing at various southern California colleges, including Pomona College.

He also took on high school students in a local community club. He was one of the greatest teachers I have had in any field - others include the UCLA professors Rogers Albritton, Philippa Foot, Herbert Morris, and David Rapoport - and on account of spending all my time fencing, I didn't learn many other sports. At one point, he wanted me to come spend time in the afternoons with the Pomona College team; I was a freshman in high school, and this entailed asking permission of the fearsome head football coach and PE teacher, a huge bear of a man who would tell you to drop and do 50 pushups without thinking twice. I very shyly explained what my fencing coach had in mind - the football coach broke in and said, you are a student of Francis Zold? I said, yes, not sure what that meant. He said, Master Zold is one of the great coaches in this country, and whatever he wants, you do. Now get out and make sure you make him proud. Not being especially good, I didn't, although I tried hard.

Later on, when I finally got around to college at UCLA - I was 24 or 25 years old, I had spent several years working blue collar jobs in LA and a couple of years as a Mormon missionary in Peru - I joined the UCLA fencing squad. It didn't last long after I joined and was cut in a budgetary overhaul - however, I met some genuinely wonderful people there, in particular the LA television writer, Tim Maile, who is a successful writer of teen shows, including dreaming up the Lizzie McGuire Show. Also I received a UCLA letter and handsome leather letterman's jacket, which never failed to impress girls until they found out the sport involved.

All that by way of saying that fencers are often interested in subjects like duelling. I have a second, quite different reason for interest in the subject, however.

In Just and Unjust Wars, Michael Walzer raises the question of wars - fighting, killing - that are not unjust. He offers examples of aristocratic young men who fight each other as a grand game, by choice, perhaps as a rite of passage, and says that a death in such circumstances of choice and autonomy is not unjust. It is a very careful locution, because it qualifies the judgment in two ways. One is that although the death may not be contrary to justice, it might be contrary to other moral virtues and rules - such as not killing or being killed in what is merely a game - a Catholic theologian, for example, would surely reject the notion of "autonomy" here. That is to separate justice from other virtues. The second qualification, however, is that Walzer does not say that such a death is just - merely that it is not contrary to justice, which is a quite different thing.

Duelling, whether with swords or pistols, personalizes the game. It also puts honor, or some notion of it, ahead of justice and other virtues. It is, as the review notes, a practice that in Western societies has long been forbidden by authorities, especially in the military, apparently largely on grounds that it weakened the fighting ranks. At any rate, duelling is one of those social practices that tests the limits of how far we are willing to admit of autonomy.

Thursday, May 10, 2007

La Marseillaise is stuck in my head!

After listening to the YouTube video of the crowd singing La Marseillaise in Paris at the celebration of Sarkozy's victory, it is now stuck in my head. I have been humming it all day long. I even played it on my cello when I should have been playing Buxtehude. What to do?! I listened to the San Francisco acid rock album by the Jefferson Starship, Blows Against the Empire at the gym, but even the Jerry Garcia lead, sample here on Starship, was no match for La Marseillaise.

(Per request of commenter, I've linked above to one of the several YouTube videos.)

The Singing Professor, or, To the Barricades!

A play in indefinite acts.

Scene: Dinner, lovely DC spring evening, family - Jean-Marie, Ken, Renee, Uncle Jack - eating on the screened in porch. Twilight. All is peaceful with the world.

Jean-Marie (brightly): The salmon is great.

Ken: humming distractedly

Jean-Marie: Renee got a 97% on her earth science test.

Ken: humming distractedly

Jean-Marie: She did okay on the math test.

Ken: humming distractedly

Jean-Marie: But she got a C on the passive voice Latin test

Ken: humming distractedly

Jean-Marie: And she'll probably be thrown out of school.

Ken: humming distractedly

Jean-Marie: Tuition just went up to $250,000 a year. No senior got into college. And Renee's 8th grade ethics class has been mobilized as part of the National Guard and is being sent to do community service in Ira - will you stop humming that damn song! This isn't Casablanca!

Curtain, followed by terrible commotion off-stage. Unclear whether Act II will be played. Stay tuned.

The salmon is a variant of a recipe seen on the Rachel Ray show on the food channel, featuring salmon baked in a mixture of half cup rum, a tablespoon or so of mayonnaise, lemon juice, balsamic vinegar splash, splash of molassas, a couple of tablespoons of yellow Thai curry sauce, much garlic and much ginger, both best fresh. Cover salmon with sauce top and bottom. Very hot oven - 425 degrees F, about twenty minutes for a pound of salmon. It's Rachel Ray - which is to say, Not Low Cal.

Bush administration weighs in on Wolfowitz and World Bank, better late than never, I guess, and thoughts about Bank anti-poverty policy

Not being in any highfalutin' political loops about the Bank and Wolfowitz, either international circles or in DC, I have been puzzled as to why the Bush administration has been so lackadaisical in defending Wolfowitz. The occasional word from Bush, but really very little said. Sometimes I have even far-fetchedly wondered whether the Bush administration's secret plan was to appoint but Tony Blair. In any case, the message taken away in foreign capitals from the lack of visible support surely would have to be that the administration would not care one way or the other what happened, at least so long as the US retained the informal right to appoint the Bank head. The view from Europe is summed up in this Financial Times editorial, here; it is essentially a rebuttal to the Wall Street Journal's editorials of the past few days.

According to the US papers today, however, the Bush administration has belatedly started to respond and defend Wolfowitz, including State and Treasury. The Wall Street Journal news pages have a good summary, behind the subscriber wall, Thursday, May 10, 2007, A6, Neil King Jr. and Greg Hitt, "Rice Launches Wolfowitz Defense." The Washington Post has an article in the business section today, John Ward Anderson and Peter S. Goodman, "Europeans Wince, Wait for Wolfowitz Saga to End," Thursday, May 10, 2007, D1, here. The WP piece seems to have been written and researched almost entirely from the European perspective, and says very little about US lobbying efforts on Wolfowitz's behalf.

The Washington Post also has a personality profile piece that finally shows a little sympathy for the woman who has really paid the career price for this, Shaha Riza. I have never met her, know nothing about her apart from what is in the papers and the blogs. I have to say, though, a surprising number of the comments posted on Bank-staff-related blogs show an utter viciousness toward her; some of these folks appear to be not such nice people, at least when concealed behind the internet veil of anonymity. (Washington Post article, here.) Indeed, to judge only by comments on the Bank-staff blogs, one might think that this campaign is essentially about getting her, even more than getting Wolfowitz.

I am also pleased to note that my Financial Times comment appeared in Arabic today, May 9/10, 2007, in the respected Beiruit newspaper An-Nahar, for those - alas, not I - who read Arabic, here, or so I am told. I've also been contacted by Le Monde about it appearing in French, but haven't seen it so far. But of course it is a modest piece, reflecting a corporate governance lawyer's concerns about what the publicly released documents show about the process and questions of fiduciary duty.

There are larger issues of policy about the Bank, obviously. Joseph Stiglitz raised some of them in his Financial Times comment, also May 7, 2007. I myself have views on some of them, although I have kept them quite separate from the narrow, lawyerly issues of fiduciary duty and corporate governance in the Wolfowitz affair. I do have another life in development finance, however. Curiously, because most of what I do pro bono as a corporate finance professor has to do with a nonprofit development fund, a nonprofit venture fund that engages primarily in lending and investment, I have a certain appreciation for what the Bank has traditionally used as its development strategy - a combination of subsidized loans and technical assistance, because that is what the organization I work with does.

One thing is clear from that kind of activity - if you are a nonprofit with a mission, but a mission driven nonprofit that nonetheless acts like a venture fund or bank, then you have to be very careful in how you target your loans and investments, because, presumably, it matters whether you get repaid or not. That is absolutely true in the case of my organization - if we lose the money, eventually donors will get tired of this and stop funding us and we are out of business. As a consequence, the places and circumstances where we can make investments are limited - places so poor that projects will not manage to repay loans don't work, nor do places where governance and rule of law is so poor that we could not hope to enforce our legal contractual rights. That leaves a circumscribed range of countries and societies in which it fits our mission to lend, but where we have a reasonable chance of repayment on a sustainable (albeit subsidized) business model.

In the case of the World Bank, something akin to the mission/lending tensions also applies - although the prospects of it going broke because its funders give up on it are vanishingly remote. The safest thing to do is borrow on the capital markets at a discount, combine this with various additional funds from donor countries, but then lend to places where you are likely to get repaid. You lend at a subsidized rate, but you don't really risk massive default. That leads you, however, not to the poorest countries, for which loans don't make sense, but to middle income countries.

The problem with middle income countries is that although they fit the business model, they don't really fit the mission of getting to really poor people. The proof, ironically, that they do fit the business model is that these countries can today tap the private capital markets. Sure, of course anyone who can get cheaper capital through the Bank will do so - in my nonprofit venture fund, we constantly get proposals from businesses that don't fit our mission profile but naturally like the idea of subsidized loans well below local rates, who wouldn't? But as I recall from Adam Lerrick, the Bank's lending in the past five years has been something like 90% to a group of 27 middle income countries, and that Bank lending was well under 1% of the total private capital market capital tapped by those countries. The Bank's lending was entirely superfluous to what the private markets were already doing - safe from a business perspective, but largely pointless from a mission perspective.

I have long accepted the Allan H. Meltzer proposals (quick summary 2 page PDF, here) - long rejected, naturally, at the Bank, since its professional structure is largely built around the Bank as a lending institution to stand-in for private capital markets - for the Bank to focus on the world's poorest people and turn itself into a grant making/technical assistance institution. If you do that, however, you don't need much of the existing machinery or, really, highly paid, highly skilled financial professionals whose task it is to manage the interaction of the Bank with its borrowings on the capital markets. You more likely need more locally focused people who can operate much closer to the "retail" level of economic development. Wrong structure, wrong set of staff, wrong focus. To be fair, the Bank has developed the world's leading expertise in poverty reduction studies - what works, what doesn't - and the world's greatest expertise in technical assistance. Compared, for example, with the corresponding UN programs, the Bank is the most important repository of knowledge, best practices, etc. - despite my criticisms here, I do acknowledge that and the accumulated intellectual capital it represents. But that is, curiously, still adjunct to its now largely overtaken financial and banking mission.

(George Will summarizes some of this thinking, largely drawn from Meltzer and Adam Lerrick in today's Washington Post, here. I think the Bank's intellectual capital in the areas of technical assistance, best practices, etc., is considerably more robust than Will and others who don't work in the area would admit.)

In addition to the Meltzer proposals to convert to grant making, rather than middle income lending, there is a second policy issue at the heart of the Bank professionals' objections to Wolfowitz (apart from everything else, I mean). That is the question of whether the function of the Bank, the measure of the Bank's success, is to shovel money out the door in a kind of European style welfare program gone global - essentially, an attempt at global income redistribution. The alternative is to focus on governance, and condition aid on governance reforms, as Wolfowitz and the American government has generally favored, in which aid is seen as an investment in the future, including governance reform, anti-corruption, all the rest, rather than simply income-shifting today, and in particular as an investment that draws in private direct foreign investment which, in the case of those countries which have lifted themselves out of poverty, has been the economic engine. (I discuss some of those questions tangentially, in a discussion about the relationship between microfinance and globalization, free download pdf at SSRN, here.)

It seems pretty obvious that the Europeans and the Americans fundamentally differ on the approach to global poverty. The same debate figured in the 2005 UN reform arguments over the Millennium Development Goals, where, for the UN bureaucracy and the Europeans, the issue was simply more and more money. Two different approaches - yet where there is no clear evidence that the World Bank-European approach has made any positive long term, generational difference to world poverty, and, to be fair, just as there is no evidence that the American preference for governance reform in fact makes any difference over the generational long term. No one, frankly, has any evidence-based method for international public institution intervention for poverty reduction.

In that case, perhaps the best thing would be to create two different institutions and let them compete in the global poverty market and see which works better. The Europeans can have the Bank, and pay for its goldplated operations; the Americans could perhaps ramp up the Millennium Development Corporation and put the money otherwise devoted to the Bank there. In a generation, maybe it will start to become clearer which approach works better - although, to be sure, as the parties become invested in their approaches, it is unlikely that either side would admit of anything.

But despite the virtues of a policy competition in something as unknown and fraught with uncertainty as this, the exhausted Bush administration, and future American administrations, are unlikely to try anything so ambitious. The reason is that the Bank is no longer really about poverty reduction for the US government. It is, instead, a place for the Americans, and for future administrations, to demonstrate their multilateral sincerity and bona fides. Serious intellectual challenge to the policy model takes a backseat far behind the need to show that the US is a team player, even if the team's policies have little to show in the past and little reason to predict that they will pay off in the future. The US is likely to seek, for a while to come, venues in which it can show itself to be a good, meek multilateralist.

The price paid in a healthy competition over effective policy on global poverty reduction - where the questions are genuinely open on both sides, and maybe what is needed is something altogether different from either one - is unfortunately considered collateral damage alongside the short term political need to demonstrate multilateral solidarity in an arena in which the costs of multilateralism - the costs of the failures of any particular anti-poverty strategy - are paid by neither the Europeans nor the Americans.

(ps, May 11, 2007. Marcela Sanchez, in the Washington Post, here, on Latin American countries, and not only those leaning Chavist, moving away from the IMF and the World Bank in favor of other sources of capital.)

PPS, May 11, 2007. Steven Weisman's New York Times account of current pressures by the Europeans to make it impossible for Wolfowitz to stay, behind the subscriber wall, but May 11, 2007, A14, notes the threat by European governments to reduce their contributions to the Bank if Wolfowitz stays. One might have thought this ... unilateralist. In any case, one wonders what they might do with the funds instead. Weisman says they would possibly contribute them to European aid agencies, and I'm sure that's so.

Why that would be such a terrible thing, however, I don't know. They would thereby shift funds from the World Bank to European aid agencies that would do approximately the same thing with the funds - although likely those agencies would put much less of that money into middle income country lending that is good for the Bank's balance sheet but not very relevant to economic development, particularly not of the world's very poor people. And my experience of the European aid agencies is that they are closer to the ideal I mention above. In my experience, they are less goldplated in their operations because they are not paying wages tied to the presumed skill sets of knowing how to tap into the private capital markets. They tend to be more efficient, much closer to what is going on at ground level, and define ground level much more as the world's poorest people.

Again, I emphasize, as I said above, I do respect the Bank as a repository of expertise on poverty reduction even if I don't think its core lending business makes sense anymore. Still, when it comes to delivery, I think the European country aid agencies - the Nordic countries, the Dutch, the Swiss, especially, do the best job I have seen of any governmental or intergovernmental agencies. The British are a mixture of the worst of the Americans and the Europeans - European in the sense of proposing to spend lots of money and measure success by spending lots of money, and American in the sense of not actually doing it - very Blairite, in the sense of the faux-solidarity Blair, really wonderful, Churchillian speeches by the Claire Shorts of this world, but then no money and no real follow through. I prefer the stolid, stodgier, but frankly much more stick-to-it Nordics - phlegmatic but dogged.

(US AID, it goes without saying, remains the bureaucratic nightmare it has always been - a trainwreck of an aid agency. Anyone who gets involved with US AID gradually shifts their orientation away from those they are supposed to be aiding and towards the worship of the bureaucracy of Washington. US AID needs to abolished and the US start over from scrach. But reforming the US delivery of poverty reduction aid is a whole other story.)

Far from being a threat, for European governments to shift financing from the Bank to their own aid agencies seems like a good idea in any case. I don't really see the downside, except, of course, if you're the Bank.