The Faculty Lounge

Icelanders Vote No In Weekend Referendum

Icelanders have rejected a deal to settle claims by Britain and the Netherlands stemming from the 2008 collapse of Icelandic banks.  The British and Dutch governments are now expected to sue Iceland in an attempt to recoup billions paid to depositors after the Icelandic bank failure.

The deal, which would have settled the dispute on favorable terms (though, apparently, not favorable enough for Icelanders), was negotiated by Clearly Gottlieb lawyer, Lee Buchheit, a frequent guest Lounger, whose role in the deal was praised last year by the Icelandic press. 

An interesting turn of events, indeed.  Hopefully when all is settled Buchheit can be persuaded back to the Lounge for a return stint to discuss the affair.

Who Needs a Pick-Me-Up?

As if the UCC itself didn't provide a sufficient buzz, now comes ... UCC coffee!

(Hat tip to Bob Lawless at Credit Slips.)

Withdrawing from Customary International Law

I've been following for a while now the controversy that my neighbors Mitu Gulati and Curtis Bradley have stirred with their article, "Withdrawing from Custom," which appeared in the Yale Law Journal last year.

It's a sign of the importance of their project that the Yale Law Journal on-line now has four responses up --by Carlos M. Vázquez , Leah Brilmayer and Isaias Yemane Tesfalidet, William S. Dodge, and David Luban.  Gulati and Bradley now have a response to the responses up on ssrn, "Mandatory versus Default Rules: How Can Customary International Be Improved?"

As I've said before, this is really outside of my area of expertise and knowledge -- except the part that relates to nineteenth century US history.  And what sort of surprises me about the debate is the extent to which history, particularly the pre-Civil War history, has become a battle ground.  As I see this, the pre-Civil War history is on Mitu's and Curtis' side -- that is, there was a sense that states were weak and that the equal dignity of states, as well as practical reality, required a weak system of international law.  This is one of the reasons why pre-Civil War southerners were so enamoured of Vattel and why they so frequently returned to international law as a model for Constitutional practice within the United States.  

Given this history -- and the fact that historical practice is so frequently on the side of conservativism -- I'm not surprised that Curtis and Mitu turn to it.  It provides an important model for the world they want, of weak enforcement of international law.  What surprises me, though, is that people who respond to Mitu and Curtis are returning to that world.  I would have thought that they'd have labeled the era of Vattel and the pre-Civil War as the bad old days and instead focus on the post-Civil War story and say that we're in a different and more enlightened world now.  At least if I were responding to Curtis and Mitu, that's what I would have argued.  

All of this is most interesting, to see how history is wielded as part of advocacy.  And on that I hope to have some more thoughts at a later point.

Genocide and Political Groups

Readers who are following the ongoing political violence in Libya may be interested to know that Genocide and Political Groups was published late last year by Oxford University Press.  Its author is David Nersessian, currently a Visiting Assistant Professor at Boston University School of Law.  From OUP's website:

Genocide and Political Groups provides a comprehensive examination of the crime of genocide in connection with political groups.  It offers a detailed empirical study of the current status of political groups under customary international law, as well as a comprehensive theoretical analysis of whether political genocide should be recognized as a separate crime by the international community.

The book discusses whether a stand-alone crime of political genocide should be recognized under international law.  It begins by examining the historical development of genocide and critically assessing the unique requirements of the crime.  It then demonstrates that other international offences - notably crimes against humanity and war crimes - are not workable substitutes for a specific offence that protects political groups.

This is followed by an analytical study of the protection of human groups under international law.  The book proposes a new theory that links the protection of groups to individual rights of a certain character that give rise to the group's existence.  It then applies that theory in evaluating whether political groups are legitimate candidates for specific protection from physical and biological destruction 'as such'.

The writing includes an exhaustive analysis of state practice and opinio juris on the treatment of political groups.  It empirically refutes claims that political groups are protected already from genocide by virtue of post-Convention developments in customary international law.  In response to this legal reality, however, the book analyses the theoretical and public policy justifications for international criminal law and demonstrates that the international community would be well served by creating a separate international crime to address political genocide.

Related links of possible interest include:

A full chapter (detailing the new genocide theory);

A podcast of an interview with Nersessian about political genocide; and

A prior article by Nersessian on the distinctions between genocide and crimes against humanity (which David tells me is now part of the ICC prosecutor's investigation in Libya).

Truth, Reconciliation and the Bank Bailouts?

Dr. Jaime Malamud Goti is the former Solicitor General of Argentina.  During his tenure, he was responsible for the trials of Argentine junta members for human rights violations against the people of Argentina. I have just read Dr. Malamud Goti 's essay A Turbulent Past and a Problem with Memory, published last year in Oxford's International Journal of Transitional Justice.  He writes with beautiful honesty about blame, memory and justice-seeking.  He says:

As much as I believe that some acts are unquestionably abominable, I reject the notion that they presuppose an evil agent, that is, some radically evil being who does terrible and causally inexplicable things to others....I do believe ... that the circumstances of a violent political conflict justify forgoing punishment, despite its strong communicative power concerning what is right and wrong. My stance is based on my endorsement of two central notions: what I label ‘rationality skepticism,’ which I have just sketched, and a very ample understanding of luck, which affects the way our plans arise and how our lives shake out.

Dr. Malamud Goti's essay is at one level an analysis of the different goals of a criminal prosecution versus a truth and reconciliation commission, and the necessary preconditions for the success of either project.  At another level, the essay is a personal (and humane) rumination on human nature.  We are all deeply flawed, and but for some "accidents" of circumstance, any one of us might be in the position of the accused wrongdoer or the alleged victim. 

Might a truth-and-reconciliation approach work outside the transitional justice context?  Is there a private law application for a similar framework? Imagine if Elizabeth Warren were the head of a Consumer Credit Truth and Reconciliation Commission, not an Assistant to the President and Special Advisor to the Secretary of the Treasury on the Consumer Financial Protection Bureau.  How about  a Truth and Reconciliation Committee for tax evaders? (As a tax lawyer, I can't see that one working very well.)   Other suggestions?

 

Counter-Terrorism

As part of its Concise Hornbook Series, West has just published Principles of Counter-Terrorism Law, co-authored by my South Texas colleague, Geoff Corn, and Notre Dame law professor Jimmy Gurule.  Here's a description:

The book examines the military and law enforcement responses to international terrorism. Subjects include the legal authority to use military force; determining when the law of armed conflict comes into force; the law of targeting and how this authority is applied to terrorist operatives; preventive detention; prosecution of terrorists by military commission; the legal framework for gathering counter-terrorism intelligence information; prosecuting terrorists and their sponsors; freezing terrorist assets; and civil liability for personal injury or death caused by acts of international terrorism.

With a copyright date of 2011, this has to be one of the first arrivals of the New Year.   Congrats to both parents co-authors!

Lee Buchheit, Icelandic Hero

Frequent Guest Lounger Lee Buchheit was in the news this week for his role in negotiating what may, or may not, be a final resolution to the Icelandic banking crisis – recall that Icelanders defeated the last proposal in a referendum last March.  Wow, doesn’t the Icelandic crisis seem like a million years ago? This BBC article and this Wikipedia page provide a refresher – the case is really quite fascinating.

From Icenews:

Iceland, the Netherlands and the UK have completed the latest draft of a deal to settle the ongoing Icesave dispute. Initial reaction to the deal is largely positive, although the Icelandic parliament has yet to vote on it.

The leader of the Icelandic negotiators, the American lawyer Lee Buchheit, began his introduction to the deal by saying that the main question the negotiators faced was how to make a payment contract for a debt if one will not know the final amount for several years. . . .

Initial reaction to the contract in Iceland seems to be positive and there is little doubt that the deal is better than the one rejected by voters this March. Credit for the new deal will inevitably be split. Some will laud President Olafur Ragnar Grimsson for vetoing the last contract and forcing the countries back to the negotiating table. Finance Minister Steingrimur J. Sigfusson will have reason to be proud of himself if the deal comes into force, as his position on Icesave has been consistent throughout and the time and patience he has invested in the dispute could well come to symbolise his political career. Finally there is Lee Buchheit, the American lawyer appointed by Sigfusson to lead the Icelandic delegation in the latest round of talks. His rational and hard-headed attitude have likely been seminal in the creation of the latest draft. (emphasis mine)

The deal is also discussed in Reuters, Businessweek, and other news sources.

 

Hyperlinking and Defamation in Canada

(Cross-posted from Madisonian.net)

With thanks to one of my Canadian students for forwarding this to me, it appears that the the Supreme Court of Canada will soon be deciding a case which will determine whether hyperlinks may constitute publication for the purposes of defamation law, such that a person who publishes a hyperlink would be potentially liable in defamation for defamatory content on the site to which she has linked.  Story here.

One interesting thing about the news report (that I hyper-linked to!) is that it notes that in the United States "hyperlinking is not considered publication".  I'm actually not aware that any American case has expressly decided this yet, although I'm not a defamation expert.  I know in cases like Perfect 10 v Google, courts have held that hyperlinking does not amount to copying content for the purposes of copyright law.  But does this answer the publication question in the defamation context?  It may be that the question is moot in the United States because many of those who hyperlink could be potentially covered by section 230 of the CDA if they are not regarded as being the "content provider" of the relevant information, although this analysis may have its limits depending on the facts.

Looking forward the Canadian decision on this one.

Liu Xiaobo

 

 

 

    In Absentia

 

 

 

photo credit: MSNBC

FCPA: The Video

My friend Mike Koehler (a/k/a "the FCPA Professor") was one of several witnesses who testified at yesterday's Congressional hearing on the enforcement of the Foreign Corrupt Practices Act.  Readers interested in the testimony can find the C-Span video here.  And newcomers to the topic may wish to bookmark Mike's blog.

Sally Struthers, Uncle Sam and Tax Discrimination Against International Adoptions

Sally Struthers (of Archie Bunker fame) used to urge U.S. television viewers to sponsor a deserving child in another part of the world.  For a few dollars per month, a child could receive crucial healthcare! Food for the entire family! A new lease on life!  The sponsor would receive a photo of a sponsored child or perhaps even a letter from time to time.  It was, however, a decidedly distance relationship – i.e., sponsorship, not adoption.  Furthermore, the “sponsorship” of “a child” was not earmarked for any one particular individual, but rather for a charitable organization, so transfers qualified for an income tax deduction.

For Americans who adopt (not sponsor) children born outside the United States, some form of tax benefit has been available since 1997.  In 2010, the Patient Protection and Affordable Care Act (HR 3590) and the companion Health Care and Education Reconciliation Act of 2010 (HR 4872) made massive changes to the health care law and tweaked the adoption tax credit. For tax years 2010 and 2011, the adoption tax credit is $13,170.  It’s refundable, too.

Those bills became law in March, but I hadn’t focused on the changes to the adoption tax credit (changes to the tax law can be sneaky like that, popping up in all sorts of bills).  Until I taught tax credits in my basic Federal Income Tax class this semester, I hadn’t realized that adoptions of children who are U.S. citizens or residents are treated more favorably for income tax purposes than are adoptions of non-U.S. citizens or residents. 

Over-simply stated, a tax credit is available for expenses related to an international adoption only if the adoption becomes final, but the same finality rule does not apply to expenses for a U.S. adoption. 

What might be the policy reasons for this tax discrimination?  Is it because significant tax revenue is at stake?  According to U.S. State Department figures (see here), the number of international adoptions has increased steadily.  In 1999, there were 167,369.  In 2000, there were 18,477.  In 2001, there were 19,237.  (See here.)  If there were a correlation between completed adoptions and failed adoptions, one could make a rough estimate of the number of taxpayers who could have benefitted from an adoption tax credit, but for the fact they could not or did not finalize their international adoption.

Alternately, is the different tax treatment of U.S. and international adoptions just one more example of attempts to influence social policy through the tax laws?  Maybe, but I wonder whether tax credits factor significantly into a decision to adopt a U.S. citizen versus a non-U.S. citizen. 

Haiti: Commission Calls for Moratorium on Forced Evictions

 

In October, I was part of a team of advocates who testified before the Inter-American Commission on Human Rights at a thematic hearing on forced evictions being carried out in displacement camps across Haiti.  We also filed a Request for Precautinary Measures asking that the Commission direct the State of Haiti to implement a moratorium on forced evictions and to adopt other measures necessary to protect the safety and security of people who live in the camps.

Last week, the Commission granted our Request.

The New York Times has reported that nearly 40,000 people have been evicted from the camps, and another 144,000 face a threat of imminent evictions.   The numbers alone are startling, but so too are the details of how these evictions are being carried out. 

On fact finding missions to Haiti, we documented cases where entire settlements have been destroyed.  In one case, armed police officers invaded a camp with state owned bulldozes late at night and demolished all of the shelters inside.  After residents pieced together new shelters, the police and the bulldozers destroyed them again.   The police have also beaten and terrorized people while forcing them out of the camps, and have arrested and detained those who protest their eviction.  Food, water and medical care are being withheld from camps targeted for eviction, leaving the people inside to starve, or to send their kids out into the streets to hustle for food and water.

The Inter-American Commission underscored “the importance of respecting international human rights obligations in all circumstances, in particular non-derogable rights and the rights of the most vulnerable.”  It directed Haitian authorities to:   

• adopt a moratorium on forced evictions from the camps
• ensure minimum health and safety standards in alternative settlements;
• provide judicial recourse to people who have been unlawfully evicted;  
• implement effective security measures to protect people in the camps, especially women and children;
• train security forces on the rights of displaced persons, especially as it relates to forced evictions;
• and ensure access to the camps by international observers.

The burden is now on Haiti to comply with these directives.  But donor countries also have a role to play, given their scope of influence over the reconstruction process.  Says Nicole Phillips, staff attorney at the Institute for Justice and Democracy in Haiti: “we hope that the international community will also respect these recommendations and assure that their actions do not directly or indirectly support unlawful evictions.”

-Kathleen Bergin

photo credit: International Action Ties

 

Tonight in a Tarp Camp

Tomas muscles towards Haiti tonight, and is expected to hit land tomorrow.  It's hard to get my head around what this will mean for the 1.5 million people across the earthquake zone who still live in displacement camps.  My brain just isn't wired to comprehend those kinds of numbers.

I often think it's easier to stand in the shoes of one person, at one moment in time.

And so tonight, my mind is with one child who lives in a tarp camp and who's been clinging to her mother since this morning.  That's when I hear it started to rain.  They're huddled together under a torn bed sheet, or maybe it's a scrap of plastic, and by now the mud is more than knee deep.  The rain and the mud are nothing new, and they're used to sleeping up-right.  But tonight there'll be no sleeping. 

The rain will get stronger, and the wind will get louder, and their tarp within hours will blow away.  And what will they do then . . . cling to a lamp post or duck into the crevice of a collapsed building?  Both the UN and the government of Haiti announced a plan to evacuate the camps, advising people to "seek alternative shelter," or make their way to the home of family or friends.  Seriously?  The child with her Mom in the camp . . . they don't have anyone to take them in.  That's why the live in a tarp camp. 

And where exactly are those shelters?  No-one knows for sure, because word of the official evacuation "plan" hasn't gotten to all of the camps.  (It's strange to live in a foreign country and know more about the supposed evacuation than people who need to be evacuated).  Rumors are circulating that some of the schools are open, but if that's true they're already full.  And even if they're not, those buildings aren't reinforced.  What's the likelihood a school already bruised by the earthquake will survive a tropical storm or the mudslide it sets off?

Besides, we're talking about people who actually know what it's like to be trapped under a fallen building - people who've lost a limb there or watched a loved one die there.  There's a Mom and a child in a camp right now who've had that very experience.  And it's simply impossible for them to be anywhere and trust that the walls won't collapse around them. 

Just checked the weather channel and Tomas is still on course.  And I'm still struggling to connect with the thought of a million and a half earthquake survivors riding out a tropical storm in a tarp camp.   I still don't get those numbers.  So tonight I'll just pray for that one child and her Mom.  A million and a half times. 

-Kathleen A. Bergin

 

 

Global Free Speech Update

 

Japan:  a UN working group slams the conviction of two greenpeace activists who had disclosed evidence of corruption in the country’s controversial whaling industry, saying it raises significant free speech and free press concerns under the ICCPR.

South Africa:  the ANC is vetting a media reform bill that would establish a tribunal with the authority to punish journalists for the content of their reports. Party officials insist that the bill is still being tweaked, but free speech stakeholders are alarmed that it is even being considered.

Mexico:  The Committee to Protect Journalists calls on the national government to end the culture of impunity that has allowed attacks against journalists and media workers to go unpunished.  More than 30 journalists have been killed in Mexico over the past 4 years, most in retaliation for reporting on organized crime.

Costa Rica: access to the internet is a fundamental right, so declares the Constitutional Court in Costa Rica. The government will reportedly prioritize the development of telecommunication technology across the country in light of the ruling.  Last year, the high court in France reached a similar conclusion, striking down a three-strikes law that barred internet access as a punishment for computer piracy. 

-Kathleen Bergin

Welcome to the Blogosphere: "Lawfare: Hard National Security Choices"

Robert Chesney, Jack Goldsmith and Ben Wittes just launched an exciting new blog entitled "Lawfare: Hard National Security Choices" or The Lawfare Blog for short (my shortening).  Based on the experience and prior writings of these bloggers, this will be an invaluable resource for those who follow national security issues.  Here's their description: 

We mean to devote this blog to that nebulous zone in which actions taken or contemplated to protect the nation interact with the nation’s laws and legal institutions. We will, I am sure, construe this subject broadly to include subjects as far-flung as cybersecurity, Guantánamo habeas litigation, targeted killing, biosecurity, universal jurisdiction, the Alien Tort Statute, the state secrets privilege and countless other related and not-so-related matters.

* * * *

The name Lawfare refers both to the use of law as a weapon of conflict and, perhaps more importantly, to the depressing reality that America remains at war with itself over the law governing its warfare with others. This latter sense of the word—which is admittedly not its normal usage—binds together a great deal of our work over the years. It is our hope to provide an ongoing commentary on America’s lawfare, even as we participate in many of its skirmishes.

While we are on the topic of Lawfare, readers may be interested in next week's conference at Case Western entitled (wait for it) LAWFARE!  Details are posted here. 

Is Australia Really Ready for a Female Prime Minister?

Many readers will be aware that Australia's recent federal election (August 21) resulted in a hung parliament.  In other words, neither of the major parties managed to garner a sufficient majority in the lower house to form a government and leaders of each party are now busily negotiating with independents to try to form a minority government.

While this is an interesting constitutional moment in itself for Australia, I recently read an online article that considers the issue from a gender perspective.  In this article Madeleine Coorey argues that the election may demonstrate that Australia is not really ready for a female Prime Minister, particularly a female who is unmarried (although in a steady relationship) and has no children.  While Julia Gillard did become Australia's first female Prime Minister some months ago, she did it as a result of an internal coup in which she ousted the labor party's leader (and then Prime Minister), Kevin Rudd.  No woman has yet been popularly elected as Prime Minister while leading a major party in Australia.

Coorey's article focuses on narratives raised in the media during the election campaign that emphasized Gillard's family status and characterized her taking over the party leadership from the very unpopular Rudd as a bitchy, backstabbing act.

While I missed most of the election coverage, it is an intriguing way of looking at Australian politics where, as in the United States, women have typically not risen to high positions in government or, for that matter, in the High Court (at least until very recently).  When I practised law in Victoria in the 1990s, no women had ever been appointed to the bench of the Supreme Court of Victoria (although that has changed recently too).

Finally, A Turn To South Asia

I thought I'd highlight a particularly significant symposium we've just published in the Drexel Law Review: Perspectives on Fundamental Rights in South Asia.  The event was organized by my colleague Anil Kalhan and presented as a panel at last winter's AALS meeting,  in anticipation of the formation of a new Law and South Asian Studies section.  Marc Galanter penned the introduction and noted the importance of the event:

It is a pleasure to introduce this symposium, apparently the first of any mainstream American law review to focus on South Asian law. Its appearance is one of several markers that the neglect of South Asia by American law schools is being left behind. Four of the five articles included here were presented at a session of the Association of American Law Schools (AALS) 2010 meeting; the first appearance of South Asia on the program since a 1986 plenary session on the American participation in the litigation arising from the 1984 Bhopal gas leak disaster. Unlike that earlier, one-off appearance, the 2010 session marks the institutionalization of interest in the area.

 

Global Free Speech Update

 

 

Malaysia:  protests marked the fiftieth anniversary of the Internal Security Act, an anti-communist measure passed in the 1960s that allows for virtually limitless detention without trial on quite meager grounds of suspicion. Predictably, dozens of protesters were arrested and charged with violating the ISA.

United States:  a federal judge dismissed a group of Texas cities from a lawsuit challenging the state’s open meeting laws. The judge ruled that municipalities do not enjoy First Amendment protection as such, and that the rationale for extending free speech rights to private corporations in Citizens United does not carry forward where public municipalities are concerned.

Somalia:  journalists are calling on the newly elected government to put forth a media reform bill that would liberalize broadcast licensing criteria, ensure judicial independence, and clamp down on violence and threats against journalists and broadcasters. Link here to the 2008 Media Sustainability Index Report for Somalia.

Europe:  The OSCE Representative on Freedom of the Media released it’s first regular report to the OSCE council in July. The report takes note of media developments in several OSCE states, and promises to give more attention to "the digital switchover in broadcasting and matters related to New Media."

-Kathleen Bergin

Lying and Consensual Sex

I was listening to an NPR broadcast at lunchtime today and was struck by a talkback portion of the show dealing with a case in Israel where a man was sentenced to an 18 month jail term for rape in Israel because he had lied to a Jewish woman to convince her to have sex with him - he told her he was Jewish when, in fact, he was an Arab.  The judge in the case referred to his conduct as "rape by deception".  BBC story here.

What was particularly interesting to me was listening to a panel of non-lawyers talking about how they perceived the definition of rape.  Most of the talkback part of the show focused on things like the perceived necessity of physical violence to support a rape conviction and/or various social definitions of fraud.  During the time I was listening to the show, no one - not even the host - talked about the concept of "consent" to sex, or discussed whether the sexual act could be meaningfully "consensual" in situations where one party has lied to the other to convince them to engage in sexual activity.  Am I missing something or shouldn't this have been an important part of the discussion?

Incidentally, one person who called into the show made an analogy between lying to someone to get them to have sex and slipping drugs into the person's drink in order to induce them to have sex.  Interesting analogy, but I'm not sure that it works on close examination.  The drug situation physically removes a person's ability to make clear decisions, whereas the lying situation leaves the "victim's" natural ability to analyze the situation intact, but presents the victim with false information.  Is this significantly different or not?

Call for Papers On "Our Children – The World’s Children: The Effects of Globalization on Children"

The AALS Section on Children and the Law has issued a call for papers for the 2011 San Francisco meeting on "Our Children --  The World's Children: The Effects of Globalization on Children." 

The program, which will be Friday, January 7, 2011, from 4:30 to 5:45 p.m., is co-sponsored by the Sections of Family and Juvenile Law, International Law, Immigration Law and International Human Rights.  The Section seeks three presenters for this program. It is hoped that the chosen presenters will shed light on the legal circumstances of children in the United States and abroad whose lives are increasingly impacted by the movement of people, goods and wealth around the globe. 

The Section invites all interested faculty members of AALS member and fee-paid schools to submit papers dealing with any aspect of the foregoing topic. A review committee consisting of members of the Executive Committee of the Section on Children and the Law will review submissions and select papers for inclusion in the program. Papers will be selected on the basis of their quality, originality and engagement with the program theme. 

If you are interested in presenting a paper, please submit an abstract of not more than 500 words by September 1, 2010. In addition to an abstract, you may also submit a complete draft of your paper. Please email your submission to [email protected]. Please also include the phrase "Children and the Law Call for Papers" in the subject line of your email. Authors of selected papers will be notified by October 1, 2010. 

Papers that have already been selected for publication are eligible for consideration, provided that they will not have been published by the time of the annual meeting. Papers posted on SSRN or similar prepublication resources before the annual meeting are eligible. Participating panelists are free to publish their papers wherever they choose. For interested panelists, The Whittier Journal of Child and Family Advocacy has expressed a willingness to publish papers from the program. Call for Papers participants will be responsible for their annual meeting registration fee and travel expenses. 

Please direct questions and requests for additional information to: Professor Joan M. Shaughnessy Chair, AALS Section on Children and the Law, Washington and Lee School of Law, Sydney Lewis Hall, Lexington, VA 24450, 540-458-8512, [email protected]