Law

I blogged the other day about the new restrictions the UK is planning to impose on would-be migrants, making it impossible for all but the super-rich to acquire permanent residency and forcing others into Gastarbeiter status (to be kicked out after five years). It gets worse. The government’s Migration Advisory Committee has now recommended that anyone seeking to sponsor a foreign (non-EU) spouse to enter the UK has to be in the top half of the income distribution (I simplify slightly). Read Matt Cavanagh on the topic here and the Free Movement blog here. So think through the implications. A British student goes to grad school in the US (for example), meets an American and marries: such a person would, under these proposals, be unable to return to the UK with their partner to live as a couple. If two countries were to adopt such rules and their nationals met and married, they would have the right to live as a couple in neither country. Iniquitous and unjust.

The only reason Catholics like Joe Paterno and Darío Castrillón Hoyos are able to commit such uniquely awful crimes is because they are ethical in a way that run-of-the-mill godless folk cannot understand. Plus, I hereby stipulate that raping children is, admittedly, bad, mumble.

Even shorter: I don’t doubt that people whom I have just admitted committed evil acts are, in fact good, because [makes mysterious, several-part gesture with hand and wrists which magically resolves obvious contradictions.]

The Liam Fox/Adam Werritty scandal largely happened when I was away in the US, so I’m only now catching up on the details. These are, in brief, that Werritty, a close friend of Fox (the British Secretary-of-State for Defence, now resigned), paid by various shadowy backers and lobby-groups, accompanied him to a very large number of meetings, including ones involving foreign governments. Some of the details of the financial backing for Werrity and the background in the pro-American think-tank Atlantic Bridge are covered by the Guardian “here”:http://www.guardian.co.uk/politics/2011/oct/15/liam-fox-atlantic-bridge?newsfeed=true . Now there’s talk of “prosecuting Werrity for fraud”:http://www.telegraph.co.uk/news/politics/conservative/8829803/Liam-Fox-affair-Adam-Werritty-facing-fraud-investigation-by-police.html for allegedly misrepresenting his status with Fox to lobbyists in order to get their cash. What I don’t understand is why nobody is pursuing the question of whether there’s been a breach of the Bribery Act. It looks to me _prima facie_ like there’s a case to answer.

Looking at the “statute”:http://www.legislation.gov.uk/ukpga/2010/23/section/1 :

It is clear that Werritty’s backers promised or gave “a financial or other advantage to another person [Werritty]” , intending “to induce a person [Fox] to perform improperly a relevant function or activity”. In which connection note (1.4) that “… it does not matter whether the person to whom the advantage is offered, promised or given is the same person as the person who is to perform, or has performed, the function or activity concerned.” So an offence can be committed where Werrity is paid to influence Fox. The case also seems to meet the “function or activity”:http://www.legislation.gov.uk/ukpga/2010/23/section/3 provisions, since Fox is “performing a function of a public nature” and “is expected to perform it in good faith”, is “is expected to perform it impartially” and “is in a position of trust by virtue of performing it” (though meeting any of those last three clauses would do).

So why aren’t Labour MPs demanding an investigation into whether there has been a breach of the Act?

Kevin Drum recently posted in a sort of muddle-headed, if well meaning, way. His post is entitled, “Why Do Hotels Tolerate Sexual Predators?” His readers were there to point out that if you kicked all the rich flashers out of your hotel you’d lose a lot of money. I might additionally suggest that the victims (in these cases, the housekeepers), are mostly immigrants working in a low-status job, and their right to be free from unwanted exhibitionism looms small in the mental world of a hotel manager.

When I say the post is muddle-headed, I only mean that it is surprising that Drum is surprised. Many (most, actually) of the women I know have been flashed, usually as younger girls. It’s not as though it’s some astonishing thing that never happens; it’s just going on all the time, but not happening to Kevin Drum. But in swoops Megan McArdle and I thought, how is she going to defend rich assholes who flash hotel housekeepers? I mean, really. Especially considering that Megan grew up in New York City in the 70s and 80s, which means I am morally certain some dude has flashed her, or masturbated next to her on the subway, or done something equally unwelcome. How not? (I have experienced all these things, and more! Ask me about the time the cops told me the man hassling me was a convicted sex offender who had forcibly raped at least 6 women, and I was “an idiot” because I returned idle pleasantries, in a deflecting way, on the BART. It was apparently my duty to remain silent at all times.) But then, she doesn’t mention it, so perhaps she was weirdly lucky in this regard. Really weirdly lucky.
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J.K. Galbraith remarked that conservatism was engaged in a long search for a superior moral justification for selfishness. But that quest may sometimes become boring, or perhaps too difficult. Not to worry, because occasions to be straightforwardly vicious are more easily found, if you have the taste for it. Its spiteful tone aside, in substance Connick v. Thompson seems to be a Lord Denning Moment for the U.S. Supreme Court. The conservative majority preferred to affirm an obvious wrong rather than face the appalling vista of a brutal and corrupt justice system. To be fair to the system, it’s worse than that. Once the initial wrongdoing came to trial a jury, the district court, and the 5th circuit (twice) all decided the other way. It’s only when we get to Thomas, Scalia, Roberts, Alito, and Kennedy that the system chose to further institutionalize prosecutorial immunity. Stitch-ups should be seamless: if someone could pull at a stray thread, the whole thing might unravel, after all.

Like Chris, I don’t have a vote at the United Nations and I have also found the bloodthirsty enthusiasm with which certain sections of the blogosphere have turned the conflict in Libya into a spectator sport rather nauseating. However, I do have a couple of thoughts about the resolution authorizing intervention.

Paragraph 4 of resolution 1973 is headed protection of Civilians and states that

bq. ‘Member States that have notified the Secretary-General, acting nationally or through regional organizations or arrangements, and acting in cooperation with the Secretary-General‘ are authorized ‘to take all necessary measures , . . . . . to protect civilians and civilian populated areas under threat of attack in the Libyan Arab Jamahiriya, including Benghazi, while excluding a foreign occupation force of any form on any part of Libyan territory.‘

This is the legal basis of the military action that allied forces are taking. The wording is significantly different to the standard clause that has been appearing in UN Resolutions since the 1999 mission to Sierra Leone, which, under the heading of Protection of United Nations’ Staff, Facilities and Civilians, tends to read along the following lines.

bq. ‘to protect United Nations personnel, facilities, installations and equipment, ensure the security and freedom of movement of its personnel and, without prejudice to the efforts of the government, to protect civilians under imminent threat of physical violence, within their capabilities.‘

The ‘protection of civilians’ has become an increasingly central concern of UN peace-keeping missions over the last decade and this has resulted in the above wording appearing in most Security Council Resolutions authorizing peacekeeping or stabilization mandates. The caution of the language is obvious – UN personnel are mentioned first and civilians second, and the protection is to be achieved ‘within the capabilities of the UN military contingent and ‘without prejudice’ to the host government. However, the resolutions are adopted under Chapter VII of the UN Charter, which authorizes the use of force.

This explicit authorization to use force to protect the lives of civilians arose directly out of the experiences of the humanitarian interventions of the 1990s. The establishment of the Kurdish safe haven at the end of the first Gulf War in April 1991 is widely considered as the first of these interventions, but the resolution supporting it (688) was not adopted under Chapter VII of the UN Charter. Subsequent missions, such as those in Somalia, Rwanda and Bosnia-Herzegovina, were defined as ‘threats to peace and security,’ rather than threats to civilian lives, a quite different conceptual concept when it comes to mission planning.

NATO’s actions over Kosovo in 1999 also lacked UN approval and was defended legally under the controversial doctrine of ‘humanitarian exception’ to the international prohibition on the use of force.

The aftermath of the Kosovo conflict saw a flurry of reports and commissions on the question of the legality of humanitarian interventions and the drawing up of a set of principles on the Responsibility to Protect (R2P) which received semi-endorsement at the UN millennium summit. The invasion of Iraq effectively killed off R2P, but work around the protection of civilians has continued under UN auspices and protection strategies are being increasingly integrated into the planning of most UN missions. This debate has probably had far more influence on the Security Council’s recent decision than any ‘western plot to invade another country in the Middle East.

The intervention over Libya undoubtedly opens a new chapter on this debate and, at the time of writing, none of us have any idea what its eventual outcome will be. However, Resolution 1973 is in its own terms a significant milestone in the evolution of the UN and the debate about the legality of the use of force for humanitarian ends.

Will Wilkinson has a post at The Economist, taking issue with Orrin Kerr, re: the Vinson decision.

Kerr:

The core problem, I think, is that Supreme Court doctrine has strayed far from the original meaning of the scope of federal power granted by the Constitution. Today’s constitutional doctrine permits a scope of federal power that is much broader than the original meaning of the Commerce Clause and Necessary and Proper clause would allow. When interpreting the scope of federal power, then, you need to decide what you will follow: The original meaning or case precedents. As I read Judge Vinson’s opinion, he mixes the two. Judge Vinson jumps back and forth between purporting to apply Supreme Court precedents and purporting to interpret the Commerce Clause and Necessary and Proper clause in light of its original meaning. Judge Vinson spends about half of the legal analysis on original meaning and about half of the legal analysis on precedent, and he seems to treat both as important.

Wilkinson:

I agree with Mr Kerr that the freshest, topmost layer of the body of constitutional interpretation built up over the ages by the myriad sages of the Supreme Court is at best tenuously connected with the meaning of the hallowed document ordinary Americans imagine to govern their republic. What I don’t understand is Mr Kerr’s objection to mixing respect for precedent and original meaning in rendering judgments about the “constitutionality” of legislation

This is a perfect illustration of what I was talking about in this post – and the rather invigorating thread that went with it. Originalism is incompatible with respect for precedent. Kerr is getting at this, but he isn’t as clear as he might be. If you just substitute ‘originalism’ in that first passage for ‘the original meaning’ it becomes clear. Wilkinson’s objection is met: obviously you can combine combine respect for original meaning with respect for precedent (that’s Will’s objection). But the philosophy that sees and advocates this practical possibility is the ‘living constitution’ view, nemesis of originalism. What you can’t do is combine originalism with respect for precedent, in coherent philosophical fashion. [click to continue…]

Matt Yglesias writes:

A lot of our politics is about symbolism. And symbolically intellectual property represents itself in the contemporary United States as a kind of property—it’s right there in the name. But it’s better thought of as a kind of regulation. Patents and copyrights are modeled, economically, the same as you would model any state-created monopoly.

I think the idea that intellectual property is property is too entrenched, at this point, for this to be an effective rhetorical strategy. Furthermore, rhetoric aside, philosophically the real breakthrough would be for people to realize that defending property rights is not tantamount to defending freedom. What strong IP protection generates is not a free market but something more like information feudalism: a market-unfriendly clusterfuck of fiefdoms and inescapably inefficient lord-vassal terms-of-service arrangements that any friend of freedom, in any ordinary sense, ought to look upon with disgust. The reason why libertarian rhetoric – defend property rights! – can underwrite feudalism, of all things, is that a certain sort of libertarianism, i.e. so-called propertarianism, really just plain is a form of feudalism. I’ve made the case at length.

I don’t see much hope of making a snappy rhetorical case that would break the unhealthy property = freedom link. But I think it might actually be possible to sidestep it by coming up with something like ‘information feudalism’ or ‘cyberfeudalism’ as a catchy term for IP rent-seeking or patent trolling. (Of course, ‘rent-seeking’ and ‘patent trolling’ are already pretty snappy.) To put the point another way, lots of folks are so averse to ‘government regulation’ that you will never get them to trade ‘private property’ talk for ‘regulation’ talk, as Yglesias suggests. But really what these folks are operating with is a kind of centralized = lots of regulation; decentralized = deregulated mental shortcut. The advantage of ‘feudalism’ would be to break that by making vivid the obvious possibility that decentralized stuff can still be too highly regulated, in effect.

UPDATE: turns out someone wrote the book already. Or at least picked a great title already.

I have a legal question about the Wikileaks case, prompted by this this Guardian piece, by John Naughton, linked in Henry’s comments. I must confess: I wasn’t surprised or particularly scandalized when Amazon kicked Wikileaks off its cloud, because I figured Amazon was probably technically in the right. Wikileaks had probably violated whatever terms of service were in place. I thought this sounded like the sort of thing any private company was likely to do, whether or not Joe Lieberman actually brought pressure to bear. If you have a problem customer who has violated your terms of service, you terminate service. (Just to be clear: I think ongoing attempts to shut down Wikileaks in patently legally dodgy ways are an utter scandal. Joe Lieberman pressuring Amazon is a scandal. I’m with Glenn Greenwald. I also think existing intellectual property laws are, by and large, an atrocious mess. Still, the law is what it is, so the question of how a private company like Amazon can and should be expected to react to this sort of situation is narrower than certain other more general questions about free speech and the press and so forth.)

My thought was this: Wikileaks obviously can’t own the copyright, so Amazon should not be expected to be slower to shut them down than they would be to shut down someone hosting pirate copies of Harry Potter novels. An annoying consideration, because it’s perfectly obvious that, if there is a good reason to take Wikileaks down, it isn’t because it’s like Napster in its glory days, or whatever. But there you go. But the Guardian piece says this is wrong: [click to continue…]

Via Laura at 11D, a bizarre, and surely either fake or drunken, memo. Penelope Trunk says she has verified the (excellent if true) Kimba Woods side of this. But the original memo cannot be real, surely?

It has become commonplace for self-styled leftist erstwhile advocates of the Iraq War to whine that their critics have been unkind to them. Can’t those critics accept, they wheedle, that there were reasons on both sides and that the crimes against humanity of the Saddam regime supported at least a prima facie case for intervention? During an earlier phase of discussion, when those advocates were still unapologetic, but whilst the slaughter was well underway, we were treated to numerous disquisitions on moral responsibility: yes there is slaughter, but _we_ are not responsible, it is Al Qaida/the Sunni “insurgents”/Al-Sadr/Iran ….

Well “the latest Wikileaks disclosures”:http://www.guardian.co.uk/world/2010/oct/22/iraq-war-logs-military-leaks ought to shut them up for good (it won’t, of course). “Our” side has both committed war crimes directly and has acquiesced, enabled, and covered up for the commission of such crimes by others. The incidents are not isolated episodes: rather we have systematic policy. The US government has a duty to investigate and to bring those of its own officials and military responsible to justice. Of course, this won’t happen and the Pentagon will pursue the whistle-blowers instead. So it goes.

I just read the Walker decision. Let me pick on something Orin Kerr has written which seems to me confused, or at least problematic. I’m going to get all philosophy about ‘rational basis’, and Kerr will really just be an occasion for discussion … but first the law background. [click to continue…]

An interesting Planet Money podcast (link goes to the associated post) about how much a pelican is worth. That is, how much should BP have to pay, per pelican, for wrongfully killing pelicans? How do you estimate dollar damages in cases where there aren’t markets that could give you a reasonable ‘market valuation’ of some degraded environmental condition, and in which laypeople are sort of torn between ‘infinitely valuable’ and ‘I’d pay a dollar’ responses to a survey question? It turns out that the answer is ‘a pelican for a pelican’, at least according to the federal agency responsible for solving this problem. If BP killed 500 pelicans, they have to pay whatever it costs to save 500 other pelicans, or pay for a pelican nursery that will raise 500 pelicans, or something of the sort.

I have a somewhat more than passing interest in the history of lex talionis, so I’m struck by this reversion to what is generally regarded as an intolerably primitive, retributivist formula. An eye for an eye, a pelican for a pelican. Of course, the first thing to note about it is that here it isn’t functioning in a retributivist spirit at all. Quite the contrary, it’s a utilitarian kludge for handling a case in which calculating a util seems too fraught.

Note the oddity of the fact that at no point in the podcast does anyone ask how much a pelican is worth to a pelican [to the pelican that happens to be that pelican]. Suppose someone proposed that it is impossible to value human life in a wrongful death suit, say, because we’ve outlawed slavery (just as we’ve outlawed traffic in migratory birds). That would be a funny sort of argument. But it does show up how our intuitions about environmental value are an odd mix of absolutism (nature is infinitely valuable) and instrumentalism (nature is valuable for us).

Maybe that means we are just monstrously inconsiderate of [better: conflicted about] animal rights in our typical thinking about environmental damage. I actually kinda think so [most days], but I don’t think there’s much chance of a serious paradigm shift that would go deep enough to alter that. So, setting aside that possibility, and moving back down the scale to more practical questions, it seems to me that there might be a way to tweak the ‘pelican for a pelican’ lex talionis principle, to make it more flexible – to make the currency of pelicans more fluidly exchangeable and money-like, in a way that the average American might find intuitive and, if not satisfying, then at least as not-unsatisfying as any formula is likely to be. [click to continue…]

As a sort of coda to Chris’s post of a couple of days ago, _02138_ magazine ran an article a few years ago on how various well known Harvard professors used research assistants. The magazine has since gone belly-up, but the article has been preserved “here”:http://harmonicminor.com/2007/12/09/a-million-little-writers/ and a few other places on the Internets. This bit on Dershowitz seems relevant to his various forays into public intellectualism:

Several of his researchers say that Dershowitz doesn’t subscribe to the scholarly convention of researching first, then drawing conclusions. Instead, as a lawyer might, he writes his conclusions, leaving spaces where he’d like sources or case law to back up a thesis. On several occasions where the research has suggested opposite conclusions, his students say, he has asked them to go back and look for other cases, or simply to omit the discrepant information. “That’s the way it’s done; a piecemeal, ass-backwards way,” says one student who has firsthand experience with the writing habits of Dershowitz and other tenured colleagues. “They write first, make assertions, and farm out [the work] to research assistants to vet it. They do very little of the research themselves.”

When one student couldn’t find a desired source for an HLS professor’s project, a Harvard research librarian commented, “Isn’t that the opposite of how you’re supposed to do it?” Other students point out that Dershowitz has been at the law school for four decades, and thus even his most apparently off-the-cuff suppositions are based on a long career of reading and practicing law. And Dershowitz does acknowledge researchers in his books.