Thursday, June 21, 2018
SCOTUS Term: Finding the Law, Abroad and at Home
Thanks to Howard for the invitation to blog! Amid the morning’s excitement over new opinions, I’d like to add a few thoughts to Cassandra Burke Robertson’s excellent post last week on Animal Science Products v. Heibei Welcome Pharmaceuticals. Animal Science is a sleepy case in a mostly sleepy Term, but it brings up some deep issues, much deeper than the Supreme Court usually faces: what is the law, and how do judges find it?
Animal Science involved a price-fixing claim about Chinese exports of Vitamin C. The defendants said they’d been legally required to fix their prices, and China’s Ministry of Commerce agreed. To the Second Circuit, this was enough: so long as the Ministry’s position was reasonable, it was conclusive. (How could an American court instruct China’s government about Chinese law?) But to a unanimous Court, per Justice Ginsburg, the Ministry’s statement deserved only “respectful consideration”: it wasn’t binding, and U.S. courts would have to make their own judgments.
That all makes sense on the surface, but it raises at least three more fundamental concerns. Are legal questions like these all that different from ordinary questions of fact? Who do we trust to answer them? And what actually makes the answers right? When it comes to foreign law, issues like these aren’t always obvious—suggesting that the answers may not be so easy closer to home.
1. Legal questions and questions of fact. As the Court points out in Animal Science, foreign laws used to be treated as facts—they had to be pleaded and “proved as facts,” subject to rules of evidence and based on expert testimony or authenticated documents. As it turns out, these same rules applied to U.S. states—which were just as foreign to one another, except when the Constitution or Congress intervened, and which therefore needed proof of each other’s laws. (As I’ve argued before, the Full Faith and Credit Clause was mostly about these evidentiary questions: it helped establish what a particular state had said, and left it up to Congress to decide when other states should listen.) Sometimes even a state’s own laws got the factual treatment: courts could take judicial notice of public laws, but private bills were again matters for pleading and proof, as Chief Justice Marshall described:
“The public laws of a state may without question be read in this court; and the exercise of any authority which they contain, may be deduced historically from them: but private laws, and special proceedings of the character spoken of, are governed by a different rule. They are matters of fact, to be proved as such in the ordinary manner.”
Today we do things very differently. Federal and state courts take judicial notice of all kinds of American laws, and FRCP 44.1 and various state equivalents let them do the same for foreign ones. But we haven’t eliminated the basic problem of proving the law. Knowing that judges should answer these questions on their own—without simply outsourcing to juries, rules of evidence, or Ministry statements—doesn’t help us find any particular answers. If we need to know, say, whether French law allows extrinsic evidence of the contracting parties’ intent, should we look to translations of the statute book? To treatises and journal articles? To testimony by experts? And which translations, treatises, or experts should we trust?
2. Who do we trust? Giving only “respectful consideration” to the Ministry suggests that we should be sparing with our trust—making an all-things-considered judgment, looking at all the potential legal sources at once. But according to the Court, at least one kind of source gets special treatment. When a U.S. state court rules on an issue of state law, that ruling doesn’t just get “respectful consideration”; it’s considered as “binding on the federal courts.”
Why so? It’s easy to explain why federal courts might defer to Ohio courts on Ohio law, just as the Second Circuit would usually defer to the Sixth—they see more Ohio cases, so they probably know what they’re doing. But that doesn’t explain why the decisions would be binding, as opposed to just getting extra-respectful consideration.
Maybe there’s something special about common-law courts. Maybe we might say, with Hale, that the decisions of our courts might be “less than a Law, yet they are a greater Evidence thereof than the Opinion of any private Persons, as such, whatsoever.” (When it came to the construction of “local statutes or local usages,” Justice Story in Swift v. Tyson would have agreed.) But that’s very different from claiming, as Justice Holmes later did, that whenever a state creates a supreme court it’s really creating a junior-varsity legislature, “as clearly as if it had said it in express words.” Some states might want their courts to establish the law of the state, but others might not. Georgia might want its courts to do general common law; Louisiana might want its courts to do its own civil-law thing; Canada, were it admitted as a state (as the Articles of Confederation once offered), might have its own apologetically polite take on the separation of powers. And if a legal system turns out to be very different from ours—say, with a complex network of informal councils and regional magistracies—we might have no idea which entities even count as its courts, let alone how much “respectful consideration” they’re supposed to be getting.
As I note in a draft paper on Finding Law, that’s one of the core problems with the Court’s notorious decision in Erie Railroad Co. v. Tompkins. Instead of looking to a state’s law to learn about its courts, Justice Brandeis did precisely the opposite—assuming, for bad theoretical reasons, that the law of a state is what the state courts say it is, because that’s just what courts get to do. But American courts don’t establish Chinese law when they decide cases like Animal Science. And they don’t necessarily establish American law when they decide their other cases, either. The powers of courts aren’t facts of nature, but society-specific questions on which different legal systems can disagree.
3. What makes the answers right? If courts can sometimes get the law wrong, what does it mean to get it right? How can we disbelieve the Chinese government about Chinese law, if Chinese law is just whatever the Chinese government actually does?
As Asher Steinberg points out in the comments, in some societies (like Venezuela or the former Soviet Union), government officials don’t always adhere to formal legal sources. Maybe these particular defendants’ hands were forced by Chinese law; but maybe the Ministry officials just issued them orders, the statute-books be damned. If that’s what the officials did, and if law depends on what officials do, then maybe their secret commands really were the law. (Here Steinberg invokes a great paper by Mikołaj Barczentewicz, to which Will Baude and I are currently at work on a reply.)
But law is more than what legal officials do. If the defense in the case were just ordinary duress, it wouldn’t matter whether the threats were backed by legal force (or whether, say, Al Capone had told them to fix prices for Vitamin C). Instead, the defense cited “principles of international comity,” which we usually extend to foreign governments as they’re legally constituted, and not to rogue officials on a frolic of their own. If the officials were supposed to be able to order price-fixing, under some applicable statute or common-law doctrine, then it wouldn’t matter so much if their order were secret or open. But if not—if the officials were departing from what everyone else in the Chinese system (judges, experts, law schools, and so on) would describe as Chinese law—then it’s hard to say that what they were doing was really lawful. That’s why we speak of places like the USSR as having had problems with the rule of law: because in those societies, the law wasn’t always what ruled. As far as diplomacy goes, we might want to respect official actions merely under color of law, just to avoid annoying the officials with whose governments we negotiate. Yet we still shouldn’t confuse official actions with the law—either abroad or at home.
Friday, January 13, 2017
The Blue Inhaler
I carry an albuterol inhaler as my quick relief medication for asthma. I use it infrequently, which is good news for me and good news for my asthma. Known in many other countries as the blue inhaler or the blue puffer, albuterol/salbutemol is a tremendously popular and effective relief inhaler. First brought to market in the 1980's, sales of the blue inhaler have grown as have rates of asthma diagnosis.
Traveling recently in the E.U., my albuterol inhaler stopped working short of its full number of available measured doses. And so I was off to my neighborhood pharmacy in Ponta Delgada, hoping that a licensed pharmacist might be able to prescribe inhaled albuterol over the counter and spare me the quest for the Centro de Saude on New Year's Day. Frequent travelers are no doubt aware that certain prescription only medications in the United States may be sold over the counter in other countries or dispensed at the discretion of a licensed pharmacist, even in the absence of a prescription, in still other countries.
One glance at the Pharmacia Moderna receipt found above will tell you I was successful. I was seen quickly by a licensed pharmacist who discussed my symptoms, examined my current inhaler (stunned, it seemed, that the United States would allow a relief inhaler to be packaged in bright red or anything other than the blue that is the color coded signal to asthmatics the world over that a rescue inhaler is at hand), and sold me a full size blue salbutemol inhaler for just under 3.75 Euros. I paid for it with pocket coins.
Today, I will not discuss drug pricing in the Açores beyond mentioning that Portugal (the Açores are an Autonomous Region of Portugal) uses a reference drug pricing system to set prescription drug prices. The reference involved is to drug pricing in several other countries (varying yearly, but often including Spain). Portugal, in short, is not interested in being an outlier in prescription drug acquisition cost nor an outlier in prescription drug cost to consumers. For some years, in fact, Portugal's citizens paid less than other reference countries for certain pharmaceuticals, something that has been increasingly altered by a Memorandum of Understanding relating to drug costs, promoted by the E.U. after the latest financial crisis.
The price to me was a remarkable ten percent of my U.S. commercially health insured co-pay cost for the differently-named albuterol inhaler. The contents, however, were the same, though the color of the casing on my damaged inhaler disturbed my Açorean pharmacist and the lack of a dose meter mechanism on the blue inhaler sold to me in Ponta Delgada disturbed me. I have written elsewhere about the problems of relief or rescue inhalers without dose meters.
What was equally stunning, however, was the ease of the entire encounter. I had a new relief inhaler in hand inside of ten minutes. No visit to the the clinic, no transferral of the prescription from the clinic to the pharmacia, no complicated health insurance negotiations over whether a new inhaler would be covered (it was broken) or not covered (my request for a new inhaler was untimely by calendar standards).
This made me want to know if the blue inhaler is an over the counter drug in other countries. Sure enough, the blue puffer can be bought in a U.K. supermarket, in a drug store without prescription in Australia and Spain, and elsewhere all for about the price I paid at Pharmacia Moderna. Tracking backward to check if a push had ever been made to allow Albuterol inhalers to be sold over the counter in the U.S., I learned of a relatively recent effort by the FDA to generate discussion about the possible creation of a third class of medicines: over the counter, over the counter with conditions of safe use, and prescription.
Last widely discussed in 2012, the FDA held hearings on the OTC/SCU category's appropriateness for formerly prescription only items like steroidal asthma inhalers. Multiple days of hearing on the idea produced varied positions, including AMA opposition to the encroachment on physician scope of practice. One AMA spokesperson supported pharmacist supervision of OTC/SCU prescribing, as soon as the relevant pharmacist had gone to medical school. The FDA proposal went nowhere.
I know of no place in the U.S. where OTC/SCU prescribing involving steroid inhalers has gained any traction after the 2012 blowup at
the FDA, though pharmacist prescribing is developing a bit of a track record in Canada and in the U.K. Our own state-based experiments with pharmacist prescribing authority are a mixed bag of programs based on dependent authority (collaborative practice with licensed physicians) and independent authority (think Oregon, Washington, and California's hormonal contraceptives statutes) but they have proven extremely limited in scope.
And the blue inhaler? Google it, if you like, and read all the apparently U.S. based articles and chat board discussions on how to survive an asthma attack without a relief inhaler.
Sunday, September 04, 2016
Disentangling Correlation from Causation in Addressing the Contemporary Challenges of the Law School Curriculum
The disconnect between the actual curriculum of law schools in the United States meeting the ABA Standards for Accredidation and the multiple calls to reform that curriculum in order to create “practice ready” lawyers and increase bar passage is national in its scope and has led to considerable tension both in and out of the academy. I wrote this piece , Not Your Parents' Law School, last February to put the balance of classroom and experiential learning in context, but the on-going calls to increase bar passage, lower costs, cut a year out of the curriculum, and increase hands-0n skills instruction continue to create a climate of considerable dissonence. If that wasn't hard enough, we are trying to address these issues in an environment where everyone involved has not just their own opinion, but their own facts. Baskin Robbins wouldn't launch a new flavor based on evidence equal to the paucity of reproducible research that supports either the claims about the scope of legal academe's problems or the proposals for solving them.
Over the next weeks I will highlight the facts in dispute and address this disconnection and dissonance in a way that questions correlative explanations of low bar passage and decreases in employment opportunities. By the end of the month, I hope some readers will feel comfortable wondering whether we are putting too much emphasis on simple correlation and will be asking questions about what legal academe, and any other interested party, can do to first accurately describe the problem, then identify causative factors, and finally develop evidence based (and assessable) strategies to mitigate it. (Spoilers, it’s going to involve the help of experts who do math).
Equally, I look forward to sharing sources that can shed light on the question of why the increase in skills instruction hasn’t resulted in an increase in employer satisfaction. Spoilers, the last point will involve reading an excellent piece by Dean Wendy Collins Purdue of the University of Richmond School of Law that discusses this employer dissatisfaction as global.
And I'm still going to write about Zika.
Friday, August 12, 2016
Commons - IPSC 2016
Commons - Breakout Session IV - IPSC 2016
Licensing Open Government Data – Jyh-An Lee
The Romance of the Commons – Sean Pager
3d Bioprinting Patent Boundaries – Tabrez Ebrahim
The North American Mitochondrial Disease Consortium: An Emerging Knowledge Commons – Brett Frischmann & Katherine Strandburg
Licensing Open Government Data – Jyh-An Lee
Abstract: Governments around the world create and collect enormous amount of a wide range of data. For various policy reasons, open data has become a popular government practice and international movement in recent years. It is estimated that more than 250 national or local governments from around 50 developed and developing countries have launched open government data initiatives. Businesses have developed innovative applications, products, and services based on open government data. Open data policies have wide been recognized as a tool to foster government transparency and economic growth. Open data policy involves various legal issues. Among others, it is critically important for governments involved in the open data movement to devise a most appropriate legal way to release its data, and intellectual property (IP) licensing has been viewed as one of the main obstacles for governments’ open data releasing. Entrepreneurs may hesitate to use or re-use government data if there is no reliable licensing or clear legal arrangement. This Article focuses on legal issues associated with open government data licenses. Different government agencies with different policy goals have chosen different licensing terms to release their data. This Article compares current open data licenses and argues that licenses terms reflects policy considerations, which are quite different from those contemplated in business transactions or shared in typical commons communities. The licensing of government data also concerns some fundamental IP issues, which are not covered or analyzed in depth in current literature.
Victoria Stodden: Two questions about incrementalism - 1) What happens when someone applies a totally inappropriate license to data (share-alike, etc.)? 2) How do you cope with evolving / changing data sets?
A: 1) Compatability is the issue. For a creative common license, they can be interoperable. Some regions have taken account of compatibility in the license. But you are right that share-alike is not the most appropriate for government data licenses. In this paper, I argue that preventing commons from shrinking is not a policy goal, because the data is always there. 2) In regions that protect data, there is a danger that if you make a significant addition every year, you could protect data forever.
Sean Pager: <Couldn't hear Sean's question over some construction noise>
A: It's not easy to apply commercial concepts to a publicly funded database.
Brett Frischmann: In the U.S., there was a debate about needing to grant patent rights to incentivize universities to use information generated. Does that pop up in the public sector data context, like weather or traffic data? Do we need exclusive rights to incentivize use of the data?
A: One example, in the Netherlands, data generated about the city of Amsterdam has been made open access.
The Romance of the Commons – Sean Pager
I may be the anti-commons paper. I'm trying to push back on some rhetoric used by commons proponents in the copyright context that borders on magical thinking. Romantic commons theory is the opposite of romantic authorship, but ends up at the same dystopian endpoint. Romantic authorship critique: Copyright skeptics picked up a French deconstruction of the importance of authors. Copyright skeptics suggest that corporate entities usurp the benefits and use authors like a stalking horse to that end.
Now, the romantic commons critique engages in some of the same magical thinking about the Internet and its ability to suspend the gravity of economic and commercial reality. Authors are undervalued and under-rewarded, while powerful corporate entities take advantage of the primacy of free movement of information on the Internet to usurp profits while authors fail to benefit. But the romantic commons critique mistakes volume for quality. People still send money to acquire commercial, professional content. Beyond a certain scale, it is difficult to make creative content for free. The romantic commons critique also mistakes technology for talent: home computers that duplicate 20th century technology doesn't turn the owner of the tech into a valuable creator. There is abundant content, but not of sufficient scope and ambition made by people with sufficient talent. Failing to compensate authors and incentivize creativity leaves us in a situation where, like the Olympics in the early 20th century, the only one who can afford to train / create are the ones who are independently wealthy.
Annemarie Bridy: 1) Define copyright skeptic. 2) Are we undervaluing authors, or simply a certain type of author? You seem focused on a certain type of professional, commercial level author. Why?
Sean Pager: 1) I am responding in part to the logic in papers like Lemley - IP in a World with No Scarcity. That paper makes a number of the claims I'm directly critiquing. Diane Zimmerman, Eric Johnson - These are the copyright skeptics to whom I'm responding. 2) I think copyright needs to make allowances for non-professional authors, but I think the magic commons thinking undervalues professional level authorship.
Annemarie: You seem to be making a value judgment.
Sean: I am, measured economically, the money people are willing to spend.
Brett Frischmann / Victoria: Can you back that claim in aggregate value?
Sean: I'm thinking per work.
Victoria: If everyone were willing to part with 1/8 of a cent, frictionless, it might generate more money than fewer $5 tickets.
Brett: Are they necessarily mutually exclusive?
Sean: Not necessarily.
Mike Madison: Scholars who make your style of argument more powerfully - Jane Ginsburg, among others, are making an express value-based, ethical argument. They are making a desert argument that isn't captured by a value-based, economic argument. The economic argument you are making may not be supportable. You are saying the dynamics of the system aren't making the things we (should) value.\
Sean: I'm talking about the rhetoric, not the economics per se.
Brett: McKenna is working about ambiguity of normative ends. There are a variety of ways to construct the world: fully supported professional class. You may need to think through the tradeoffs, and it may be difficult to make strong claims. 2) I'm not sure this is "commons" - you are using a romantic version of commons that is convenient for you, but I don't know if this is commons.
Mike: It sounds like you are talking to John Perry Barlow in 1996. That's not commons.
Brett: We commons scholars don't talk about commons this way.
Jyh-An Lee: Is there another term that might work?
Mike: I don't know what it is.
3d Bioprinting Patent Boundaries – Tabrez Ebrahim
3d Printing is an additive form of printing objects. 3d Bioprinting is a means of printing biologic material (tissues, organs) using the same additive process. For example, you can take tissue from someone's genetic makeup and print a tissue or organ. A potential problem - this sounds like a human organism, and under patent law, you can't patent a human organism. My paper is aims to define the boundaries of patentability and patent scope, and to analyze the ethics and morality involved.
Even if human organisms are not patentable, method claims, for example, might be patentable. In Europe, there is a morality test for living organisms (Article 53(a)).
With regard to ethics / morals, I'm investigating, in part whether patent law does / should embody ethical values in addition to economic values.
Is 3D bioprinting different from and deserving greater scrutiny than 3D printing? Should it be regulated differently than 3D printing?
I make two proposals: 1) claims of 3D printing should be shourter to avoid overreacher. 2) patent law should develop ethical limits, perhaps an "ethical PHOSITA (person having ordinary skill in the art), and perhaps the PTO should hire examiners with an ethical background.
One potential patentable claim: a Beauregard claim structure to claim what is printed in an electronic CAD file (storage medium). Are there limits when there are biologic elements? Is this "abstract material," post Alice? Is this a type of manufacture, or just abstract data?
I propose limiting the duration of the patent if we patent it, to enable quicker access. We might also consider regulatory limits on what can be marketed, although still patented.
Brett: Say more about ethical PHOSITAs.
Tabrez: I claim that there are ethical norms embedded, but not clearly defined, and we should clarify the ethics. There should be a morality inquiry regarding the PHOSITA.
Sapna Kumar: From an institutional design perspective, the PTO doesn't show any talent for ethical judgment. The FDA, on the other hand, is an entity that makes ethical judgments. Why not the FDA?
Jyh-An: When you say "needs more scrutiny," what needs more scrutiny?
Tabrez: Patentable subject matter - we should be making an ethical inquiry.
Mike: Deven Desai has been doing the most interesting big-picture examination of 3d printing technologies generally. His view is that 3d technology heralds the cusp of another industrial revolution - 3d printing is the steam. By raising the ethical implications of mechanical production and bioethics, you are adding something to the big picture. You have the introduction to a really interesting project, if you think beyond the technical questions for a certain subset of patents, and think broader about the intersection of 3d printing, health law, and ethics.
Brett: I find the patentability of this technology least interesting, and ethical, moral, and regulatory questions more interesting. In these sorts of fields, its often all about the upside. It's hard for me to know what the downsides are. Classifying and describing the downsides of what we do and don't know would be useful from an ethical / regulatory perspective. That's where I want to see you go.
Governing Medical Commons – Mike Madison, Brett Frischmann & Katherine Strandburg
This is a descriptive project. Knowledge commons = knowledge and information sharing institutions. The knowledge commons framework is a template for empirical research. We are trying to untangle empirical questions about tragic commons, scarcity, and abundance questions. We are looking at the institutions that try to solve knowledge and information production and distribution questions, coordination of researchers, preservation of information, etc. We are trying to capture what's actually going on, over time, systematically. We argue that collective action to solve these collective action dilemmas is 1) possible 2) without state intervention or strong IP rights. We are inspired by Elinor Ostrom's Instututional Analysis framework.
Our first book, Governing Knowledge Commons, collects case studies on how knowledge commons are working. Our new book takes the same research framework looking at a more specific framework, Governing Medical Commons. We'll probably focus domain by domain in the future.
What have we learned so far? No strong conclusions, but here are the headline takeaways: 1) knowledge commons may confront diverse obstacles / social dilemmas, which are not as simple as the free rider / tragic commons binary. 2) Knowledge commons operate / are nested within other complex systems. 3) Knowledge commons often depend on shared infrastructure. 4) Informal governance institutions, including trusted leadership, often play key roles. 5) Commons seem to play an important role in early stages of some industries. 6) There are many and complex motivations for individual participants.
In the medical commons context, we see the same things, but here are a few specific insights: 1) clustering and nesting - we see supply side, demand side, and infrastructural commons. 2) Data curation and coordination problems become clear. 3) Trusted leadership becomes critical. Social hierarchies continue to play a role - not clearly egalitarian systems. 4) Commons, esp. in this context, doesn't mean the absence of state intervention.
Jyh-An: What's unique about medical commons?
Mike: It's hard to say in the abstract. This is our first domain specific book. But we chose medicine first in part because Brett and Kathy conducted an early case study in a medical area. Many scholars were engaging in relevant research in health and biotech. It's hard to say that knowledge commons are dominant / particularly salient in medicine. I want to do research into education knowledge commons. Michael Burstein is interested in entrepreneur knowledge commons. Then we can start explaining how different knowledge commons are distinctive, if they are.
Amy Kapczynski: It may be interesting to ask, for example, how communities handle disputes. And it may be value to import this to conventional IP regimes / thinking.
Mike: Ostrom's design principles are curious, because they seem more like rules and guidelines. We spend 6-7 years trying to figure out how to do Ostrom-like inquiry that was flexible enough to investigate what we want to. It is important to think about porting into standard IP literature, and also information science people / IS community. Political scientists, institutional economists, are asking similar questions.
The North American Mitochondrial Disease Consortium: An Emerging Knowledge Commons – Brett Frischmann & Katherine Strandburg
To respond to Amy's last question, we've looked at dispute resolution. For some knowledge commons, it ends up being unimportant.
Amy: We made need more systematic inquiry into dispute resolution. Some case studies get at it, and some don't.
Brett: Ostrom's design principles arose from 30 years of case studies. We need to cast a broad net as we figure out how to get at what we want to know.
Our latest case study looks at another rare disease and a consortium looking at how to treat the disease. Rare disease researchers face challenges - they are treating a relatively small community, and information sharing and coordination is a critical issue. They want drugs / pharma, but you need data to attract pharma, so you need cooperation from a small community of patients and researchers. The consortium we studied, NAMDC, is a nested commons. The network and the consortium within the network is a good test bed for our framework and methodology.
A nested commons is various consortia that share protocols and research ideas at the macro level, and we zoom in on one member of these Rare Disease Consortia. The consortium we looked at has different members of the commons that belong to different institutions, like NIH, Pharma companies, and clinical research sites. And you can zoom in on a clinical research site like a hospital, and find another commons - different researchers, patients, families, and etc.
Main objectives for RDCRCs: 1) Creating pool of research subjects / patient data; 2) sustain / grow community 3) promote knowledge sharing among members of community, and to outsiders; 4) cooperate with patients in setting research agenda priorities; 5) translating research into treatment.
Consortia are complex environments. Researchers hope that solving mitochondrial disease may actually provide information that helps with other treatment.
In applying the knowledge commons framework to our study of this commons, we focused on seven "action areas", grouped in three categories: 1) Creating / sustaining collaborative research community 2) developing / managing shared pool of research subjects / patient data / biological specimens; and 3) managing relationships with pre-existing mitochondrial disease organizations. NAMDC is a new organization facing two challenges - a) treating patients, and dealing with the diagnostic dilemma - how best to treat patients when you have little data and b) developing a community and governance institutions. This lets us see an early history of a knowledge commons.
Two problems manifest: research criteria is sometimes too strict, and sometimes there are data entry problems and conflicting opinions about how to code data received.
Sean Pager: A law question / datapoint. A researcher had a relationship with a group of patients, in a quasi-contractual relationship with patients. When the researcher left, the university kept the data, and a court concluded the university could do so, despite patient displeasure, and patient understanding that their relationship was with the researcher. Are these consortiums thinking about the ownership question?
Brett: Interesting question.
Mike: Data ownership is the undiscovered country w/r/t university research. Despite the facts there are massive amounts of data generated, stored, and used, the lack of attention at all to basic law / governance questions is striking.
Victoria: Or everyone assumes they own it.
Brett: Not held as a trade secret.
Annemarie: My husband works in this field, and there are many collective action / coordination problems.
Brett: NAMDC owns / restricts access to data. Data is deposited at multiple institutions.
Victoria: Participants say they want their data to be open, but standard informed consent principles seem to cut in the other direction.
Brett: There is a data use policy. If you are a NAMDC researcher, you can get access, buy you have to have your research project approved. Universities haven't asserted ownership to date. The NIH grants anonymized public access after five years. And I'm not seeing that patients in this research consortium about open access as much as privacy.
Yvette Liebesman: Some members of these communities are willing to take greater risks.
Amy: If hacking data is a crime, you do own data. People can't use property, so they are trying to use contract to govern data, which functionally works a lot like property. Contract does allow for some control over third parties.
Mike: Who the "my" is in "my data" is a complicated question, between patients, researchers, and the university.
Thursday, August 11, 2016
IP, The Constitution, and the Courts - IPSC 2016
IPSC 2016 - Breakout Session III - IP, The Constitution, and the Courts
Lexmark and the Holding Dicta Distinction – Andrew Michaels
Established Rights, the Takings Clause, and Patent Law – Jason Rantanen
A Free Speech Right to Trademark Protection? – Lisa Ramsey
Lexmark and the Holding Dicta Distinction – Andrew Michaels
How do we distinguish dicta from holding? This project uses the Federal Circuit's dispute in Lexmark (on remand) over the breadth of the holding in Quanta. As Paul Gugliuzza summarized it for me (I was a late arriver), Michael's argument is that, rather than treating holding/dicta as a binary distinction, we should envision a spectrum of the types of things that courts say in their opinions.
A spectrum approach to holding v. dicta might helpfully restrict courts. If a holding says "No red convertibles in the park", we might worry about a case where a subsequent court says the opinion requires a holding of no vehicles in the park. They are not unrelated, but perhaps still dicta. Broader statements should have less capacity to bind than narrower holdings.
Jason Rantanen: This is interesting. We often see doctrinal pronouncement in Federal Circuit's case, much broader than necessary to decide the case. We also see language from earlier court opinions that are clearly dicta. Panels in the Federal Circuit nevertheless use it later. I wonder, however, whether we should take into account how the court is using the language. For example, do we bind the court to holding language only, or might they be appealing to the persuasiveness of early reasoning. Your spectrum focuses on text as it appears in the early opinion, but is that too narrow? Can dicta apply?
Andrew - Sometimes dicta is well considered. But if the court pretends it's a holding, and acts as if it is bound, then they are failing to adjudicate the dispute, and that's a problem.
Paul Gugliuzza - I think the Federal Circuit may engage in some over-use of dicta. Is there a prescriptive payoff to this spectrum? How does the court determine whether to follow the statement or not?
Andrew - The payoff is to require courts to deal more directly with the question of dicta.
Pam Samuelson - I think it's interesting when dicta becomes a holding, over time, and solves a problem. For example, the 3rd Circuit (Whelan) case had a lot of broad dicta that led to a lot of litigation. But the 2d Circuit also included a lot of dicta in Computer Assocs. v. Altai, and the dicta from the that case seems to have knocked out Whelan, and been followed, correctly from Pam's view, in many other circuits.
A subsequent observation from Paul: I think the spectrum provides an interesting descriptive contribution, but I wonder whether, instead of arguing whether a statement is holding or dicta, we'd just end up arguing about (1) where on the spectrum a particular statement falls and (2) whether, given its location on the spectrum, it's binding law or not.
A Problem of Subject Matter: Patent Demand Letters and the Federal Circuit’s Jurisdiction – Charles Duan & Kerry Sheehan
States are passing laws designed to cabin patent demand letters. We might presume that the Federal Circuit has primacy, but this paper argues the question isn't so cut and dried. The Supreme Court, in a case about attorney malpractice, held that there should be a balance struck between the interests of the federal courts and the state's consumer protection laws.
In a demand letter case, we could ask whether 1) this raises a sufficient issue of federal patent law, and 2) is the law unconstitutional or improper. To understand the second question, look to the Federal Circuit's Globetrotter case. The patent holder threatened to send letters to the defendant's clients. The defendants sued for tortious interference, and Fed. Cir. held that the Patent Act preempted acts that prevent sending demand letters.
We argue there is an odd disconnect in the Federal Circuit's analysis. It's a mistake that makes the Federal Circuit's jurisdiction appear larger than it is.
What is the right policy outcome? Should the Federal Circuit have primacy here? The uniformity issues that inspired the creation of the Federal Circuit doesn't necessarily reach every case that touches on patent law, and perhaps these demand letter cases are outside the needs of the uniformity requirement.
Jake Linford: I'm unclear on where the line is between the stuff the Federal Circuit controls and the stuff it doesn't. It sounds circular to me. Help me understand.
Charles: The Supreme Court doesn't take the view that the Federal Circuit is the final arbiter of all patent issues. The Christensen and Gund cases are examples where the Supreme Court put the responsibility with the Seventh Circuit and Texas courts respectively. Questions of validity of the patent may go to the Federal Circuit, but not claims about a clearly invalid patent.
Lisa Ramsey: One of the reasons this is so important is because people will get different results before a state court than the Federal Circuit. Is that right?
Charles: It's unclear. If we sort some cases for the Federal Circuit and others for the states, we might get divergent outcomes.
Pam Samuelson: How does the issue of validity of the patent get to the Federal Circuit if the case starts in state courts?
Charles: Removal is the mechanism.
Pam: If so, then how do we take the ability of the Federal Circuit away? If the Federal Circuit decides whether it has jurisdiction...
Charles: Perhaps the Supreme Court takes cert?
Paul Gugliuzza: What triggers the arising under jurisdiction of the patent clause? Isn't this a matter of patent jurisdiction?
Charles: I'm not sure this meets the Constitutional language...
Paul: The Federal Circuit may rely on Globetrotter, even if I disagree with them.
Paul Gugliuzza sent me the following summary of the Duan - Sheehan paper, which I find much better than my own:
Established Rights, the Takings Clause, and Patent Law – Jason Rantanen
Recent arguments have suggested that when patent laws change, the takings clause may be implicated. I wanted to understand the analytical reasoning behind the takings claim. Takings case law is a deep, Alice-in-Wonderland rabbit hole. How does it actually apply to patent law?
1) Jason agrees that patents are property subject to takings clause. (The Federal Circuit said no, in Zoltec, when the government infringes the patent. The Supreme Court, instead, suggested in dicta in the raisin takings case, that patents are the type of property subject to the takings clause)
2) But it's inappropriate to cut and paste takings case law to patent cases. Patents aren't like rights in real property. We know what a takings of a coal mind looks like. Patents aren't the same. In addition, one key right "taken" is the right to use, and the patent holder doesn't lose the right to use, only the right to exclude or alienate. So application of standard takings cases is difficult.
3) The question is instead whether the new law changes or destroys an "established property right" in the patent. That's the taking, if there is one. What's an established property right? The type associated with property, established with a high degree of legal certainty. See, for example, the Penn Central case, where the Supreme Court is looking for certain rights. If we are looking for high degree of legal certainty, many aspects of patent law has changed significantly and frequently over time. Patent has replaced the entire statutory framework at least four times, with only very minor exceptions. For example, when Congress passed the 1836 Patent Act, it replaced the prior act, and also applied the new act to pending litigation. There are many similarities, but this is a new draft. Same with the 1952 Act: "It shall apply to unexpired patents." Damages changed dramatically, as summarized in Halo v. Pulse. Patent owners used to get treble damages automatically, and they don't anymore. Patent holders in 1836 lost that right while claims were pending.
Lisa Ramsey: One argument against cancellation in the Redskins case is takings.
Jason Rantanen: The Redskins case considers whether the right was valid in the first place, which falls outside of standard takings analysis.
Camilla Hrdy: You may want to consider why the Supreme Court has held a trade secret can be taken. If so, why not a patent?
A Free Speech Right to Trademark Protection? – Lisa Ramsey
The Federal Circuit recently held that the 2(a) bar against registering disparaging trademarks is unconstitutional. Lisa's paper aims to make two unique contributions to literature on disparaging trademarks and the First Amendment:
- Is there a right under international treaties to be able to register a disparaging or scandalous trademark? The answer is no.
- A framework of six elements that should be applied in deciding whether laws against offensive trademarks run afoul of free speech rights.
The U.S. is not the only country that bans registration of scandalous marks. Canada even bans use.
We are members of the Paris Convention, which gives signees the discretion to decide whether to deny a registration on the grounds that a mark is contrary to morality or public order.
Lisa's framework (and 2(a) seems to meet most of these conditions):
- Is there government action? Who regulates the expression?
- Suppression, punishment, or harm: How does the regulation harm expression? Are there unconstitutional conditions imposed on speakers by denying the benefit? Lisa says no, because the benefit being denied is the right to restrict the speech of others.
- Expression. What is being regulated?
- Is this individual or government speech? Whose expression is regulated?
- No categorical exclusion for the expression: Is the regulation justified because of a categorical exclusion, like obscenity or misleading commercial expression?
- Does the regulation fail constitutional scrutiny? Is it content-neutral or content-based? That triggers different levels of scrutiny in the U.S.
What could the Court do if it wants to uphold 2(a)? 1) Say it's not suppression or punishment, and the unconditional conditions doctrine does not apply, under factor 2. 2) It satisfies the scrutiny under 6. 3) Make a "traditional contours" argument like in Eldred and Golan.
Saurabh Vishnubhakat: Pushing on Lisa's state action analysis, if we apply Shelly v. Kramer broadly (where the Supreme Court refused to allow the enforcement of racially restrictive covenants in court, and which may be limited to its fact), that may suggest everything is potentially a state action?
Rebecca Tushnet: If the Court is taking a "hands off" approach to conflicts between trademarks and the First Amendment, then doesn't hands off mean no registration? Isn't that state action?
Lisa: It is state action.
Rebecca: Then isn't everything state action.
Lisa: There are real benefits to registration that impacts the first amendment. Demand letters work better when backed by a registration. And when you have a registration, it's easier to push claims that some see as questionable, like dilution and merchandising cases.
Charles Duan: When it comes to disparaging marks, those have particularly strong expression value - used to express feelings, and therefore even worse to restrict than other registrations.
Pam: Is there an international standard?
Lisa: No, as I read the law, each country has discretion to set up the system it prefers.
Posted by Jake Linford on August 11, 2016 at 08:45 PM in Blogging, Civil Procedure, Constitutional thoughts, First Amendment, Information and Technology, Intellectual Property, International Law, Judicial Process, Property, Science | Permalink | Comments (0)
IP for Characters & Symbols: IPSC 2016
IPSC 2016 Breakout Session I: IP for Characters and Symbols
I summarize the following presentations, and the discussions about them, below the fold. If I didn't know an audience participant, I didn't include a name, but if you are an anonymous commenter, tell us who you are in the comments.
Is Copyright an Author’s Right? An Authorship Perspective on Copyright Law – Mira Sundara Rajan
Works of Fiction: The Misconception of Literary Characters as Copyright Works – Jani McCutcheon
Zombie Cinderella and the Undead Public Domain – Rebecca Curtin
Trademarks, Core Values and Cultural Leadership – Deborah Gerhardt
Intellectual Property in Internet Folklore – Cathay Smith
Mira Sundara Rajan, Is Copyright an Author's Right? An Authorship Perspective on Copyright Law
Copyright is arguably the only regime designed to promote culture, and that should mean providing income to creators. But many authors struggle to make a legitimate income. Mira is concerned that copyright isn't correctly calibrated to that end. At a minimum, authors need more voice.
Lisa Ramsey asks whether Mira plans to frame this as a human right or some other way.
Mira: International law mentions a moral right of authors as a form of human rights. But the Berne treaty may effectively embody human rights in automatic protection at creation.
LRamsey: But then might the human right to copyright conflict with a human right to free speech? And if corporations hold copyright, is it proper to think about copyright as a human right?
Shyam Balganesh: There are two ways to look at copyright - looking at authors rights, and looking at the acts that authors take. You propose that the net income of authors is low, but it's not clear that copyright is the right mechanism to enhance their welfare. Perhaps authorship is the better focus than authors.
Mira: Japan grants to corporations something that looks like a human right in authorship functions, and Japan is an outlier here.
Jani McCutcheon, Works of Fiction: The Misconception of Literary Characters as Copyright Works
Fictional characters qualify as protectable copyright works in large part because of a problematic Learned Hand opinion, Nichols v. Universal Pictures Corp. But to protect characters as works, they must be identifiable. But where is the character perceived? You can't excise the character from the text, and characters are more abstraction than expression. If we are separating characters out as works, is there a right and a wrong way to read or construct the character. If not, it may be impossible to define the character as a protectable work. Characters traverse different media, which further complicates the question.
Deborah Gerhardt: Copyright has so many tests for the same thing. I love clear rules, I love the Feist opinion because it is clear. I'm resistant to your analysis because it gives us an entirely different originality test for characters than anything else.
Jani: I'm not sure we should be looking for a way to define the character, and I wouldn't apply the test to characters at all.
Betsy Rosenblatt: I'm quite sympathetic to the project, but I'll ask a question I've been asked. Why isn't this a problem for all of copyright? Reader response theory suggests all interaction with copyrighted works is dialogic. If so, this is a universal problem for copyrighted works. Perhaps this is similar to [Guy Rub and Margot Kaminski's] zoom-in, zoom-0ut problem.
Jani: This may be a broader phenomenon.
Lisa Ramsey: This reminds me of Betsy's work on Sherlock Holmes. But I'm conflicted. Some characters are well-delineated. If I add Harry Potter to my law school novel, is there any infringement? Of what?
Jami: What do we mean by take Harry Potter? Under my analysis, if little of the expression has been taken, and there is little / no substantial similarity between the works, there is no infringement. Admittedly, the name is potent, but because of trademark significance.
Inayat Chaudhry: What if there are characters like Calvin & Hobbes, and the whole work is based on the characters?
Jami: This is a hybrid work, with visual and literary components, which complicates the analysis.
Seagull Haiyan Song: I agree the current test doesn't work. But if copyright protection isn't the right solution, should there be something else? Protection of character rights as such?
Rebecca Curtin, Zombie Cinderella and the Undead Public Domain
[Is this the best title of the conference?]
Someone tried to register "Zombie Cinderella" as a mark for a doll. There was an initial refusal grounded in confusion with Disney's Cinderella. The Trademark Trial & Appeal Board reversed the refusal, holding the "Cinderella" part of Disney's mark was a conceptually weak indicator, in part b/c of third party dolls on the market, and in part b/c of long history of the Cinderella story.
The danger here is that the signal sent is that Disney should have worked harder to protect the mark. And we see protectable marks for Cinderella soap, cosmetics, etc., and that doesn't seem problematic in the same way. Is Cinderella generic for dolls? That doesn't seem quite right, and genericism doesn't fully animate what the public domain story lends to the underlying good.
Instead, I'm thinking in terms of extending the aesthetic functionality doctrine to cultural elements. Trademark needs a doctrine to deal with the use of fairy tale princesses as trademarks or brands.
Betsy: Aesthetic functionality is what Tyler Ochoa suggested to me instead of genericism as the solution to the Sherlock Holmes problem. I want to make a push for genericism (I'm glad you didn't go to descriptive). You are right - it's not descriptive for dolls, but it is the generic descriptor for the character. You can't call Sherlock anything other than Sherlock, and you can't call Cinderella anything other than Cinderella. We use nominative fair use to deal with it on the infringement side, but we should have to. Here, the term Cinderella is generic for what the product represents. AF is a poor fit: oxymoronic, and it seems to ask whether we buy something because it is pretty / attractive.
Deborah Gerhardt: Perhaps we need a public domain for characters like these.
Ann Bartow: Is this like copyright title, where you don't get protection in titles? [Jake: trademark handles title differently, for books - no protection for a single book, but protection for a series of books (Harry Potter & ___) or magazines.
Ed Lee: I would prefer a more full-throated defense of the public domain created by the copyrighted work aspect. You could try to recapture a trademark public domain - what's the proper boundary of a copyrighted [cultural?] character in the public domain. [JL: Is this then a Dastar problem - no trademark protection because the character as cultural artifact in doll context belongs in the copyright bucket, and protection has expired?]
Laura Heymann: You may benefit from disaggregating the individual aspects of Cinderella and her characteristics. United used Rhapsody in Blue - the fact that it's in the public domain doesn't necessarily mean it cannot have some trademark function, so more careful pulling apart may be valuable.
Deborah Gerhardt, Trademarks, Core Values and Cultural Leadership
A trademark may represent core values around which a community can coalesce. When you look at a brand community, what values does it have? Is the communal identity potential harmed by dilution, for example?
For example, brands are now pressured to make a stand on cultural issues. Target, for example, acted to restrict open gun carry in its stores. Here the brand is used as a tool for political reform. PayPal refused to bring in a business center in direct response to North Carolina's HB 2.
To have a mark strong enough to support a dilution claim, perhaps some identifiable core value is the minimum. If so, dilution harm is a disruption between the core value and the ostensibly diluting use. Goldfish crackers with marijuana - there may be disruption between core values and the brand. Louis Vuitton parody toy handbags? No disruption of the core value, merely playing with the core value. [JL: If that's right, is this anything more than a parody non-parody analysis? Not clear to me.]
Andrew Gilden: Does your "core values" require a popular political stance, or cultural buy in? If the majority turns in favor of equality, is this really a "core" value.
Deborah: Imagine that someone else had interfered with Ashley Madison's ability to signal its core value of secrecy and discretion. That might be a core value that the majority of Americans doesn't "value," but it at the core of Ashley Madison's brand identity.
Andrew: What if Christian Mingle tried to adopt an abandoned Ashley Madison brand.
Deborah: Sometimes core values are forged in crisis.
Seagull: Core values, under your definition, seem like they must be shifting.
Laura Heymann: Do you need to distinguish between value and core attribute?
Cathay Smith - Intellectual Property in Internet Folklore
Are there protectable rights in internet folklore? My project looks at the evolution of Slenderman, his propertization, and the coming movie, to investigate this question, and ask who is benefitted and harmed.
The character first showed up on the Something Awful website, in an image posted by Victor Surge. At first, people posted their own "sightings" of Slenderman without claiming any ownership of the character. But as the character has become more popular, parties have begun claiming ownership rights. At least two short films posted online were taken down after receiving a takedown notice. But the provenance of the ownership is uncertain. The claims lead to a chilling effect.
Is there ownership in Slenderman? Cathay argues no - Slenderman as we understand him wasn't fully developed with the first Victor Surge posts, but collectively as he became popular. She also argues factual estoppel - if the author(s) claim Slenderman is a real person and posted sightings are factual, then copyright claims might be estopped. Rights in the name of the title / name are also weak, under Rogers v. Grimaldi.
Normatively, property rights seem unjust. The Hollywood blockbuster isn't giving back to the community. This is also a nice example of chilling effects. In addition, propertization runs counter to community norms and ethos.
Ed Lee: Copyright might be a bad fit. Perhaps attribution, as a sui generis right, should be respected.
Cathay: Do you mean giving rights to the community, or preventing propertization of something created by the community.
Ed Lee: There are a range of options. I mean something more unleashed / free than standard property rights.
Lisa Ramsey: This reminds me of the orphan works problem - who is the owner? There are also joint works problems. So under current copyright doctrine, if people are fixing individual images, those seem independently protectable. Are the derivative works, derived from what version of the character, and if so, can you get protection in them?
Q: Is this character just a standard bogeyman? How much of this is really new? [Lisa Ramsey: Scenes-a-faire]
Seagull: Might we get something from creative commons analysis.
Q: Other commons uses of musical communities might also be valuable to consider.
Tuesday, February 02, 2016
Thanks to Howard for the invitation and the welcome. I am truly delighted to be guest blogging on Prawfs this month. For those of you I have yet to have the pleasure to know, I am a long-time die-hard proceduralist. I teach Civil Procedure, Administrative Law, and Federal Courts, and this semester for the first time, have added perhaps my first “substantive” course, National Security Law. Although any good proceduralist knows the substance/procedure dichotomy is murky, if not entirely false, I will admit that the move away from procedure has in fact felt uncomfortable, though certainly exciting.
In some ways, teaching National Security Law was the next, inevitable step for me. I have written about procedural aspects of government secrecy for essentially my whole (short) academic career. For a long time I fought full engagement with national security, hoping instead to address problems with procedural rights and remedies for all kinds of secrecy equally. But the truth is that our deepest government secrecy problems today concern security, and national security secrets are not treated the same as other secrets.
As you may have guessed by now, I am planning to use my time here to share my thoughts on the intersection between government secrecy, procedural justice, and national security. Before I get to national security, though, I will begin with a few posts on a slightly orthogonal topic: the corporate and commercial use of the Freedom of Information Act. I will share with you some of the findings I report in my forthcoming article FOIA, Inc., which is based on original data collected from six federal agencies’ records. While I think the findings are, in and of themselves, quite surprising and worthy of consideration, I hope by the end of my series, when I engage more fully with national security secrecy, I can make the connection between these two threads apparent.
I am looking forward to the month!
Thursday, November 19, 2015
Setting the Record Straight on Resettlement of Syrian Refugees
The following is by Jill Goldenziel, former guest Prawf, FOD, and a research fellow at Harvard Kennedy School's International Security Program of the Belfer Center for Science and International Affairs and a Senior Fellow at the University of Pennsylvania's Fox Leadership Program.
In the wake of the Paris attacks, 27 U.S. governors and several presidential candidates have called for Syrian refugee resettlement to be halted. Members of Congress have drafted legislation that would cease resettlement immediately. In light of these debates, it’s important to remember the legal framework governing refugee resettlement in the U.S.—along with some important facts.
- A refugee, according to international law and U.S. law, is someone who flees his country of origin due to a well-founded fear of persecution on the basis of race, religion, nationality, political opinion, or membership in a particular social group.
- Refugees undergo extensive checks before resettlement in the U.S., often lasting 2-3 years. They are first screened by the U.N. Refugee Agency, who then refers them to the U.S. for resettlement. They then undergo a rigorous 13-step process of interviews, background checks, security clearances, and medical screenings, detailed here: https://goo.gl/lw8qTb. Beyond this, Syrians get an extra level of scrutiny.
- At any stage of the process, any refugee deemed to be a security threat is screened out and will not be resettled in the U.S.
- Once refugees arrive, the State Department’s Bureau of Population, Refugees, and Migration coordinates their admission and placement, and the Department of Health and Human Services’ Office of Refugee Resettlement provides case management services, assists with transitions, and helps with short-term medical and financial needs. More about this process can be found here. https://goo.gl/9JizS0.
- In other words, authorities know who the refugees are and where they are going. They will eventually be free to move throughout the U.S., just as other citizens do, but it won’t be easy for them to slip under the radar.
- Governors have virtually no authority not to accept refugees for resettlement in their states if the federal government says they must do so. They can make life difficult for refugees by opposing their presence, but doing so would be against states’ interests in keeping public order.
- Of Syrians resettled in the U.S. since 2011, half are children, ¼ are adults over 60, 2% are single men of combat age, half are male, and half are female.
- During the vetting process, refugees referred by the U.N. to the U.S. for resettlement remain in their countries of first asylum—for Syrians, primarily Jordan, Turkey, and Lebanon. They are not allowed to leave these countries while they are waiting.
- Many refugees don’t want to be resettled in the U.S. because the waiting periods are so long and because the social welfare net is much smaller in the U.S. than in other countries.
- For the financial year ending in 2016, the U.S. has agreed to accept 85,000 refugees, including 10,000 Syrians. By 2017, the number will increase to 100,000 total refugees, and it is expected that the number of Syrians will increase as well.
- This is hardly the first time that the U.S. has accepted refugees from states known to harbor terrorists. The U.S. has resettled more than 100,000 Iraqi refugees since the 2003 invasion. Stringent background checks have ensured that they have posed a minimal security threat to the U.S. security clearances for Syrians are even tougher.
This post is adapted from my fact sheet originally published by the Harvard Kennedy School’s Belfer Center for Science and International Affairs.
Tuesday, November 17, 2015
"It sounds so simple I just got to go"
A few weeks ago I had the privilege of speaking before the Mexican Electoral Tribunal in Mexico City at a conference titled "Two Paths in the Law of Democracy." The conference was sponsored by the Mexican Electoral Tribunal and the University of Texas. The U.S. delegation consisted of five American scholars who study election law and politics, and we presented on various aspects of election law to the researchers, staff, and judges of the Tribunal. It was a fascinating experience and I learned a lot.
Mexico, as a young democracy, is trying to learn best practices for running free and fair elections. Yet there is so much that we can learn from the Mexican experience as well -- both procedurally and substantively.
For example, as the very existence of the Tribunal demonstrates, Mexico has a federal agency that is charged with administering elections. This Tribunal also includes a court that decides all election disputes. Although we, too, have two federal agencies that focus on elections -- the Federal Election Commission and the Electoral Assistance Commission -- neither are very effective, especially because they often deadlock along partisan lines on most important issues. In addition, our regular courts hear election law controversies, and we all know how well that has gone. Mexico has figured out a way to, at least initially, avoid this partisan deadlock, and its Tribunal and court are well-respected and effective at administering elections in a way that people perceive as generally independent. Perhaps this is because the members of the Tribunal are non-political and because of the strong research and education focus of its activities.
Substantively, Mexico has figured out some things that we are still struggling to solve. For instance, partisan gerrymandering is not allowed in Mexican redistricting, which is conducted by the independent Tribunal. (That said, there are still questions about whether Mexico has sacrificed transparency in the process and whether politics still infiltrates the resulting maps.) Similarly, there seem to be fewer Election Day mistakes at the polls in Mexico, perhaps due to the robust educational and training programs the Tribunal puts on throughout the country.
Just traveling to Mexico City was a learning experience itself. It is a fascinating place with beautiful museums, amazing tacos, and extremely nice people. The researchers at the Tribunal are among the most respected people at the agency. There is a true commitment to understanding American election law to discern best practices for their own system. And our hosts showed us genuine sincerity, respect, deference, and collegiality.
This experience demonstrates the importance of looking beyond our borders to improve our own laws and legal structures. Although we often espouse American exceptionalism, we also deal with the same kinds of issues and share the same kinds of struggles as places all over the world. We can learn a lot from other countries, especially newer democracies where the rules are not as entrenched. The Mexican Electoral Tribunal invited the American scholars so it could learn how we do things in an effort to improve its own processes, but of course with any exchange like this, we learned as much, if not more, from them. This further suggests that we should not shy away from looking to international norms when evaluating our own rules and laws--whether in legislative debates or judicial decisions.
Thursday, June 25, 2015
“An Antidemocratic and Largely Foreign Conspiracy”
In my last post, which considered whether abolitionist sentiment should matter to the Justices’ decision-making in Glossip, I noted that part of that sentiment (a good deal of it, actually) is coming from nation-states that have long been abolitionist. Here I’ll expand on that theme, and connect it up with the title of my post, which unfortunately comes from one of the amicus briefs in Glossip.
As most people know, Europe is almost entirely abolitionist (indeed, in all of Europe, only Belarus still has the death penalty, and it’s so close to Moscow that it’s hard to think of it as Europe). And Europe isn’t abolitionist-light—it’s as committed to abolitionism as the United States is to its death penalty. Abolishing the death penalty is a requirement for EU membership, and in 1998, the EU made worldwide abolition a centerpiece of its human rights agenda, declaring that it would “work towards universal abolition of the death penalty as a strongly held policy view agreed by all EU member states.”
These guys are not fooling around. It was the EU that sponsored UN Resolution 62/149, adopted by the UN General Assembly in 2007, which declared that “the death penalty undermines human dignity” and called for all nation-states to institute a moratorium as a first step towards abolition. The vote was 104 nations in favor, 54 against, with the United States leading the dissenters.
The point here is that European abolitionism has been around for a long time, a lot longer than the current snafu over lethal injection drugs, and these countries are Dixie Chicks serious about abolishing the death penalty worldwide. So when the market for thiopental experienced upstream supply problems, and when thiopental’s producer (Hospira) moved its production plant from North Carolina to Italy for reasons that had nothing to do with any of this, is it any wonder that Italy, then Great Britain, and then the EU as a whole, saw an opportunity, and seized it, to put the damper on death penalty drugs?
For decades, EU governments had tried, and largely come up short, to influence the United States with their anti-death penalty views. To borrow a line from my paper with Jim Gibson, it turns out that the best way for European governments to export their abolitionist norms was to stop exporting their drugs.
What’s wrong with that?
That brings me to the Criminal Justice Legal Foundation’s amicus brief in Glossip. I originally wanted to do the Harry Potter “It that must not be named” thing—my attempt at that was yesterday’s post. But that approach has proven unsatisfactory. I’ve got to name it, because it named me, or rather the paper I just co-authored—all under the heading “The United States must not allow its justice to be obstructed by an antidemocratic and largely foreign conspiracy.” Wait, what?
That’s right, that section of the brief cites the paper, and quotes it, to show that foreign governments are “meddling” in our business—our execution business, which it alleges is of “no legitimate concern of European governments.”
I dissent. We are a sovereign state and so yes, we can execute if we please. If we can’t get the drugs to inject someone to death, we can hang them. Or shoot them. Or electrocute or gas them. We can double-down on death, no matter what the EU does.
But those European countries are sovereign states too, and they aren’t “meddling” in our affairs when they make their own decisions in response to ours.
The EU doesn’t have to sell us its drugs. We’re not entitled to them. It’s a free country (or countries, I suppose). If European countries, or nation-states anywhere else, want to use export controls to express their moral disapprobation of the death penalty, they can do that—just like we’ve done it countless times when other countries do things we find morally repugnant.
The CJLF amicus brief states in a footnote when citing the paper that “Amicus does not endorse the views of the authors, who seem to think that European government meddling in American criminal justice policy is a good thing.”
For the record, we don’t take a stand on whether these developments are a good thing, or a bad thing; they’re just a thing. I can say, however, that I don’t endorse the views of amicus any more than it endorses mine.
The US is sovereign, but no more sovereign than other nation states. Rather than fuming about foreigners meddling, we’d be better served to think about execution methods that don’t require the cooperation of nations that don’t want us to execute.
Monday, April 27, 2015
Natural Rights and the "Human Right" to Intellectual Property
I am picking up from where I left off in my prior post on human rights and intellectual property. My concern with embracing a human right to intellectual property arises from the possibility that it will lead to more expansive intellectual property protections. I would tend to agree, therefore, with the report by the United Nations Special Rapporteur in the field of cultural rights (mentioned by Lea Shaver in her comment), which characterizes copyright as distinct from the human right to authorship.
Human rights are generally understood to be natural rights. If one accepts this proposition, how does treating intellectual property protection as a human right relate to the natural rights intellectual property scholarship? The intellectual property and human rights conversation is primarily an international intellectual property conversation. However, the natural rights framing of intellectual property rights is primarily a domestic intellectual property conversation. Both of these frameworks are based on natural rights theories, yet they appear to reach opposite conclusions. With some exceptions, proponents of natural rights justifications for intellectual property tend to support more expansive intellectual property protections. On the other hand, proponents of a human right to intellectual property speak of “balance” and of using human rights frameworks to respond to excessive intellectual property rights.
One might be inclined to dismiss the theoretical foundations for intellectual property as irrelevant to the practical aspects of intellectual property law. However, the framing of intellectual property rights can impact the way private citizens, including judges and policy makers, view intellectual property protection and infringement. Gregory Mandel’s study on the public perception of intellectual property rights, for instance, found that individuals who view intellectual property rights as natural rights tend to support more expansive intellectual property protection. This is consistent with legal scholarship that takes a natural rights approach to intellectual property. My inclination, then, is that distinguishing between copyright protection and the human right to the moral and material interests arising from one’s literary or artistic production is a step in the right direction.
Tuesday, April 21, 2015
A Human Right to Intellectual Property?
The merger between trade and intellectual property, referred to as “strange bedfellows” in the 1990’s, has become the norm as a result of the WTO Agreement on Trade-related Intellectual Property Rights, and subsequent agreements. Intellectual property and human rights may seem like strange bedfellows as well. However, there is a greater connection between these two areas of law than one might imagine.
Article 27(2) of the Universal Declaration of Human Rights (UDHR) provides that “everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.” The International Covenant on Economic, Social, and Cultural Rights contains similar language. A number of scholars have considered the relationship between human rights instruments and intellectual property rights (i.e. Helfer, Yu, Shaver, Land, Chapman, Carpenter, and others). Some (Chapman, for instance) have suggested that this UDHR provision provides a basis for a human right to copyright or patent protection.
Writing on corporations and the possible human right to intellectual property, I found myself reluctant to accept the notion of a right to intellectual property as a human right. I like the idea of considering the impact of intellectual property rights on human rights, as has been done in the access to medicines debate, for instance. However, I am generally uncomfortable with the notion of a human right to intellectual property. Equating the UDHR human right to a right to copyright or patent protection raises a number of issues, and I doubt that it is ultimately a good idea. However, I am willing to be convinced otherwise.
Wednesday, April 15, 2015
Intellectual Property Conversations: International & Domestic
I think it is fair to say that international intellectual property is generally seen as distinct from general (i.e. domestic) intellectual property (IP), both in terms of scholarship and teaching. Thus, from what I gather, international intellectual property panels tend not to draw huge crowds during the annual IP scholars meetings. However, I see a fair amount of overlap between general IP scholarship and the international IP issues that some of us tend to explore. Among others, I see overlap when it comes to questions about the role of IP, the scope of IP rights, and whether the current international model and the mandated levels of intellectual property protection align with societal goals.
Writing international intellectual property scholarship requires an understanding of international law, and trade law in particular. This is due to the merger between trade law and intellectual property law that came about as a result of the World Trade Organization Agreement on Trade-Related Intellectual Property, commonly referred to as TRIPS. Post-TRIPS, there have been a number of other “trade-related” agreements that aim to protect intellectual property rights in the global arena. In addition to various bilateral trade agreements and investment treaties, there are multilateral agreements that have chapters or provisions on intellectual property. These include the Anti-counterfeiting Trade Agreement, the Trans-Pacific Partnership, and the Trans-Atlantic Trade and Investment Partnership. The two latter agreements are currently being negotiated.
There are complexities to the international discussion insofar as it involves some analysis of international legal obligations. However, the intellectual property aspects often address similar issues to those raised by some of the domestic scholarship. The articles discussed by Amy Landers and Dave Fagundes in their recent posts, for instance, are pertinent to some of the recurring themes in international intellectual property scholarship. Both international and domestic scholars might ask: what is the utilitarian calculus, and is society being well served? If not, is there some assumption (i.e. “faith”) that IP rights must be protected due to some natural entitlement? If so, is this beneficial to society or just to the IP producer?
Those of us who write primarily on international IP issues can, and do, draw on domestic IP scholarship for our analysis of international issues. In this globalized economy, maybe it’s time for international IP scholarship to become more integrated into the mainstream so that there can be a greater exchange of ideas between general IP and international IP scholars. Making connections between domestic and international IP, where possible, can only enrich the conversation.
Monday, February 02, 2015
First, I am delighted to be back on Prawfblawgs and want to thank Howard and the team very much for coordinating this. It’s wonderful to see how what Dan started continues to grow and thrive.
Second, in thinking about how to make best use of my time I’ve decided to focus on public health law--to shed some light on the ever-present conflict between an individual's right to manage her own health and the government (state and federal) ability to interfere.
As everyone knows, we in the United States are in the middle of an outbreak of measles that started when two un-vaccinated children who had been exposed to measles visited Disneyland. My focus will be on legal issues, but lets start with an overview. As of today, there are 102 cases reported in 14 states-anyone interested in tracking the outbreak can so here. Measles is that “worst case scenario” virus that Ebola wasn’t—it is highly contagious, spreads through the air, can live a long time on surfaces, and is infectious well before people feel sick enough to stay at home. This is a very helpful graphic. In 2000 measles was “declared eliminated in the United States” because, for an entire calendar year, there had not been a case of one person catching measles from another in the United States. But measles is nowhere near eliminated globally and we haven't had a year like 1999 in a long time. Globally, 400 (mostly) children die of measles every day, 16 die every hour. Unfortunately, “globally” does not, in measles’s case, mean remote areas of the planet, Europe, India the Philippines and Vietnam—are all seeing increases in measles cases.
The good news about measles is that there is a highly effective, widely available vaccine that fully protects 97 out of every 100 people vaccinated. It’s a “threefer” in that the vaccine provides immunity from not just Measles but two other very serious viruses, Rubella (German measles) and Mumps.
Like most vaccines, however, it can’t be given to infants younger than six months old and in the absence of an immediate threat, usually isn’t given until a child is twelve months old. There are also counter-indications (more about them later) about who shouldn’t get the vaccine. Finally, people on chemotherapy or who have had bone marrow transplants lose whatever immunity they had before. Without doing the math that means at any one time, even if every person in the United States eligible to vaccinated had one, many people would still be susceptible to infection. And of course the point of this post on a law site, is that far from everyone eligible to be vaccinated has taken advantage of the opportunity.
The current controversy is a great teachable moment for any law school class considering the balance between the rights of an individual and that of the state. Over the next month, I will be diving deeper into this area of the law to examine the parameters of state authority under the Tenth Amendment and then the different aspects of federal power that create the parameters of governmental authority to prevent, and control outbreaks through public health measures like mandatory vaccination, treatment, quarantine and isolation. Spoiler alert—neither sincerely held religious belief nor autonomy to raise one’s children have prevailed against a state’s interest in requiring vaccination for attending public school.
To be continued.
Posted by Jennifer Bard on February 2, 2015 at 03:10 PM in Constitutional thoughts, Current Affairs, First Amendment, International Law, Law and Politics, Religion, Science, Teaching Law | Permalink | Comments (1)
Tuesday, October 14, 2014
Think about proposing programming for the annual meeting, or participating in a junior scholars workshop. And if you are ever interested in serving on a committee, let Russ Weaver (the executive director) know. The appointments usually happen in the summer, but he keeps track of volunteers all year long.
Posted by Marcia L. McCormick on October 14, 2014 at 11:00 AM in Civil Procedure, Corporate, Criminal Law, Employment and Labor Law, First Amendment, Gender, Immigration, Information and Technology, Intellectual Property, International Law, Judicial Process, Law and Politics, Legal Theory, Life of Law Schools, Property, Religion, Tax, Teaching Law, Torts, Travel, Workplace Law | Permalink | Comments (0)
Thursday, September 25, 2014
Suboptimal Human Rights Decisionmaking
In a forthcoming paper, I explore ways in which human rights violations may result from suboptimal decisionmaking rather than utility-maximizing conduct by state leaders. Most strategies to influence the human rights practices of a country involve efforts to alter its expected utility calculation, either by introducing material incentives so that compliance is more attractive or by changing underlying preferences so that human rights concerns are seen as more intrinsically valuable. These are known in the literature as coercion and persuasion respectively. Drawing on social science research that demonstrates how individuals often fail to maximize their expected utility, my paper argues that at least some human rights violations likely result from such suboptimal decisionmaking. And if that is correct, then the human rights community may be missing out on opportunities to improve compliance that do not require altering a state’s expected utility calculation through coercion or persuasion, but instead work within a state’s existing incentive structure.
For this blog post, I thought I’d describe the three specific causes of suboptimal decisionmaking that I discuss in the paper and invite suggestions on other lines of research to explore. As I discuss in the paper, there are methodological obstacles to applying behavioral research, which is generally based on studies of individuals in laboratories, to real-world state conduct, which involves decisionmaking by groups consisting of experienced elites who might not make the same mistakes that participants in artificial experiments do. I chose the three causes of suboptimality that I did in part because there is a substantial international relations literature that has already attempted to make that translation, and in part because they seemed likely to contribute to the types of flawed decisions that would result in human rights violations. But of course the behavioral literature is quite vast, and I may have missed some other promising avenue.
The first cognitive bias I discuss is loss aversion, and in particular the prediction that people who are operating in the realm of losses will engage in risky behavior in the hopes of obtaining an unlikely gain. Many human rights violations arise from acts of desperation by state leaders who are under severe threat. For example, leaders of an authoritarian regime facing domestic uprisings may take bold steps to reassert their power, resulting in brutal crackdowns. Or a country that has recently experienced attacks by terrorists or rebel forces may take drastic measures to restore security, leading to widespread infringement upon individual liberties. Risk taking can also be a rational course of action, and it will often be difficult from the outside to figure out whether loss aversion is at work in a particular situation. But it is nonetheless valuable to recognize the possibility of loss aversion because it may call for different strategies for improving compliance.
The second bias I discuss is overconfidence, which is the tendency people have to make overly optimistic assessments of their abilities and prospects for success. Overconfidence could contribute to suboptimal human rights decisionmaking at various stages in the process. For example, at the planning stage, state leaders may consciously choose to violate a human rights norm, believing with overoptimism that the righteousness of their conduct will be recognized by the international community while failing to anticipate a costly backlash. Likewise, at the operational level or implementation stage, state leaders may be overconfident in their assessment of the resources needed to meet human rights standards and thus fail to comply even when they intended to do so.
Emotion-based reasoning, the third line of research I discuss, is not a bias per se, but it does produce distortions that undoubtedly lead to some suboptimal decisions. The research on the role of emotions in decisionmaking has many facets, but one specific idea discussed by political scientist Stephen Peter Rosen is that human beings view situations through the lens of particular patterns that were formed during emotionally resonant past experiences. This phenomenon may help to explain human rights violations that take place in the course of longstanding conflicts between religious or ethnic groups. Leaders of a regime that has had a history of clashes with a particular minority group will view new conflicts through the lens of that history, and thus be prone to adopt more repressive policies than a more rational assessment would produce.
That is a very abbreviated sketch, but I hope the basic connection between the various causes of suboptimality and human rights violations seems plausible. I do not argue in the paper that all or even most human rights violations result from suboptimal decisionmaking, but instead merely highlight the possibility as an alternative to exclusively rational explanations. The paper then goes on to explore strategies that the human rights community could adopt in response, with the goal of supplementing rather than replacing coercion and persuasion. In short, since coercion is costly and persuasion often takes a long time, there may be missed opportunities to make more immediate gains in compliance by addressing the causes of suboptimal decisionmaking and thereby clearing the way for states to comply when it is already in their interest to do so.
Thursday, September 18, 2014
Ratification of the Canada-China BIT
It was announced last week that Canada ratified its bilateral investment treaty (BIT) with China that was signed about two years ago. The treaty will take effect on October 1, 2014. At the time of the signing, a Canadian international investment law scholar named Gus Van Harten wrote an editorial warning of dire consequences if Canada ratified the BIT. In particular, he expressed concern that the BIT would impose constraints on Canada's sovereignty and put important policy questions in the hands of foreign arbitrators.
In an earlier phase of international investment, when capital flowed primarily from developed to developing nations, only the latter had to worry about constraints on their sovereignty. But as more capital has begun to travel in the opposite direction, established democracies like Canada will increasingly have to respond to claims brought against them by foreign investors. The Canada-China BIT, like other recent BITs that both Canada and the United States have entered into, adopts a narrower definition of fair and equitable treatment that should in theory avoid the most serious sovereignty concerns described in my prior posts. But as other commentators have observed, some tribunals have proceeded to apply the same broad standard used in arbitral precedent as if the limiting language were not there.
The United States has not yet signed a BIT with China, but the countries did agree recently to restart negotiations. It will be interesting to see whether the United States tries a different approach to fair and equitable treatment or otherwise departs from its model BIT in anticipation of the possibility that the protections of a China-U.S. BIT will be invoked as much by Chinese investors against the U.S. government as by U.S. investors against the Chinese government.
Saturday, September 13, 2014
Investor-State Regulatory Disputes (Part 2)
In my previous post, I described the sovereignty concerns raised by investor-state regulatory disputes, the viewpoint that currently predominates in the literature known as the public law approach, and my criticisms of that proposed framework. In this post, I explain why investment tribunals should instead adapt concepts or tools from contract law and theory and describe in further depth one such proposal.
The basic argument for a contractual approach is that tribunals could do more to approximate how the contracting states themselves would want to resolve these disputes. No one would disagree that, if states actually addressed the issue in their bilateral investment treaties (BITs), their express intent would govern. The problem is that the BITs do not define “fair and equitable treatment” or otherwise provide guidance on how that standard should be applied to regulatory disputes. In contract law, when an agreement has a gap or otherwise contains an ambiguity, courts do not simply abandon the inquiry into the parties’ intent but instead apply other tools to form the best possible estimate. I believe a few of these tools could be usefully adapted for the present context to fill this gap in the BITs.
I do not suggest that recourse to contract principles is mandated by the BITs themselves, but neither of course is the public law approach. Like proponents of the public law approach, I recognize that tribunals have been delegated some authority to develop the law in this area, but I believe a contractual approach is functionally superior to the public law alternative. I noted in my prior post that a public law approach suffers from concerns relating to expertise and legitimacy. A contractual approach would constitute an improvement in both of these respects.
With regard to expertise, a contractual approach would not require tribunals to make the inevitable policy judgments inherent in the public law approach’s balancing test. Instead, tribunals would engage in more traditional modes of legal analysis and thus be in position to develop a more principled jurisprudence. With regard to legitimacy, in addition to the benefits that come with more principled reasoning, a contractual approach would reduce concerns about interference with state sovereignty. That is because tribunals could avoid passing judgment on the substance of state policy and instead intervene only as part of an attempt to effectuate the intent of the contracting states themselves.
For the sake of brevity, I will focus here on one particular contract law principle; the paper from which this post is derived explores two others. The question of when a state should be permitted to revise its regulatory framework without implicating its fair and equitable treatment obligation could be understood as a problem of changed circumstances. In contract law, changed circumstances will sometimes permit a promisor to excuse nonperformance, either because having to perform would be so burdensome as to be impracticable or because the purpose of the contract has been so completely frustrated. One factor for analyzing when excuse is permitted is foreseeability: If the supervening event was sufficiently foreseeable, then nonperformance will not be excused. The rationale is that parties should be expected to have priced the risks of foreseeable supervening events into their agreement, but would want courts to find an implied condition on performance for risks that were outside their contemplation.
A foreseeability test could similarly be used to distinguish between regulatory changes that violate fair and equitable treatment and those that do not. The question would be whether the supervening event was sufficiently foreseeable that the host state should have priced in that risk at the time it ratified the investment treaty at issue. If so, then the state should be liable for losses suffered by investors relating to the regulatory changes at issue. If not, then the investor should have to bear its own losses. Here, as in the contract law context, foreseeability strikes a middle ground that reflects an intuitively plausible balance of the parties’ competing concerns: preserving the regulatory flexibility states need to respond to new developments on the one hand, and ensuring that legitimate investor expectations will not be too readily disrupted on the other.
Like any standard, foreseeability will not always yield definite answers. But in contrast to a proportionality test, a foreseeability approach falls more squarely within the core competence of tribunals and allows them to focus on the contracting states’ intent rather than more policy-oriented questions that they lack the legitimacy to decide.
Note: The draft paper from which this post and my prior one are adapted is not quite ready for SSRN, but I would be happy to share it upon request with anyone who is interested. And of course I welcome comments here as well. Thanks!
Wednesday, September 10, 2014
Investor-State Regulatory Disputes (Part 1)
The project I am currently working on looks for new approaches to the problem of investor-state regulatory disputes. The problem is well-known among international investment law scholars, and a variety of solutions have been proposed, but none in my view has been satisfying.
The basic problem arises when a foreign investor challenges a generally applicable regulation that was enacted by the host state as a good-faith attempt to promote the public interest. Although any effect on the foreign investor’s business would have been incidental, the investor has at least a viable claim under the fair and equitable treatment obligation contained in the bilateral investment treaty between the host state and the investor’s home state. Such claims do not need to show bad faith or other opportunistic conduct by the host state, as the fair and equitable treatment standard has been construed to require a degree of stability in the regulatory framework irrespective of the host state’s motives. To give one particularly controversial example of this increasingly common form of dispute, tobacco companies have challenged regulations on cigarette marketing in a few different countries as violating their rights as foreign investors, even though the regulations are clearly designed to promote public health and not to extract value from them.
The increasing prevalence of such claims is troubling to many because it puts international investment arbitral tribunals in the position of evaluating the policies of host states. In an earlier phase of international investment, when investors were more likely to challenge outright expropriations or other forms of bad-faith conduct, the availability of impartial tribunals was seen as a valuable check on host state abuse. But as investor-state disputes increasingly involve challenges to regulatory efforts that only incidentally affect foreign investment, the discussion has shifted to concerns about the potential for tribunals to interfere with host state sovereignty.
In response to such sovereignty concerns, commentators -- and increasingly the tribunals themselves -- have begun to converge around a view that analyzes regulatory disputes within a public law framework. That means proceeding with special concern for the needs of the sovereign state, recognizing that the parties to the dispute are not co-equal in status but stand in a vertical relationship. Commentators have drawn on analogies to constitutional and administrative law to propose a variety of doctrinal solutions, such as a balancing test that would weigh the host state’s regulatory concerns against the investor’s rights to determine whether the enacted measure is proportional to the burden imposed on the investor.
I am skeptical about the existing proposals and more generally about whether the public law analogy points us in the right direction. While it is true that we entrust domestic judges to employ balancing tests and the like when reviewing domestic legislation, international arbitrators lack the expertise and legitimacy to do the same. One concern is that most arbitrators do not have experience or training in public policy, as they typically come from commercial backgrounds. But the more fundamental problem is that foreign arbitrators are not part of the same political community that enacted the challenged measures and thus lack the expertise (and accompanying legitimacy) a domestic court would have to make the context-sensitive, value-laden judgments required. Others have made similar points, though they go on to propose a solution that, in my view, suffers from the same essential problem and creates additional concerns as well.
Having set up the basic issue and described my concerns about the prevailing ideas in the literature, I will turn in a follow-up post to the alternative path I propose.
Tuesday, June 24, 2014
A victory for the rule of law - apparently not
I had to edit this blog because literally as I posted it, the news changed. Monday, Meriam Ibrahim, a Sudanese mother of two young children who was facing a death sentence for adultery for marrying a Christian man and apostasy after refusing to denounce her faith was released by court order. As I previously wrote, her imprisonment violated Sudanese law. Her release was a victory for the rule of law. International pressure influenced this outcome. But the victory was very short (less than 24 hours). The breaking news is that she was rearrested at the airport and was taken into custody along with her two children and husband.
Unfortunately, Ibrahim is only one of many who have suffered (and are suffering) in this way. There are many who endure tremendous human rights violations because of the lack of rule but who do not receive media attention. Ibrahim's story illustrates my previous point - international pressure is one way to help bolster rule of law in developing countries, however, that may not be enough as evidenced by the re-arrest of Ibrahim. Perhaps governmental officials who are threatened with a charge of a crime against humanity for failure to enforce their countries own laws will feel the weight of international shame and act to uphold the rule of law.
Thursday, June 19, 2014
How to Prosecute Crimes Committed Abroad?
Earlier this year, in U.S. v. Pepe, a former U.S. Marine captain was sentenced to over 200 years in prison for brutally molesting young girls while teaching in Cambodia under the pretense of being a college professor looking out for the Cambodian youth. He was found guilty of a violation of the PROTECT Act, a laudable federal statute with extraterritorial application which prohibits U.S. citizens from molesting children abroad. The Pepe case had been lingering for eight years. The investigation began in 2006, the jury convicted in 2008, and since then the case has been stuck in litigation limbo (a lingering motion for new trial based on an inappropriate relationship between a U.S. law enforcement agent and translator).
I have previously written about the PROTECT Act, and how it, along with numerous other federal statutes that criminalize U.S. citizens behavior abroad, raises an interesting Foreign Commerce Clause (FCC) issue - a matter in which circuit courts are in complete disarray over. Assuming that Congress, under the FCC, has the power to enact laws like the PROTECT Act with extraterritorial application, the next issues to address (the issues which are framing my fall research project) are the criminal procedure implications of investigations of U.S. citizens in other countries and the related evidentiary matters.If the U.S. criminally prosecutes a citizen for behavior abroad, when and to what extent should constitutional guarantees (like search and seizure) apply? It has been suggested that so long as U.S. government agencies train foreign officers, constitutional rights would be secure and the evidence would be admissible. That seems simplistic, and, indeed, case law is unclear. For example, under the "joint venture doctrine," a U.S. agency may be so involved with a foreign investigation that the foreign authorities would be deemed as "acting as agents for their American counterparts." At that point, the U.S. citizen has the right to constitutional protections. But, the circuits are split as to what level of involvement the U.S. agency has to have to give rise to a joint venture.
What about evidentiary issues? For example, in one PROTECT Act case, an NGO was helping U.S. and foreign authorities investigate a U.S. citizen traveling in Asia. When the foreign agents arrested the defendant, an individual from the NGO took the defendant's laptop home which created problematic chain of custody issues at the U.S. trial. From both practical and legal perspectives, securing witnesses and admissible evidence in the prosecution of extraterritorial crimes create extraordinary legal battles. Given how easy international travel has become, these issues will become more and more prominent.
Friday, June 13, 2014
The Two Newest Faces of the Problem with the Lack of the Rule of Law - a Newborn and a 20-month Old
As a tangential follow-up to my previous post concerning the use of a crime against humanity charge as a way to bolster the rule of law, another heart-wrenching story is gaining international attention.
Meet Maya, the first U.S. citizen to be born in a Sudanese prison while her mother was shackled to prison walls. Meet Martin, Maya's twenty-month old bother, who is probably the second youngest U.S. citizen to be sitting in a Sudanese prison. Their father is a U.S. citizen. Their mother is Meriam Ibrahim, a doctor and a Sudanese citizen, who has been sentenced by a Sudanese court to 100 lashes for adultery because she married a non-Muslim man and to death by hanging (once Maya is weaned) for apostasy for refusing to denounce her Christian faith. Ibrahim was found guilty of apostasy because it was determined that she was Muslim even though she testified she was Christian and raised by her Christian mother when her Muslim father abandoned the family. The trial raises due process issues since three of Ibrahim's witnesses were not allowed to testify.
There are clear human rights violations and violations of Sudanese law. Ibrahim's imprisonment violates the International Covenant on Civil and Political Rights, which, since Sudan has ratified the treaty, guarantees that all Sudanese citizens "have the right to freedom of thought, conscience and religion" and due process of law. Sudan has also ratified the African Charter on Human and People's Rights which also guarantees freedom of religion and due process. Indeed, Sudan's own 2005 interim constitution specifically guarantees the "right and freedoms enshrined in international human rights treaties" ratified by Sudan. Ibrahim's case (and the impact on her children) graphically illustrates the rule of law problem - the laws are in place but not enforced.The pressure from the international community caused some movement, albeit ineffectual as it currently stands. A few weeks ago the Sudanese government pledged Ibrahim's release, but recanted a few days later. This probably is not surprising given the government is headed by Omar al-Bashir who has an outstanding ICC warrant for CAH for his actions in Darfur. What can be done? What should be done? Perhaps with continued and more world-wide pressure (which should be headed by the U.S. given that some of the youngest U.S. citizens - Maya and Martin - are sitting in deplorable conditions), there might be another small step forward even if it simply means more discussion about and attention given to the lack of the rule of law and the consequential human rights violations of women and children. More legal attention and monetary support should be put in place to uphold the rule of law.
Thursday, June 05, 2014
'Bring Back Our Girls' - Failure to Enforce the Rule of Law as a Crime Against Humanity
The media has been saturated with stories of violence against children and women in developing countries and the lack of meaningful action by government officials. As a recent example, hundreds of girls in Nigeria were kidnapped from a boarding school and Nigerians have criticized the government for failure to sufficiently act. In India, two girls were raped and hung from a mango tree while, villagers allege, the police stood by. In Pakistan, a pregnant woman, while literally standing on the courthouse steps of a high court, was stoned to death by relatives even though such "honor killings" are illegal.
Many developing countries have well-written laws dealing with such issues as violence against women and children, bonded labor, property grabbing, and the general administration of justice, but a large swath of the most vulnerable part of the population (the poorest, the women, and the children) fail to receive protection or justice. No doubt, there is a rule of law problem.
Rule of law issues are complex. Developing countries do not have the funds to enforce laws. Citizens of developing countries are often unaware of their rights and protection under the law. Corruption is a problem throughout law enforcement agencies and the justice system, from the police to the prosecutors and the judges. The international community needs to do more to help battle this corruption (of course, this is not to say that we don't have our own major corruption problems on the domestic front). The rule of law problem is so pervasive in some of these countries that all the good NGOs do by providing food, education and health care is overshadowed by the violence that the most vulnerable populations face daily. Focus (and funds) should be shifted away from simply providing material aid, and instead more attention should be given to establishing the rule of law.
It doesn't matter how healthy or educated a young girl is if she is raped without any recourse or murdered without any justice. This is the subject of my current research project where I argue that the failure by high ranking government officials to enforce their countries' laws could establish a crime against humanity under the Rome Statute. A systematic failure to protect a large portion of the population (i.e., women and children) from murder, rape and other inhumane acts fits the definition of a crime against humanity. There are some potential problems with this analysis, though.
Even if the failure to enforce laws (an act of omission) could constitute a crime against humanity, could anyone really be charged? Many developing nations (including India and Pakistan) have not ratified the Rome Statute. However, the U.N. Security Council has referred a few matters (Sudan and Libya) to the International Criminal Court. In the Sudan matter, the ICC issued an arrest warrant for the leader of Sudan under the Rome Statute even though Sudan is not a party member. With enough international pressure, perhaps the Security Council would act again. Even if it did not, some of the countries where gender and children violence is pervasive are parties to the Rome Statute (like Nigeria).
Second, and perhaps more important, even if a government official is charged with a crime against humanity, so what? The ICC is struggling with number of issues, including the problem of enforcement. Despite the issues surrounding the ICC, however, the shame brought upon an individual with a crime against humanity charge (or investigation) might send a strong message that the international community believes in the rule of law.
Thursday, May 01, 2014
UF Law's (and My) New MOOC: The Global Student's Introduction to US Law
I am now officially part of a MOOC, which went online today. It has been a learning experience (!!), with the biggest lesson being that it is nowhere as easy as you might think to put one of these courses together. I plan to blog about the experience at length when I get a chance. For now, though, you might be interested in viewing the University of Florida Law School's foray into the great MOOC experiment: The Global Student's Introduction to US Law.
The course description is as follows:
In this course, students will learn basic concepts and terminology about the U.S. legal system and about selected topics in the fields of constitutional law, criminal law, and contract law. A team of outstanding teachers and scholars from the University of Florida faculty introduces these subjects in an accessible and engaging format that incorporates examples from legal systems around the world, highlighting similarities to and differences from the U.S. system. Students seeking an advanced certificate study additional topics and complete assignments involving legal research that are optional for basic level students. The course may be of interest both to U.S. students contemplating law school and to global students considering further study of the U.S. legal system.
My Senior Associate Dean Alyson Flournoy spearheaded the project, and we had excellent technical assistance, which was crucial, by Billly Wildberger. My colleagues Pedro Malavet, Jeff Harrison, Claire Germain, Loren Turner, Jennifer Wondracek, and Sharon Rush all provided lectures, and our research assistant Christy Lopez is providing support with the discussion forums.
Wednesday, September 04, 2013
The Legal Case for Intervening in Syria (Anthony Colangelo Guesting)
An International Legal Case for Military Intervention in Syria
Does international law allow U.S. military intervention in Syria? The Obama Administration has advanced a number of possible justifications including self-defense, halting civilian deaths, and debilitating the Assad regime’s chemical weapons capabilities. None of these justify intervention on the current state of international law.
Yet that doesn’t mean international law would view a U.S. intervention as illegal in the long run. International law is a tricky sort of law, and the United States could make a strong legal argument that intervention would help change the law to allow interventions to halt mass human rights abuses. Going forward, this argument could retrospectively ratify U.S. intervention in Syria and give the United States a central role in formulating international legal criteria for future interventions.
Legal arguments against intervention are straightforward and rely principally on treaty law. Most prominently, the U.N. Charter prohibits the “use of force against the territorial integrity or political independence of any state.” There are only two ways intervention is permissible under the Charter: the Security Council authorizes it, which has not and will not happen, or the United States acts in self-defense. Even the very best international lawyers can’t stretch the doctrine of self-defense to cover a U.S. strike in these circumstances. Even if they could, that’s both an awful and an awfully expansive precedent.
The Administration has also seized upon the Assad regime’s evident use of chemical weapons as a violation of international law that justifies intervention. Yet here too, treaty law cuts the other way. Syria is not a party to recent treaties banning the use of such weapons. Because treaties bind only states that have agreed to be bound by them, Syria’s use of chemical weapons cannot violate the treaties. The only treaty banning the use of chemical weapons Syria is a party to addresses international, not internal, conflicts. And in any event, it doesn’t authorize states to attack other states that violate it. In sum, treaty law does not allow intervention in Syria.
There is, however, another type of international law that might allow intervention, called customary international law. Unlike treaty law, customary international law doesn’t derive from formal agreements among states. Instead, it arises from the practice of states accompanied by what international lawyers call opinio juris, or states’ intent that their practice carries legal significance.
States can usually treaty around custom much the same way private individuals can contract around the norms that govern our everyday behavior. But there are some rules of customary international law that cannot be contracted around and that override treaties inconsistent with their rules. These are called jus cogens, or peremptory norms of international law. Jus cogens contain prohibitions on serious international law violations like genocide, torture, slavery, and crimes against humanity. To illustrate, Hitler and Mussolini can agree by treaty to afford each other’s nations certain preferential trade treatment. But they cannot enter into a treaty legalizing genocide. Jus cogens would swoop in to invalidate that treaty as contrary to a peremptory norm of international law.
Where does this leave the international legal justification for intervention in Syria? Many favoring intervention have cited jus cogens prohibitions on mass human rights abuses as justification. But that argument is flawed because the jus cogens norm does not directly conflict with the U.N. Charter’s prohibition on the use of force. That is, the Charter doesn’t authorize human rights abuses—in fact, just the opposite: it seeks to “promot[e] and encourage[e] respect for human rights.” Thus even if one can safely classify the Assad regime’s abuses as violations of jus cogens, that only gets the argument halfway to intervention. To justify intervention, the jus cogens norm would need to encompass not only a prohibition on human rights abuses but also the capacity of other states to enforce that prohibition. This latter enforcement component is presently lacking under the law. Finally, the Charter’s prohibition on the use of force isn’t some run-of-the-mill international rule. It is a cornerstone of the postwar international legal system that outlaws aggressive war. For this reason, the prohibition on the use of force is itself considered a jus cogens norm.
Nonetheless, it may be time for a change. Because customary international law arises from state practice, as practices change so too does the law, including the law of jus cogens. One way customary international law changes is states break it to form new norms; breaches effectively plant the seeds from which new norms grow. Although a breach may violate international law when it occurs, the law may develop to ratify that breach as the early stage of a new norm’s development.
If the United States intervenes in Syria, it has an initial international legal choice to make: it can ignore international law or seek to justify intervention within it. The second option’s benefit is that if state practice develops to allow intervention the illegality of U.S. action will wilt as the new norm blossoms. Yet some may view this option as undesirable precisely because it may prompt other states to accept the legality of intervention. Reciprocity is also a cardinal rule of international law: if it’s legal for us, it’s legal for you.
The question then becomes whether it’s better to operate within the law or outside it. For other states also will face that same initial choice above, to which this first-order reciprocity norm also extends; that is, the initial choice to ignore law or to justify their actions within it. In this respect, the United States may actually derive two distinct benefits from choosing to justify its actions under international law: a retrospective ratification of U.S. intervention and the ability to formulate criteria for a budding international law of humanitarian intervention.
Friday, May 31, 2013
Non-State Law Beyond Enforcement II
With grading finally behind me, I wanted to post again about non-state law "beyond enforcement." The question I've been exploring is in what ways do various forms of non-state law (such as international law and religious law) function as law even when these forms of law lack the ability to enforce their legal rules?
In my last post, I mentioned a forthcoming book by Chaim Saiman, which conceptualizes Jewish Law as "studied law" as opposed to enforced law. In making this point, Saiman highlights some Jewish legal doctrines that the Talmud explicitly notes are not meant to be applied in the public square, but simply dissected in the study hall. In this way, Saiman disaggregates the very concept of Jewish law from the enforcement of Jewish law.
Now there is a tendency to think that religious law - as opposed to other forms of non-state law - is particularly susceptible to manifesting law-like characteristics outside the context of enforcement. Religious law, at its core, is intended to connect individuals to something outside of this world and so it is not surprising that certain facets of religious law might be directed not to practical this-world enforcement, but to achieving some other-worldly religious value.
While I think this sentiment is true, over-emphasizing the point would lead us to miss the ways in which other forms of non-state law exhibit law-like features even in the absence of enforcement. At the symposium I ran a few weeks back on "The Rise of Non-State Law," Harlan Cohen (Georgia) presented a great paper titled ""Precedent, Audience and Authority." The paper wrangled with the following question: why is it that, even though international law denies international precedent any doctrinal force, precedent is cited constantly as authority in any number of international law fields?
To answer the question, Cohen emphasizes the way in which law - and in particular international law - is a practice with its own (often unspoken) interpretive rules and norms. On this account, Cohen focuses on how precedent speaks to the members of the international law community - the ways in which using precedent generates legitimacy for international law in the eyes of those within the international law community.
One of the striking features of Cohen's analysis - at least striking to me - is the persistence of precedent in the eyes of consumers of law even absent an actual doctrinal basis. It is almost as if, at least in certain legal communities, that law struggles to separate itself from an interpretive method that discounts precedent. All of this struck me as a bit Dworkinian, capturing another important way in which non-state law can function as law outside the context of enforcement. Put differently, certain legal systems can be identified as being systems of law not simply based upon the extent to which the law is enforced, but based upon certain methods of interpretation endemic to law.
In this way, Cohen's notion of international law as a practice parallels Saiman's formulation of Jewish law as studied law. In both instances, we find important ways in which non-state law functions internally as law based upon the way in which the law is interpreted and analyzed. On this account, non-state law can function as law irrespective of whether it is enforced.
Friday, May 17, 2013
Non-State Law and Enforcement
As I mentioned in my last post, I've been doing some thinking about what it means to be non-state law and looking to different types of non-state law - such as international law or religious law - to consider some common dynamics that consistently arise.
One theme that regularly emerges - and is often discussed - in the context of non-state law is the problem of enforcement. Put simply, without the enforcement power of a nation-state, non-state law must typically find alternative mechanisms in order to ensure compliance with its rules and norms. This hurdle has long figured into debates over whether one can properly conceptualize international law as law.
But the focus on enforcement is problematic for a couple of reasons. First of all, the challenge of enforcement for non-state law is in many ways overstated. For example, in a 2011 article titled Outcasting: in Domestic and International Law, Oona Hathaway and Scott Shapiro explored this issue, emphasizing - especially in the context of international - how certain forms of nonviolent sanctions, such as denying the disobedient the benefits of social cooperation and membership, can be deployed as a form of non-state law enforcement. Indeed, the use of outcasting has long been prominent in other areas of non-state law, such as a method to enforce religious law within religious communities.
There's, of course, much more to be said on the relationship between non-state law and enforcement (something I may explore in a subsequent post). But too heavy an emphasis on this piece of the non-state law puzzle is problematic for a second reason - it too often obscures other important ways in which non-state law functions as law. In my next couple of posts what I'd like to do is consider other ways in which various forms of non-state law function as law by focusing more directly on the internal practice of law within the relevant communities.
Tuesday, May 07, 2013
Back in 2011, I attended a symposium on Legal Positivism in International Legal Theory: Hart’s Legacy. The conference was a bit outside the range of topics I usually write about (e.g. religion meets private law). But presenting at the symposium drove home the point to me that international law and religious law scholars are contending with similar inquiries, many of which flow from one core question: what does it means to be non-state law?
When I talk about non-state law, I'm thinking collectively of various forms of law - from religious law to transnational law to international law. Of course, thinking about these forms of law outside of the law of the nation-state has long been at the center of the legal pluralism project. But what is often missed is that lessons from international law are instructive for religious law - and vice versa.
This often overlooked opportunity was largely the motivation behind the "Rise of Non-State Law" symposium I organized last week. To my mind, the papers, presentations and discussion at the symposium were extremely productive and got me thinking even more about the overlap between various forms of non-state law. In my next couple of posts, I'm hope to say a little bit about non-state law, building on some of the insights from the symposium.
Thursday, May 02, 2013
Great to be back and greetings from Washington!
It's great to be back at Prawfs for another guest-blogging stint. I'm looking forward to spending the month talking a bit about some of my favorite topics such as co-religionist commerce, religious arbitration, and non-state law.
My growing interest in non-state law largely traces to my sense that conversations in both international law, transnational law, and religious law share much in common (e.g. discussions of what is law, can there be law without enforcement, how should the state treat competing legal norms etc.). To further this interest, I'm running a symposium in Washington, D.C. today sponsored by Pepperdine Law School and the American Society for International Law titled "The Rise of Non-State Law." The symposium is part of a series run by ASIL's International Legal Theory Interest Group and the papers from today's symposium will eventually become part of a volume published by Cambridge University Press.
I must say the papers submitted (and being presented) by the participants are truly fantastic and have led today to some great conversation and debate. For those who share the interest, here's the full schedule for the day:
8:30 a.m. Breakfast (Tillar House)
9:00 Panel 1—Global Legal Pluralism: Trends and Challenges
- Moderator: John Linarelli (Swansea)
11:00 Panel 2—Non-State Law and Non-State Institutions
- Moderator: Donald Earl Childress III (Pepperdine)
1:00 p.m. Lunch
2:00 Panel 3—The Role of Religion and Culture in Non-State Law
- Moderator: Mortimer Sellers (Baltimore)
4:00 Open Forum
5:00 Closing Comments
Wednesday, April 24, 2013
Transplant Tourism: Hard Questions Posed by the International and Illicit Market for Kidneys
The Journal of Law, Medicine, and Ethics has just published an article by me on transplant tourism, that discusses the burgeoning international market for buying and selling kidneys. I review the existing data from Pakistan, Bangladesh, and India, which is pretty deplorable. As I show the vast majority of these sellers are poor and using the money (which is a significnat sum in terms of what they earn, even though in the end only 2/3 is paid) to try to buy themselves out of bonded labor, pay off familial debts, or try to mount a dowry. Many are misinformed or decieved about the health consequences for them and the needs of the person who will receive their kidney. Once they have agreed to sell they are often pressured not to renege. They are often released too soon post-transplant compared to what is optimal for a transplant, and their self-reported health post-transplant is worse. Many experience significant social stigma as a "kidney man" (or woman)and the 20-inch scar (the more expensive way of doing the procedure would reduce the scar size) marks them for life and makes it difficult for them to marry. Most express significant regret and would advise others not to undertake the operation.
Despite these grave facts, as I argue in the paper (and in greater depth for many of these arguments in the chapter on transplant tourism in my new book on medical tourism under contract at Oxford University Press), many of the traditional justifications from the anti-commodification literature -- arguments relating to corruption, crowding out, coercion, and exploitation -- do not make a convincing case in favor of criminalization. If a ban is justified, I argue the strongest arguments are actually about defects in consent and justified paternalism, on the assumption that criminal prohibition is a second best regulation in the face of the impossibility of a more thoroughly regulated market.
I then examine what means might be used to try to crack down on the market if we concluded we should. I evaluate possibilities including extraterritorial criminalization, professional self-regulation, home country insurance reimbursement reform, international criminal law, and of course better organ retrieval in the patient's home country.
I will keep writing on this topic, including for my new book, so even though this paper is done feel free to email me your thoughts.
Tuesday, December 18, 2012
Foreign Travel by Members of Congress (Part III)
As I explained previously (here and here), I’ve been writing a piece that examines Congress's involvement in international diplomacy. One half of the article documents the nature and extent of the contemporary practice, while the other analyzes that practice from a separation-of-powers angle. As the data in the last post demonstrated, legislative diplomacy in the form of CODEL travel is a major form of engagement between the United States and foreign countries. Now I want to discuss some of the reasons why the numbers from the last post are significant.
First, the findings at least partially contradict the common perception that CODEL travel is nothing more than a series of taxpayer-funded boondoggles for profligate legislators. With places such as Afghanistan, Iraq, and Pakistan among the most common destinations, and with members of congressional committees such as Foreign Affairs and Armed Services traveling more than their counterparts on other committees, it is apparent that something other than vacationing is going on. Wikileaks confirms as much—an overwhelming majority of the State Department cables show legislators using foreign travel to gather information about economic, political, and social conditions in host countries. The idea, it seems, is that legislators can educate themselves by meeting with foreign officials and personally observing foreign conditions, and in turn use their knowledge to develop more effective legislative solutions to foreign policy problems. Wikileaks shows that another rationale for CODEL travel is lobbying; legislators often use their meetings with foreign officials to press foreign governments to act in ways that promote U.S. interests or, less frequently, the interests of specific constituents. One might fairly question whether CODELs are an effective means of pursuing these goals, but it’s clear that the goals generally are not sightseeing and leisure. The intermittent public debate on CODEL expenditures needs to acknowledge that.
Second, the results show that the conduct of foreign relations is, from an institutional perspective, more complicated than commonly assumed. In practice, diplomacy is not an executive prerogative; it’s a crowded field occupied by the President, State Department, and other executive actors, plus both chambers of Congress. And in practice, the Senate is not necessarily more involved in foreign relations than the House. As I explained before, House members participated in CODELs even more frequently than their Senate counterparts in 2009, both in aggregate and on a per-legislator basis.
Finally, I think the results are significant because they call for some new thinking about the separation of powers in the context of foreign affairs. A few aspects of the doctrine should be pretty straightforward: Legislative diplomacy generally cannot intrude upon diplomatic functions—such as negotiating treaties—that Article II assigns to the President, and communications carried out for the purpose of fact-finding are constitutional as an exercise of Congress’s implied power to investigate in furtherance of enumerated Article I powers. But beyond that, formalist analysis is probably unable adequately to account for the contemporary practice. For example, as a textual matter is it unclear why CODELs can lobby foreign governments, and why Senator Kerry could undertake missions to Pakistan and Afghanistan on President Obama’s behalf. The alternative is to adopt a functionalist analysis that renders legislative diplomacy constitutional as a form of constitutional custom, or as the product of an executive delegation of Article II diplomacy power, but doing so results in a series of additional complications. Functionalism, for example, typically isn’t used for converse analyses of these kinds; the more common inquiry—such as in Youngstown—is whether custom or legislative delegation supports a gloss on executive power. Moreover, the possibility of executive delegation would operate in tension with the principle of the unitary executive. In working through these issues, I hope to develop a few insights for con law folks and those involved in legislative diplomacy, and also to illustrate one way in which Congress exerts more influence in foreign affairs than is often assumed. I’ll share a draft soon on SSRN.
Thursday, December 13, 2012
Foreign Travel by Members of Congress (Part II)
As I mentioned in my previous post, I’ve been writing an article on the subject of international diplomacy by members of Congress, with an emphasis on congressional delegations (“CODELs”) to foreign countries. Information about CODEL practice has been pretty limited, so one of my purposes has been simply to provide a more complete account of how frequently CODELs travel overseas, who is participating, where they go, and what they do when they get there. To do so, I collected information from the State Department cables that Wikileaks released to the public in 2010-11, many of which provide detailed accounts of meetings between members of Congress and foreign governments. I also collected information from official reports on publicly and privately financed congressional travel. Some of the reports were published in the Congressional Record pursuant to federal statute; others were published in accordance with House and Senate ethics rules. The data is quite voluminous, so I focused only on travel that happened in 2009—the most recent year for which the available information is the most complete. Counting each country visit by each legislator as one trip, and adding the data from the various sources, I came up with the following.
A total of 420 federal legislators, or approximately 79% of the combined membership of the House and Senate, completed slightly more than 2000 trips abroad in 2009. Members of the House were responsible for 84.5% of this travel, for an average of 4.0 trips per member, while members of the Senate were responsible for 15.5%, for an individual average of 3.2 trips. Legislators from both parties participated in comparable measure: Democrats averaged 4.09 trips per legislator, while Republicans averaged 3.56.
Legislators engaged in diplomacy unevenly. While some never went abroad even once, fifty-four legislators made at least 10 foreign trips during the year; the most frequent fliers were Eni Faleomavaega (24 trips) (D-AS), Jim McDermott (21) (D-WA), Adam Smith (17) (D-WA), Gabrielle Giffords (16) (D-AZ), Sheila Jackson-Lee (16) (D-TX), Lindsey Graham (15) (R-SC), Gregory Meeks (15) (D-NY), Jeff Miller (15) (R-FL), Solomon Ortiz (15) (D-TX), Dana Rohrabacher (15) (R-CA), and Joe Wilson (15) (R-SC). By comparison, Secretary Clinton made 51 trips to foreign countries over the same period.
Legislators traveled widely. CODELs visited at least 117 countries in 2009. The most frequent destinations were Afghanistan (139 trips), Israel (134), Kuwait (119), United Arab Emirates (86), Germany (73), Iraq (72), Pakistan (53), Jordan (49), Belgium (47), and Italy (47). An overwhelming majority of this travel was publicly funded.
Finally, members of congressional committees with jurisdiction over foreign affairs and related matters were more likely to participate in CODELs than other legislators. The tables below contain information for the committees with the highest and lowest member-trip averages.
Table 1 – House Committee Travel (2009)
Total Member Trips
Trips Per Member
Standards of Official Conduct
Education and Labor
. . .
. . .
. . .
Table 2 – Senate Committee Travel (2009)
Total Member Trips
Trips Per Member
Agriculture, Nutrition & Forestry
. . .
. . .
. . .
In my next post, I’ll offer a few observations about why I think these results are significant, and why they raise some interesting separation of powers questions.
Monday, December 10, 2012
Foreign Travel by Members of Congress (Part I)
The Constitution allocates power over the conduct of foreign relations primarily to the executive, but diplomacy by Congress is common. Members of the House and Senate frequently travel overseas as part of congressional delegations—or “CODELs”—to meet with foreign officials, and foreign officials often make stops on Capitol Hill to discuss legislation. In recent years, visiting heads of state such as Benjamin Netanyahu and Lee Myung-bak have even issued formal addresses to Congress. Moreover, these practices are nothing new; federal legislators and foreign officials have been communicating with each other ever since the First Congress convened in 1789.
I think these practices are fascinating for a couple of reasons. First, no one really has a sense for how frequently they occur, where legislators are traveling, or why they go there. News media rarely mention foreign lobbying of Congress. Some media outlets have called attention to expenses incurred by Nancy Pelosi and others during various trips abroad, but there are no complete reports on the nature and extent of contacts between federal legislators and foreign governments. Yet these contacts constitute a significant mode of engagement between the United States and the rest of the world, and have a real impact on the way in which other nations perceive U.S. policy.
Second, I think the diplomatic contacts are fascinating because they challenge the prevailing understanding that diplomacy is a prerogative of the executive branch. Most analyses don’t seem to acknowledge that legislative diplomacy occurs, much less address the extent of its constitutionality. One resulting problem is theoretical: the gap between theory and practice means either that Congress systematically violates the separation of powers, or that the prevailing understanding of executive power is at least incomplete, and possibly incorrect. A second problem is practical: lacking a theoretical foundation, legislative diplomacy occurs in a constitutional void that imposes no principled limits on the conduct of members of the House and Senate, and offers no guidance on the extent to which planned communications are permissible.
I’m currently writing an article—entitled “Legislative Diplomacy”—that addresses these issues. One purpose is empirical. I use evidence from Wikileaks and a variety of public reports on congressional travel to provide an extensive account of the nature and volume of contemporary diplomacy by Congress. This evidence shows that legislative diplomacy is surprisingly frequent, widespread, and longstanding. The other purpose of the article is to offer a constitutional analysis of the contemporary practice. In my next post, I’ll share some of the data I collected.
Monday, December 03, 2012
The Arms Trade Treaty: A Response to the Second Amendment Critique
Shortly after the election, the Obama Administration announced its support for U.N. efforts to develop a new treaty regulating international trade in conventional arms. The terms are still far from settled, but draft provisions from a U.N. conference last summer provide a rough guide on how the treaty might work. I'd like to highlight some of the key provisions and then address a Second Amendment objection that I’ve heard from some treaty critics.
The latest draft suggests that the treaty would have several basic features. First, it would establish a limited number of categorically prohibited international transfers. These include transfers in violation of a measure adopted by the U.N. Security Council pursuant to the Council’s peacekeeping authority; transfers in violation of other international obligations; and transfers made for the purpose of facilitating genocide, crimes against humanity, or certain categories of war crimes. Second, the treaty would limit the power of states to export conventional arms by requiring assessments on whether proposed exports would contribute to or undermine peace and security. Mandatory considerations would include whether the arms could be used to commit a serious violation of international humanitarian law, human rights law, or an offense under international treaties relating to terrorism. In the event of an “overriding risk” of one of these consequences, the treaty would prohibit the exporting state from authorizing the transfer. The treaty would also require exporting states to “consider taking feasible measures” to make sure that the arms are not diverted to the illicit market, used to commit gender-based violence, or used by transnational organized crime. Third, the treaty would impose obligations on arms-importing states. These parties would be obligated to provide information to help their exporting counterparts complete the required risk assessments. Importing states would also have to “put in place adequate measures that will allow them to regulate, where necessary, imports of conventional arms,” and “adopt appropriate measures to prevent the diversion of imported conventional arms . . . to the illicit market or for unauthorized end use.” Other provisions impose restrictions on brokering and mandate record-keeping and reporting.
Some U.S. critics of the draft treaty have argued that it would violate the Second Amendment, but I think this objection has some major weaknesses. First, most of the restrictions would simply have no effect on the right to keep and bear arms. Here’s the proposed list of regulated items: battle tanks, armored combat vehicles, large-caliber artillery systems, combat aircraft, attack helicopters, warships, missiles and missile launchers, and “small arms and light weapons.” As Heller explained, the Second Amendment’s reference to “arms” applies only “to weapons . . . not specifically designed for military use and . . . not employed in a military capacity.” The result is that all but the last items on the list—“small arms and light weapons”—plainly fall outside of constitutional protection. Moreover, even to the extent that the treaty applies to arms covered by the Second Amendment, significant portions of the treaty would not interfere with the right to “keep and bear” those arms. For example, provisions that would restrict exportation—in a sense the very opposite of “keep[ing]” and “bear[ing]”—from the United States surely raise no constitutional problem. And as a practical matter, it’s hard to see how the prohibitions on transfers in violation of Security Council measures or for the purpose of facilitating genocide, crimes against humanity, or certain categories of war crimes would interfere with the right of U.S. citizens to keep and bear arms.
The only non-frivolous argument against the treaty focuses on its import restrictions. As explained above, the treaty would require states to “put in place adequate measures that will allow them to regulate, where necessary, imports of conventional arms,” and “adopt appropriate measures to prevent the diversion of imported conventional arms . . . to the illicit market or for unauthorized end use.” The opponents’ argument seems to be that these provisions would require the United States to adopt restrictive measures that would themselves infringe upon the right to bear arms. But several observations undercut that argument. First, it’s actually not clear that the provisions would require the United States to adopt any new restrictions. Federal law currently imposes permit and registration requirements on arms importers, bars some imports based on country of origin, mandates broker registration, and authorizes criminal penalties against violators. There is no textual basis for concluding that these measures are anything short of “adequate” and “appropriate.” As long as that’s the case, no new import restrictions would be necessary in the United States, and the treaty would violate the Second Amendment only if the existing federal restrictions do. Treaty opponents seem unwilling to challenge longstanding federal law in this way.
Second, even if the treaty were to require something more restrictive than current federal law, it’s still not clear that the additional restrictions would be unconstitutional. Post-Heller, lower courts have held that the level of scrutiny applied to a regulation depends on the degree to which the law burdens the right and the nature of the conduct being regulated. Where a regulation does not impose a severe burden or does not implicate the right’s core—i.e., “defense of hearth and home” by “law-abiding, responsible citizens”—courts have applied intermediate scrutiny. In doing so, they have upheld restrictions such as registration requirements and licensing fees. Critics of the ATT would have to establish that the contemplated minimum import restrictions would fail under this framework even while a variety of other regulations have survived. I have not encountered a persuasive argument about why that would be the case, particularly given the important national interests in favor of controlling transnational arms flows.
Finally, even assuming the contemplated import restrictions are constitutionally suspect, the United States could simply join the treaty subject to a reservation ensuring that the restrictions raise no constitutional problem. We did something similar with respect to the Genocide Convention and, more recently, entered a Constitution-based reservation to the Torture Convention. The reservation here would have to comport with the object and purpose of the ATT, but a Second Amendment-based reservation could meet that requirement, as several parts of the treaty draft reflect a purpose of respecting national laws.
The treaty text is far from finalized, so it’s possible that the drafting process will generate Second Amendment problems that are currently absent. But I think the real barrier to U.S. ratification won’t be the Constitution; it will be political: Practically speaking, fierce opposition from U.S. arms manufacturers is guaranteed. In 2011, U.S. arms-export agreements with developing nations amounted to $66.3 billion, or an astounding 78.7% of the total global market share. It is hard to believe that the Senate will be able to withstand the likely tidal wave of pro-export lobbying.
Monday, April 09, 2012
The Self-Defense Argument for Intervention in Syria
News media are reporting today that the combat in Syria has, for the first time, spilled across international borders, with Syrian government forces firing into Turkey last night, killing two people and injuring three others, and also firing into Lebanon. The New York Times suggests that a “large number of reinforcements for the government troops, backed by tanks and helicopters,” may have arrived “close to Turkish territory.” And of course Turkey is already sheltering a large number of refugees from the conflict—over 24,000, by the Turkish government’s estimate.
All of which raises the question of what, if anything, can be done. For the past year, the answer has been very little: Russia and China blocked effective measures in the Security Council; the legitimacy of humanitarian intervention on the basis of the responsibility-to-protect (“R2P”) principle has been contested; and neighboring states seemed to lack a persuasive argument for intervention on the basis of self-defense. But yesterday’s events suggest that the self-defense argument is strengthening. Article 51 of the UN Charter recognizes an “inherent right of individual or collective self-defense if an armed attack occurs against” a member state, “until the Security Council takes measures necessary to maintain international peace and security.” There is at least a reasonable argument that by firing bullets across the border, amassing troops nearby, and forcing Turkey to cope with a significant influx of refugees, Syria is violating Turkey’s territorial integrity and creating justification for an armed intervention on the basis of a Turkish right of self-defense.
To be clear, I’m not necessarily advocating the legality of intervention on the ground of self-defense; I’m saying simply that the argument for a self-defense-based intervention is getting stronger. And, of course, whether intervention makes sense as a practical matter is another issue altogether.
Thursday, March 22, 2012
Wired, and ThreatenedI have a short op-ed on how technology provides both power and peril for journalists over at JURIST. Here's the lede:
Journalists have never been more empowered, or more threatened. Information technology offers journalists potent tools to gather, report and disseminate information — from satellite phones to pocket video cameras to social networks. Technological advances have democratized reporting... Technology creates risks along with capabilities however... [and] The arms race of information technology is not one-sided.
Monday, March 12, 2012
Social Media and the Kony 2012 Campaign
By now, you all (likely) will have come across the Kony 2012 campaign. Sponsored by a US-based charity group, Invisible Children, this campaign aims to raise public awareness about the Lord’s Resistance Army (LRA) and its leader, Joseph Kony, through a 30 minute video that has gone viral – receiving upwards of 60 million hits (and growing fast). This documentary video has caught the attention of a star-studded cast, including Justin Bieber, George Clooney, and Lady Gaga. Kony remains at large, despite having been indicted by the International Criminal Court (ICC) in 2005 and notwithstanding the weakening of the LRA. (A rebel group, the LRA has inflicted mass atrocities in Northern Uganda, but for several years now has fled the country). Kony is charged with an array of war crimes and crimes against humanity. The Kony 2012 campaign encourages his capture and supports the intervention of Ugandan
government armed forces (assisted by American special-ops). Ever mobile, Kony is no longer in Uganda, but likely in the Central African Republic. The brutal entanglement of children in the LRA, as combatants, sex slaves, and domestic helpers, has been central to the reach of the Kony 2012 campaign and its attendant calls for support.
This campaign demonstrates the power of social media to mobilize and raise awareness. But this campaign also demonstrates the ability of social media to essentialize, sensationalize, and reductively simplify. For starters, in addition to the horrors inflicted by the LRA, the government of Uganda has also been responsible for human rights abuses in the country, including massive displacement of the local population, and also outside the country. Second, in calling for armed action, the video exhorts the very militarization that, in turn, has plagued Northern Uganda and Southern Sudan for decades already. The process of peace and justice in Northern Uganda is painstakingly complex – at the national level amnesties have played a key role – and criminal prosecutions are far from a self-evident solution, especially at the ICC. The problem of child soldiering is much more complex than the video portrays. The saving grace of international humanitarianism can only go so far – the vast majority of LRA child soldiers, after all, exited the LRA not by humanitarian rescue but, instead, by escaping or abandoning the group. Reintegration, moreover, needs to occur locally. Criminal prosecutions of a handful of recruiters are not a cure-all. To be sure, the LRA has relied on brutal abduction of children. World-wide, however, and including elsewhere in Africa, a majority of child soldiers demonstrate some initiative in coming forward and enlisting in fighting forces. Child soldiering is a global phenomenon, not just an African phenomenon – the majority of child soldiers in fact are not on the African continent. Nor are the majority of child soldiers young children – most are adolescents, often older adolescents; approximately 40% are girls; some child soldiers are implicated in grievous acts of atrocity, at times against other children.
The best way to prevent child soldiering is to understand it as a composite of practices, not as a singular practice to be generalized from the LRA. A better way to reintegrate former child soldiers, and attend to restorative needs, is to humanize former child soldiers, not present them passively as devastated mindless victims or deranged cold-blooded automatons programmed to kill. Oxford University Press recently published my book, Reimagining Child Soldiers in International Law and Policy, which I wrote to advance a nuanced conversation so as to meaningfully improve preventative and rehabilitative efforts (youtube summary here). But nuanced conversations tend to lack catchy sound-bites. Does Invisible Children, then, have it right – put a simple image forward, boldly through #StopKony, and then follow up, as it does, with some texture in responsive, albeit at times defensive, posts
that parry criticism, concern, and commentary?
Friday, February 10, 2012
Bargaining Your Way Out of War CrimesWriting book reviews may be a fading fad, but I’ve agreed to do one for Criminal Law and Philosophy on Mark Freeman’s Necessary Evils: Amnesties and the Search for Justice. Freeman argues that the push in international criminal law towards banning the amnesty, although certainly understandable, comes with some costs and, hence, isn’t self-evident. According to Freeman, some room should be left for human rights abusers to bargain away their criminal liability in exchange for peace. Ultimately, Freeman sets a very high bar on the permissibility of such bargains. His bar is so high, and his conditions so complex/onerous, that in practice under his own framework the amnesty may never be possible. In any event, Freeman’s position is an unorthodox one for an international lawyer to take. In this regard, his book is brave indeed. To be sure, political scientists routinely embrace the amnesty as a means to do business. But for lawyers, steeped in retributivist ethics, the cost of doing such business may be too much to bear. Freeman frequently turns to Dan Markel’s work in order to offer theoretical background on interplay between the deontological need to punish and the utilitarian reality that sometimes non-punishment may serve a greater good. That said, these questions are far from theoretical. In September 2011, Uganda’s Constitutional Court respected an amnesty given domestically to Col. Thomas Kwoyelo, who is among the highest level leaders of the rebel Lords’ Resistance Army (LRA), notorious for massive human rights abuses, wide-scale rape, and abduction of child soldiers. The Court ordered his release; the Court of Appeals affirmed in November; but Kwoyelo is still in custody. Kwoyelo himself had entered LRA as a teenage child soldier. In response to international pressure, a couple of years ago Uganda established an International Crimes Division in its domestic courts to prosecute LRA fighters. Kwoyelo was the first person brought to trial. These fighters, like Kwoyelo, had previously been granted an amnesty (pursuant to legislation adopted in 2000) in exchange for their renunciation of violence. The debate over Kyowelo’s amnesty therefore involves tension within branches of the same state: Uganda’s constitutional imperatives to equal treatment of its citizens, on the one hand, and Uganda’s prosecutorial obligations to punish perpetrators of serious international crimes, on the other. One angle to the amnesty debate that I have not seen much of in the literature, and which I hope to explore at greater length in the review, is how reneging on an amnesty previously granted may in and of itself amount to a rule of law denial, thereby imperiling constitutional legitimacy. In this regard, respecting a painful and unattractive bargain may signal a deontological commitment to promise and predictability. Any thoughts on how upholding ugly bargains may prettify a new constitutional order? How scuttling them, however attractive in the short term, may come to blight constitutional credibility?
Posted by Mark Drumbl on February 10, 2012 at 11:33 AM in Constitutional thoughts, Criminal Law, International Law, Judicial Process, Law and Politics, Privilege or Punish | Permalink | Comments (0) | TrackBack
Tuesday, February 07, 2012
Restating, stating, shuffling, or changing?
I’m really glad to have a chance to rejoin the Prawfs community for this month. Sorry for the somewhat belated start, but the past couple of days have been a flurry. I was just out in sunny California for a fascinating international humanitarian law conference at Santa Clara Law School. As Ken Anderson, one of the participants, notes in his opinio juris blog post on the conference, topics covered included the applicability of classic criminal responsibility theories to robots that are used in warfare; the intersections between gender, justice, and conflict; and the right to counsel in military proceedings. I had a chance to present on my new book on child soldiers, several aspects of which I hope to blog about here this month as well.
Yesterday the Transnational Law Institute at my law school hosted George A. Bermann from Columbia Law School, who delivered a fantastic public lecture entitled "American Exceptionalism in International Commercial Arbitration". We are fortunate at Washington and Lee to have Susan Franck as a colleague, in that her work situates at the cutting-edge of scholarship in this field -- and our Moot Court Room was packed and engaged. Although the notion of "American Exceptionalism" often applies in human rights law areas (such as constitutional interpretation, war crimes trials, and terrorism), Prof. Bermann explored how aspects of the US legal system interface with the quest, through international convention, for uniform enforcement of international arbitration awards in commercial law matters. In particular, Bermann identified a number of factors, which may not always be anticipated in contract negotiation, including federalism (for example, how the public policy of one of the US states may interface with the recognized ability for an award to be denied enforcement if it infringes public policy), inadequacies in the domestic Federal Arbitration Act, and procedural features of the US legal system. In this regard, clearly, I would answer Trey Childress' earlier question on this blog with a clear yes – international law matters and domestic legal structures ought to be mindful of it.
Bermann serves as Chief Reporter of the American Law Institute Restatement (Third) of the U.S. Law of International Commercial Arbitration. At the end of his talk, a student in the audience raised what I thought to be an important reminder – namely, what are the obligations and duties of Restatement authors? Is it to photograph the law, prod it along, or reengineer it? Do different obligations arise in different areas of law? For example, in areas of law thick with case-law and statute, is photography preferable? In areas of law lolling in ambiguity, grappling with change, or redolent with awkwardness, is something more required? What is the proper place for normativity? For international law junkies out there: are the obligations of the Restatement drafters similar to or different from those of the members of the International Law Commission (ILC), who are called upon to promote the progressive development of international law and its codification – recognized by convenience in art. 15 of the ILC's statute as two separate tasks?
Tuesday, December 13, 2011
A Few Thoughts on Kiobel
I'd like to share some brief thoughts on Kiobel v. Royal Dutch Petroleum Co., the case in which the Supreme Court will likely decide whether the Alien Tort Statute confers federal jurisdiction over claims alleging corporate violations of customary international law.
Although not directly at issue in the litigation, Kiobel seems to raise an interesting question about the method by which courts go about ascertaining custom. A core principle of international law is that binding customary norms develop from "general and consistent practice that states follow from a sense of legal obligation." According to Sosa v. Alvarez-Machain, the ATS provides for federal jurisdiction over civil actions by aliens who have alleged violations of a particular subset of these norms--i.e., those that are "accepted by the civilized world" and defined with a fairly high degree of specificity. Thus, determining whether the ATS provides jurisdiction in any given case often requires a judicial analysis of the nature, extent, and rationale of the practice that has allegedly given rise to the norm that the defendant has allegedly violated. In some cases--such as those involving prohibitions against piracy, offenses against ambassadors, and torture--the jurisdictional analysis is relatively easy because the underlying norm is widely accepted and well-defined. In others, it may be difficult to ascertain whether a norm has the requisite levels of state acceptance and definitional precision.
The circuit split underlying the decision to grant cert in Kiobel suggests that the norm of corporate liability falls into the latter category. After canvassing selected treaties, precedent from international tribunals, and scholarship, the Second Circuit concluded that corporations have never been prosecuted for violating customary international law, and that a custom of liability therefore does not exist. But upon completing the very same inquiry, the Seventh Circuit reached precisely the opposite conclusion in Flomo v. Firestone National Rubber Co. Notably, Flomo found that the Second Circuit had simply overlooked an important example of corporate liability--that of the German company I.G. Farben after WWII.
Assuming the Seventh Circuit was correct, the Second Circuit's failure to recognize the I.G. Farben precedent seems significant. But from the standpoint of judicial process, the failure was also understandable, for federal courts lack the resources to systematically identify all relevant international practice for the purpose of resolving 12(b) motions. A thorough inquiry would seem to require reviewing even the mundane, day-to-day behaviors of the entire "civilized world"--to use Sosa's words--over a course of years, perhaps decades. And yet, there is no database of such practice, no analogue to the essentially complete and well-organized federal and state case reports on Westlaw and Lexis. Thus, standard legal research techniques won't necessarily generate reliable answers. Courts can take shortcuts by focusing their research on salient indicia of state practice in the form of treaties and important decisions from international tribunals, but those examples usually seem to tell only part of the story.
One conclusion to draw from this observation is that the disagreement between the Second and Seventh Circuits does not necessarily itself show that the norm of corporate liability lacks the acceptance and precision that Sosa demands. Instead, the split may simply reflect the difficulties inherent in federal judicial identification of international custom. Perhaps the Seventh Circuit was right, and the Second Circuit simply overlooked relevant precedent. Perhaps both circuits did. Absent a rigorous historical inquiry, it's hard to say with certainty. Either way, to conclude that it is difficult to accurately identify whether any given customary norm enjoys the acceptance and clarity necessary to create ATS jurisdiction is not to say that the norm lacks such characteristics.
Another possible conclusion to draw is that federal courts should look for ways to supplement their capacity to ascertain international custom. One potential solution lies in Rule 53 of the Federal Rules of Civil Procedure, which permits courts to appoint special masters "to address pretrial . . . matters that cannot be effectively and timely addressed by an available district judge or magistrate judge of the district." If the problems of research method that I have described prevent courts from "effectively and timely" identifying customary international law, then the Rule would seem to permit them to use special masters to supplement their efforts. Chosen special masters would ideally be international legal experts or historians with expertise in the relevant area of custom, and would thus have a more comprehensive and nuanced understanding of state practice than the court could possibly obtain through standard legal research techniques. Briefly looking at the Federal Reporter, I did not come across any examples of courts using special masters in this way, but perhaps it's a step worth considering.
Monday, December 05, 2011
Circumvention Tourism: Traveling for Abortion, Assisted Suicide, Reproductive Technology, Female Genital Cutting, Stem Cell Treatments, and More...
This past week I was in lovely Hermance, Switzerland, as a guest of the Brocher Foundation and the International Society for Stem Cell Research's Ethics and Policy Commitee to talk to them about stem cell tourism -- travel abroad to receive treatment or be part of a clinical trial using stem cells not authorized in the patient's home country. This is often a sub-type of what I call "circumvention medical tourism" -- medical tourism for services that are illegal in the patient's home country but legal in the destination country to which they travel.
I have just posted on SSRN a draft of my new article, Circumvention Tourism, 97 Cornell L. Rev. _ (forthcoming, 2012), which uses the real world examples of medical tourism for abortion, assisted suicide, reproductive technology (especially surrogacy), and female genital cutting to build a bigger legal and ethical theory of circumvention tourism.
I briefly discuss the 'can' question: Assuming a domestic prohibition on access to one of these services is lawful, as a matter of international law is the home country permitted, forbidden, or mandated to extend its existing criminal prohibition extraterritorially to home country citizens who travel abroad to circumvent the home country prohibition?
Most of the Article, though, is devoted to the 'ought' question: Assuming the domestic prohibition is viewed by the home country as normatively well-grounded and lawful, under what circumstances should the home country extend its existing criminal prohibition extraterritorially to its citizens who travel abroad to circumvent the prohibition? I show that contrary to much of the current practice, in most instances home countries should seek to extend extraterritorially to circumvention tourists their criminal prohibitions on abortion, FGC, assisted suicide, and to a lesser extent reproductive technology usage.
I then use this analysis as scaffolding to build towards a larger theory of circumvention tourism that includes examples outside of the medical context (such as prostitution, drug use, honor killings, and others)
I don't normally post drafts on SSRN until they are in page proofs (this draft is before the editors have had a chance to improve it) but am doing so early in this case because the topic is developing and I want my views to be part of the conversation. Still, it is a work-in-progress, so if you have any feedback you want to give me I always value it; though I think it makes more sense just to email me comments on the paper directly rather than post it on here so as not to clog the blog...but happy for more editorial/conversational comments to be added on here.
PS: I've already benefitted greatly from workshops of this paper at HLS, UT Austin, and by the NYU/Brooklyn Crim Law Theory Group that Dan Markel coordinates. I love workshopping papers, so if you are interested in having me present this or another paper feel free to get into contact.
Tuesday, November 15, 2011
Online Symposium: Shapiro and Hathaway on Outcasting
Opinio Juris is coducting an online symposium addressing Oona Hathaway and Scott Shapiro's recent article in the Yale Law Journal titled Outcasting. Both the article and the symposium are great contributions to recent discussions on non-state governance (one of my other favorites is the Utah Law Review's 2010 symposium on non-state governance). I've contributed my own thoughts in a post to the online symposium here.
Friday, November 11, 2011
Greetings from D.C.
I'm spending a wonderful day in D.C. presenting a paper at the annual symposium for the American Society of International Law's International Legal Therory Interest Group addressing Hart's Legacy on International Law. The papers have brought together some amazing work on legal theory, international relations, international law and non-state governance presented by Trey Childress, Mark Herlihy, John Linarelli (see here for one of his related papers), Tim Meyer (related to his forthcoming article in the Penn. L. Rev. Codifying Custom), John Mikhail, Liam Murphy, and Dan Priel (another related paper here). These papers will appear down the road in Cambridge U. Press's ASIL Studies in International Legal Theory.
I must say that given my experiences today, I'm even more bullish about writing in multiple scholarly areas. Many thanks to Mark Herlihy for organizing this fantastic event!
Thursday, November 10, 2011
Cyber-Terror: Still Nothing to See Here
Cybersecurity is a hot policy / legal topic at the moment: the SEC recently issued guidance on cybersecurity reporting, defense contractors suffered a spear-phishing attack, the Office of the National Counterintelligence Executive issued a report on cyber-espionage, and Brazilian ISPs fell victim to DNS poisoning. (The last highlights a problem with E-PARASITE and PROTECT IP: if they inadvertently encourage Americans to use foreign DNS providers, they may worsen cybersecurity problems.) Cybersecurity is a moniker that covers a host of problems, from identity theft to denial of service attacks to theft of trade secrets. The challenges are real, and there are many of them. That's why it is disheartening to see otherwise knowledgeable experts focusing on chimerical targets.
For example, Eugene Kaspersky stated at the London Cyber Conference that "we are close, very close, to cyber terrorism. Perhaps already the criminals have sold their skills to the terrorists - and then...oh, God." FBI executive assistant director Shawn Henry said that attacks could "paralyze cities" and that "ultimately, people could die." Do these claims hold up? What, exactly, is it that cyber-terrorists are going to do? Engage in identity theft? Steal U.S. intellectual property? Those are somewhat worrisome, but where is the "terror" part? Terrorists support malevolent activities with all sorts of crimes. But that's "support," not "terror." Hysterics like Richard Clarke spout nonsense about shutting down air traffic control systems or blowing up power plants, but there is precisely zero evidence that even nation-states can do this sort of thing, let alone small, non-state actors. The "oh, God" part of Kaspersky's comment is a standard rhetorical trope in the apocalyptic discussions of cybersecurity. (I knock these down in Conundrum, coming out shortly in Minnesota Law Review.) And paralyzing a city isn't too hard: snowstorms do it routinely. The question is how likely such threats are to materialize, and whether the proposed answers (Henry thinks we should build a new, more secure Internet) make any sense.
There are at least two plausible reasons why otherwise rational people spout lurid doomsday scenarios instead of focusing on the mundane, technical, and challenging problems of networked information stores. First, and most cynically, they can make money from doing so. Kaspersky runs an Internet security company; Clarke is a cybersecurity consultant; former NSA director Mike McConnell works for a law firm that sells cybersecurity services to the government. I think there's something to this, but I'm not ready to accuse these people of being venal. I think a more likely explanation flows from Paul Ohm's Myth of the Superuser: many of these experts have seen what truly talented hackers can do, given sufficient time, resources, and information. They then extrapolate to a world where such skills are commonplace, and unrestrained by ethics, social pressures, or sheer rational actor deterrence. Combine that with the chance to peddle one's own wares, or books, to address the problems, and you get the sum of all fears. Cognitive bias matters.
The sky, though, is not falling. Melodrama won't help - in fact, it distracts us from the things we need to do: to create redundancy, to test recovery scenarios, to deploy more secure software, and to encourage a culture of testing (the classic "hacking"). We are not going to deploy a new Internet. We are not going to force everyone to get an Internet driver's license. Most cybersecurity improvements are going to be gradual and unremarkable, rather than involving Bruce Willis and an F-35. Or, to quote Frank Drebin, "Nothing to see here, please disperse!" Cross-posted at Info/Law.
Monday, November 07, 2011
Global Justice and Medical Tourism
Over the last few years, when I have not been working on bioethical issues relating to reproduction and reproductive technologies, I have been working on a different project relating to medical tourism – the travel of patients from one country (the “home country”) to a foreign country (the “destination country”) for the primary purpose of getting health care. I have done three major law review articles on the subject (and a few other bioethics and medical journal articles). The first law review article focued on quality of care and medical malpractice recovery. The third, which is forthcoming in the Cornell L. Rev, focuses on circumvention tourism -- patients who travel abroad for the purpose of circumventing a home country restriction on access, such as in the case of abortion, assisted suicide, female genital cutting, and reproductive technology use in some contexts. The second law review article is coming out this week in print, but I have already posted it online here. This piece of the project, I hope, will be useful beyond medical tourism to those interested in globalization and global justice theory more generally.
A good way to frame my subject of inquiry is by way of a recent New York Times article by Somini Sengupta, entitled “Royal Care for Some of India’s Patients, Neglect for Others,” which captures a particular global justice critique well: She begins by describing the care given at Wockhardt Hospital in India to “Mr. Steeles, 60, a car dealer from Daphne, Ala., [who] had flown halfway around the world last month to save his heart [through a mitral valve repair] at a price he could pay.” The article describes in great detail the dietician who selects Mr. Steele’s meals, the dermatologist who comes as soon as he mentions an itch, and Mr. Steeles’s “Royal Suite” with “cable TV, a computer, [and] a mini-refrigerator, where an attendant that afternoon stashed some ice cream, for when he felt hungry later.” This treatment contrasts with the care given to a group of “day laborers who laid bricks and mixed cement for Bangalore’s construction boom,” many of whom “fell ill after drinking illegally brewed whisky; 150 died that day.” “Not for them [was] the care of India’s best private hospitals,” writes the article’s author; “[t]hey had been wheeled in by wives and brothers to the overstretched government-run Bowring Hospital, on the other side of town,” a hospital with “no intensive care unit, no ventilators, no dialysis machine,” where “[d]inner was a stack of white bread, on which a healthy cockroach crawled.”
There is also a more academic or policy strain of critiques among those who write about global health and/or globalization.
The goal of this paper is to examine this kind of critique. Here is my take...
As I argue in the paper these kinds of critiques should be understood as raising there kinds of questions: (1) An empirical question: Does medical tourism have negative effects on health care access for the poor in the destination country? (2) The normative question: If so, do home countries or international bodies face obligations to prevent or correct those negative effects, and under what circumstances? (3) The regulatory question: If so, how might they do so?
I discuss some of the development economics and health system design pertaining to the first question and regulatory options as to the third question, but most of the paper is focused on the second normative question. This gives me an opportunity to engage ongoing debates in normative and applied ethics between theories of global justice, cosmopolitan, statist, and intermediate. I discuss the ways in which these theories suggest we may owe different things to those inside versus outside the nation state, or the ways in which the obligations may be activated under different circumstances depending whether those who suffer are our fellow nationals or foreign. While my focus is on medical tourism, I also show how some of the ideas I develop are applicable to other instances of the globalization of health care such as medical migration (the brain drain). The goal (you, dear reader, can judge if it is successful) is to have a dialogue between these theories and the concrete medical tourism cases, to see ways in which the theories speak to the cases but also the ways in which the cases identify gaps, ambiguities, and possible divergeny ways of filling the blanks.
I am currently editing a book for Oxford on legal and ethical issues in health care globalization and starting a new book project on medical tourism specifically. While I have found the global justice literature useful as to these project, I actually think it has many more applications to the work done by law prawfs – for example in immigration law and labor and employment law, among other areas. Since this law review article represents a part of an ongoing project, I am definitely eager for your thoughts.
Wednesday, October 26, 2011
How Baseball Made Me a PirateMajor League Baseball has made me a pirate, with no regrets. Nick Ross, on Australia's ABC, makes "The Case for Piracy." His article argues that piracy often results, essentially, from market failure: customers are willing to pay content owners for access to material, and the content owners refuse - because they can't be bothered to serve that market or geography, because they are trying to force consumers onto another platform, or because they are trying to leverage interest in, say, Premier League matches as a means of getting cable customers to buy the Golf Network. The music industry made exactly these mistakes before the combination of Napster and iTunes forced them into better behavior: MusicNow and Pressplay were expensive disasters, loaded with DRM restrictions and focused on preventing any possible re-use of content rather than delivering actual value. TV content owners are now making the same mistake. Take, for example, MLB. I tried to purchase a plan to watch the baseball playoffs on mlb.com - I don't own a TV, and it's a bit awkward to hang out at the local pub for 3 hours. MLB didn't make it obvious how to do this. Eventually, I clicked a plan that indicated it would allow me to watch the entire postseason for $19.99, and gladly put in my credit card number. My mistake. It turns out that option is apparently for non-U.S. customers. I learned this the hard way when I tried to watch an ALDS game, only to get... nothing. No content, except an ad that tried to get me to buy an additional plan. That's right, for my $19.99, I receive literally nothing of value. When I e-mailed MLB Customer Service to try to get a refund, here's the answer I received: "Dear Valued Subscriber: Your request for a refund in connection with your 2011 MLB.TV Postseason Package subscription has been denied in accordance with the terms of your purchase." Apparently the terms allow fraud. Naturally, I'm going to dispute the charge with my credit card company. But here's the thing: I love baseball. I would gladly pay MLB to watch the postseason on-line. And yet there's no way to do so, legally. In fact, apparently the only people who can are folks outside the U.S. And if you try to give them your money anyway, they'll take it, and then tell you how valued you are. But you're not. So, I'm finding ways to watch MLB anyway. If you have suggestions or tips, offer 'em in the comments - there must be a Rojadirecta for baseball. And next season, when I want to watch the Red Sox, that's the medium I'll use - not MLB's Extra Innings. MLB has turned me into a pirate, with no regrets.Cross-posted at Info/Law.
Posted by Derek Bambauer on October 26, 2011 at 07:48 PM in Criminal Law, Culture, Information and Technology, Intellectual Property, International Law, Music, Odd World, Sports, Television, Web/Tech | Permalink | Comments (34) | TrackBack
Monday, October 17, 2011
The Myth of Cyberterror
UPI's article on cyberterrorism helpfully states the obvious: there's no such thing. This is in sharp contrast to the rhetoric in cybersecurity discussions, which highlights purported threats from terrorists to the power grid, the transportation system, and even the ability to play Space Invaders using the lights of skyscrapers. It's all quite entertaining, except for 2 problems: 1) perception frequently drives policy, and 2) all of these risks are chimerical. Yes, non-state actors are capable of defacing Web sites and even launching denial of service attacks, but that's a far cry from train bombings or shootings in hotels.
The response from some quarters is that, while terrorists do not currently have the capability to execute devastating cyberattacks, they will at some point, and so we should act now. I find this unsatisfying. Law rarely imposes large current costs, such as changing how the Internet's core protocols run, to address remote risks of uncertain (but low) incidence and uncertain magnitude. In 2009, nearly 31,000 people died in highway car crashes, but we don't require people to drive tanks. (And, few people choose to do so, except for Hummer employees.)
Why, then, the continued focus on cyberterror? I think there are four reasons. First, terror is the policy issue of the moment: connecting to it both focuses people's attention and draws funding. Second, we're in an age of rapid and constant technological change, which always produces some level of associated fear. Few of us understand how BGP works, or why its lack of built-in authentication creates risk, and we are afraid of the unknown. Third, terror attacks are like shark attacks. We are afraid of dying in highly gory or horrific fashion, rather than basing our worries on actual incidence of harm (compare our fear of terrorists versus our fear of bad drivers, and then look at the underlying number of fatalities in each category). Lastly, cybersecurity is a battleground not merely for machines but for money. Federal agencies, defense contractors, and software companies all hold a stake in concentrating attention on cyber-risks and offering their wares as a means of remediating them.
So what should we do at this point? For cyberterror, the answer is "nothing," or at least nothing that we wouldn't do anyway. Preventing cyberattacks by terrorists, nation states, and spies all involve the same things, as I argue in Conundrum. But: this approach gets called "naive" with some regularity, so I'd be interested in your take...
Posted by Derek Bambauer on October 17, 2011 at 04:43 PM in Criminal Law, Current Affairs, Information and Technology, International Law, Law and Politics, Science, Web/Tech | Permalink | Comments (7) | TrackBack
Monday, October 10, 2011
Spying, Skynet, and Cybersecurity
The drones used by the U.S. Air Force have been infected by malware - reportedly, a program that logs the commands transmitted from the pilots' computers at a base in Nevada to the drones flying over Iraq and Afghanistan. This has led to comparisons to Skynet, particularly since the Terminators' network was supposed to become self-aware in April. While I think we don't yet need to stock up on robot-sniffing dogs, the malware situation is worrisome, for three reasons.
First, the military is aware of the virus's presence, but is reportedly unable to prevent it from re-installing itself even after they clean off the computers' drives. Wired reports that re-building the computers is time-consuming. That's undoubtedly true, but cyber-threats are an increasing part of warfare, and they'll soon be ubiquitous. I've argued that resilience is a critical component of cybersecurity. The Department of Defense needs to assume that their systems will be compromised - because they will - and to plan for recovery. Prevention is impossible; remediation is vital.
Second, the malware took hold despite the air gap between the drones' network and the public Internet. The idea of separate, isolated networks is a very attractive one in security, but it's false comfort. In a world where flash drives are ubiquitous, where iPods can store files, and where one can download sensitive data onto a Lady Gaga CD, information will inevitably cross the gap. Separation may be sensible as one security measure, but it is not a panacea.
Lastly, the Air Force is the branch of the armed forces currently in the lead in terms of cyberspace and cybersecurity initiatives. If they can't solve this problem, do we want them taking the lead on this new dimension of the battlefield?
It's not clear how seriously the drones' network has been compromised - security breaches have occurred before. But cybersecurity is difficult. We saw the first true cyberweapon in Stuxnet, which damaged Iran's nuclear centrifuges and set back its uranium enrichment program. That program too looked benign, on first inspection. Let's hope the program here is closer to Kyle Reese than a T-1000.
Wednesday, June 22, 2011
Certain Expenses Concerning U.S. Military Operations Against Libya
In its canonical Certain Expenses advisory opinion of 1962, the International Court of Justice made clear that military activity carried out by member states in the context of peace keeping operations in the Congo and along the Suez authorized by the General Assembly amounted to United Nations activities, which were therefore to be treated as expenses of the United Nations, funded from member contributions. France and the Soviet Union objected to U.N. involvement in peacekeeping in the Middle East and Congo, but they could not legally withhold their required contributions to the United Nations on account of those objections. United Nations skeptics might retort that even though the I.C.J. is the judicial arm of the United Nations, the U.N. has no concrete power to enforce an advisory opinion, and even I.C.J. judgments cannot be enforced against a recalcitrant state absent a Security Council Resolution authorizing sanctions against that non-complying state. And yet both France and the Soviet Union eventually paid the money they had withheld from the U.N. in protest against U.N. action in the Suez and Congo, much as the United States finally paid its assessed contributions after much protest against U.N. policies in the late 1970s, the 1980s, 1990s and 2000s.
Since member states are obligated to fund United Nations activities including peacekeeping by member states authorized by the General Assembly even though the text of the U.N. Charter does not plainly convey the power to authorize peacekeeping on the General Assembly, it seems to me that United Nations enforcement actions authorized by the Security Council pursuant to its unambiguous authority under Chapter VII of the Charter are, a fortiori, expenses of the United Nations to be funded by member states. This would make the military activity of certain U.N. member states, including the United States, against the government of the Libyan Arab Jamahiriya authorized in Security Council Resolution 1973 of March 17, 2011 United Nations activity to be funded as United Nations expenses from member contributions. Unless I am missing something, the United States should be able to seek reimbursement from the U.N. for its military activity against the Libyan government. The U.S. share of the United Nations budget is now approximately 22%, so approximately 78% of the costs of U.S. operations in Libya should be funded from the contributions of other member states. Of course, ultimately the U.S. should have to contribute U.N. funds totaling 22% of the costs borne by other U.N. member states in the U.N. authorized operations against the Libyan government. Perhaps the U.S. “refund” and the U.S. contributions to other member states’ operating costs will even out. But I am mystified as to why public discussion of the costs of the operations against Libya does not (as far as I know) make any reference to the Certain Expenses case and the character of the operations against the Libyan government as United Nations activities. Am I missing something obvious? If not, it strikes me as worth public notice that one material difference between U.S. participation in illegal wars of aggression violating Article 2(4) of the U.N. Charter and U.S. participation in United Nations authorized enforcement actions pursuant to Chapter VII of the Charter is that the U.S. will be required to bear the full costs on its own respecting the former, while in the case of the latter, U.S. military action comes at a 78% discount.
Monday, June 06, 2011
Kansas and the Mexican Question
In my last Prawfsblawg entry titled Feral Pigs, Communist Pigs, and Incitement to Genocide, I stressed the point that vocabulary matters enormously in the context of explaining and attempting to justify violence against human beings. In a marginally well adjusted society, one might hope, it should be more or less axiomatic to most people that killing fellow humans cannot be justified by likening persons or groups to animals, and that killing explained by no more convincing rationale than the victim classes’ alleged pig-like or cockroach-like attributes is morally repugnant. Yet international and inter-ethnic conflict and oppression today appear as closely intertwined with the false science of dehumanization as were their antecedents in the medieval and ancient worlds. The rhetoric of extermination deployed in Rwanda or Nazi Germany seems as little touched by the sensibilities of the Age of Enlightenment as were the primitive impulses of hate and fear that shaped the deontological opposition of Muslims and Christians in the Middle Ages. Barbaric sensibilities might be cabined or controlled in modern culture, but they awaken all too quickly in all too many people when summoned to support inhuman projects by evil or unthinking speakers.
Kansas state representative Virgil Peck, who Wikipedia lists as Chairman of the Republican Majority Caucus, recently suggested machine gunning illegal immigrants from helicopters as a useful public policy option, given the reported successes in thinning the state’s feral pig population by similar means. A decade before champions and opponents of slavery’s expansion into Kansas fought the infamous prelude to the American Civil War known as Bleeding Kansas, the slaveholding United States fought free Mexico in a two year war leading to the annexation of one third of Mexico’s territory into the United States. Some cultural imperialists justified the War principally by invocations of Manifest Destiny and articulated arguments that allegedly stronger races were destined to conquer allegedly weaker ones. But for President James K. Polk and then Congressman Abraham Lincoln, at least as a matter of public discussion, the war’s justice or injustice hinged not on the politics of race, but on decidedly U.N. Charter-era considerations that today would be cast in terms of illegal aggression and lawful self-defense. In his speech in the United States House of Representatives on January 12, 1848, Lincoln characterized his dispute with Polk as follows: "The President [Polk], in his first war message of May, 1846, declares that the soil was ours on which hostilities were commenced by Mexico, and he repeats that declaration almost in the same language in each successive annual message, thus showing that he deems that point a highly essential one. In the importance of that point I entirely agree with the President. To my judgment it is the very point upon which he should be justified, or condemned.”
Lincoln and other war skeptics took it for granted that only self-defense could justify collective violence.Alleged animal attributes or racial inferiority did not figure in his calculus. Looking back on the Mexican War in his post-presidential Memoirs in 1885, Ulysses Grant offered a similar assessment. By the standard that aggression was illegal and that only self-defense could justify violence, Grant measured the U.S. decision to wage war against Mexico in the balance, and found it wanting: “[T]o this day [I] regard the war . . . as one of the most unjust ever waged by a stronger against a weaker nation. It was an instance of a republic following the bad example of European monarchies, in not considering justice in their desire to acquire additional territory. . . . The occupation, separation and annexation were, from the inception of the movement to its final consummation, a conspiracy to acquire territory out of which slave states might be formed for the American Union."
The first generations of G.O.P. leaders had a far sounder understanding of basic principles underlying the illegality of collective and individual killing than the leader of the Kansas Republican Caucus does today. Lincoln and Grant’s Whig forbear Daniel Webster spelled out these fundamental principles memorably in the context of the Caroline Dispute from 1838-42, and Webster’s insistence that defensive force was justified only when necessary and proportionate to repulse an existing or imminent attack accurately represents both municipal and international law to this day. Virgil Peck would have done well to internalize the basic maxims understood so clearly by Grant, Lincoln, and Webster and to disown forever the politics of racist incitement. The fact that Peck has so far not resigned his position and his seat is troubling, for it signals to the world that a man willing to endorse profound evil can ascend to high office in the United States. From this writer’s perspective, the fact that the people of Kansas and of the United States have not been adamant in demanding his resignation is more troubling still.