Archive for the ‘International & Comparative Law’ Category
Debating Human Rights History
posted by Jaya Ramji-Nogales
In 2010, Samuel Moyn published “The Last Utopia: Human Rights in History“, a book that provoked its readers to critically engage with questions about when human rights emerged as an agenda on the international political scene. Moyn’s suggestion that this was a strikingly recent development (dating to 1977) raised deeper questions about the politics underlying human rights and its successes in displacing alternate utopian visions. Last year, Moyn published a book review of Jenny Martinez‘s “The Slave Trade and the Origins of International Human Rights Law” and Kathryn Sikkink‘s “The Justice Cascade: How Human Rights Prosecutions Are Changing World Politics“, criticizing both books for insufficiently acknowledging the limitations of international human rights law as an avenue for social and political reform.
This month’s Harvard Law Review contains two new and worthwhile contributions to the debate. Philip Alston begins with a review of Jenny Martinez’s book, noting the importance of determining the origins of today’s human rights system as well as the lack of consensus around the answer to that question. Alston notes the ways in which Martinez’s book contradicts Moyn’s thesis, situating each author within a typography of histo
riographical debates. He critiques both, noting that they present different definitions of human rights that carry buried analytical assumptions, and suggests that a meaningful history should recognize that human rights is a polycentric enterprise. In other words, historians of human rights must examine ideas, social movements, legal traditions, and institutions in order to understand where human rights came from and where it is headed.
Jenny Martinez responds to Alston’s review, presenting a more nuanced view of her causal arguments than her critics, and taking on Moyn in the process. She agrees with Alston that human rights is polycentric, and suggests that Moyn’s definition of human rights leaves out important aspects of the larger picture. Martinez defends herself against claims that a pro-human rights bias infuses her work, and argues that an accurate account of human rights prior to 1977 is crucial in understanding the role of international law today and drawing lessons for current legal institutions.
The books and articles are worth reading for the rich factual analysis alone. But there’s more to human rights history than that. This is one of the most provocative debates in recent years about the analytical framework through which we understand human rights. As Alston notes, “[t]here is a struggle for the soul of the human rights movement, and it is being waged in large part through the proxy of genealogy.”
(hat tip to Jacob Katz Cogan, whose wonderful International Law Reporter alerted me to the Alston and Martinez articles; cross-posted on IntLawGrrls)
May 29, 2013 at 10:15 am
Posted in: History of Law, International & Comparative Law
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Theseus’s Paradox – Form and Substance in Evolving Capital Markets
posted by Charles Whitehead
Living in Beijing underscores the importance of change and adaptation. There is a noticeable drop in the amount of processed sugar in foods, reflecting local (and healthier) tastes. Virtually every restaurant delivers, including McDonald’s (which raises the question, if you’re going to order delivery, why McDonald’s?). And, most particularly, I recently joined the thousands of Chinese students and pensioners who weave in-and-around traffic on electric battery-powered mopeds. It is a great way to get around the city (even if some of the pensioners have a tendency to cut you off).
The same focus on change arises in the capital markets. A person who owns or sells a security is presumed to own or sell the financial risk of that security. By selling shares, for example, the costs and benefits of those shares—the rise or fall in share price—are understood to run with the instruments being sold. Changes in the capital markets, however, have begun to call that presumption into question. Increasingly, market participants can use new trading methods to sell instruments to one person, but transfer their financial risk to someone else. The result is greater complexity and new challenges to regulation and the regulators.
To what extent should the securities laws adjust to reflect those changes? The answer largely turns on the question of “identity.” Moving from modern-day Chinato to ancient Greece, the Greek historian Plutarch identified the question in his story of Theseus, the mythical king of Athens. For many, Theseus is known for slaying the Minotaur, a half-man, half-bull monster that devoured children sent to Cretein tribute to King Minos. According to Plutarch, after Theseus returned to Greece, his boat remained in Athensharbor for centuries as a memorial to his bravery.
April 17, 2013 at 7:47 am
Posted in: Corporate Finance, International & Comparative Law, Legal Theory, Securities
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Bright Ideas: Mark Weiner on his new book Rule of the Clan
posted by Deven Desai
Sometimes fortune smiles upon you. I met Mark Weiner when we started law school. My life and my work is much better for it. Mark is a scholar and more. He obtained his B.A. in American Studies from Stanford, his J.D. from Yale, and his PhD in American Studies from Yale.
His most recent project is his excellent book, The Rule of the Clan. Ambassadors, professors from all around the world, members of the 9/11 commission, and publishers have embraced the book. Mark argues, and I think rather well, that the state has a quite important role to play, and we ignore that to our peril. Publishers Weekly has said:
A nuanced view of clan-based societies … Weiner’s argument is a full-throated defense of the modern centralized state, which he sees as necessary to protect human rights: “In the face of well-intended but misguided criticism that the state is inimical to freedom, we must choose whether to maintain the state as our most basic political institution or to let it degrade.” An entertaining mix of anecdote and ethnography.
The New York Journal of Books has called the book “accessible, mesmerizing, and compelling.”
I wanted to get into how Mark came up with the project, why it matters, and, for the writers out there, the process of writing about such a complex subject but in a way that is accessible to a general audience. So I asked Mark whether we could do a Bright Ideas interview. He graciously agreed.
Mark, the book is great. I want to jump in and ask, What do you mean by “clan”?
Thanks, Deven. In my book, I consider clans both in their traditional form, as a subset of tribes, but also as a synecdoche for a pattern by which humans structure their social and legal lives: “the rule of the clan.” Clans are a natural form of social and legal organization. They certainly are more explicable in human terms than the modern liberal state and the liberal rule of law. Because of the natural fact of blood relationships, people tend to organize their communities on the basis of extended kinship in the absence of strong alternatives.
So why clans now?
Two reasons. First, the United States is involved militarily in parts of the world in which traditional tribal and clan relationships are critical, and if we don’t understand how those relationships work, including in legal terms, we have a major problem.
Let me give you an example from Guantanamo. In the book, I tell a story of a college friend who was in charge of the team there interrogating detainees from Saudi Arabia. (I should note that my friend finds torture morally repugnant and against the national interest, as do I, and that she has advocated for this view in meaningful ways.) Over the course of her work, my friend realized that because of the first-name/last-name structure of the detainee tracking system, basic information about detainee tribal affiliations hadn’t been gathered or had been lost. This meant, among other things, that we couldn’t fully appreciate the reason why some of these men had taken up arms against us in the first place—for instance, because the United States had become embroiled in their centuries-long, domestic tribal war with the House of Saud.
Our ignorance about these issues is what I call the contemporary “Fulda Gap.” Our lack of knowledge about more traditional societies hinders our ability to understand the motivations of those who oppose us and leaves us vulnerable—and, even more important, it diminishes our ability to cooperate with our friends and to assist liberal legal reformers abroad in ways that are both effective and ethical.
The second reason to study clans, and ultimately for me even more important than the first reason, has to do with our own political discourse here at home. You could say that I became interested in clans because of widespread ideological attacks against the state within liberal societies—that is, attacks on government. By this I mean not simply efforts to reduce the size of government or to make it more efficient. Instead, I mean broadside criticisms of the state itself, or efforts to starve government and render it anemic.
I think you are saying there is something about clans that helps us organize and understand our world. What is it?
It’s often said that individual freedom exists most powerfully in the absence of government. But I believe that studying the rule of the clan shows us that the reverse is true. Liberal personal freedom is inconceivable without the existence of a robust state dedicated to vindicating the public interest. That’s because the liberal state, at least in theory, treats persons as individuals rather than as members of ineluctable status or clan groups. So studying clans can help us imagine what our social and legal life would become if we allow the state to deteriorate through a lack of political will.
By the way, the idea that the state is somehow inimical to freedom—that we gain individual freedom outside the state, rather than through it—is hardly limited to the United States. It was a core component of Qaddafi’s revolutionary vision of Libya. Or consider Gandhi, who advocated for a largely stateless society for postcolonial India. Fortunately for India, his vision wasn’t realized. Instead, we owe the prospects for further liberal development there to the constitution drafted by B. R. Ambedkar.
Hold on. From Indian independence to Libyan revolution seems a long jump. Can you help me connect the dots?
March 19, 2013 at 1:47 pm
Tags: clans, Constitutional Law, international law, rule of law, terrorism, War on Terror
Posted in: Articles and Books, Bright Ideas, Constitutional Law, History of Law, International & Comparative Law, Jurisprudence
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The Rule of the Clan – Mark Weiner’s new book
posted by Deven Desai
What is happening with the world? Is it falling apart? Is the state the problem? Is everything to big? Is everyone better off breaking into small groups? Mark Weiner has answers in his book The Rule of the Clan. Understanding clans helps us understand the problems and relationships among individual liberty, the state, domestic policy, and foreign policy.
Mark Weiner is one of the best thinkers I know. I will note that Mark is one of my dearest friends as well. Mark has authored three books. The first two have won awards. The latest, Rule of the Clan, is, to me, yet more impressive. I will be posting more about this book. But for now, here is Mark on the Brian Lehrer Show.
March 15, 2013 at 2:05 pm
Posted in: Articles and Books, Constitutional Law, Culture, History of Law, International & Comparative Law, Law and Humanities
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Review of Abner S. Greene, Against Obligation: The Multiple Sources of Authority in a Liberal Democracy
posted by Andrew Sutter
Abner S. Greene, Against Obligation: The Multiple Sources of Authority in a Liberal Democracy (Harvard University Press 2012)
Don’t be alarmed by his book’s sweeping title: Abner Greene isn’t suggesting that we chuck Contracts from the law school syllabus. Rather, he has three particular sorts of supposed obligations in his crosshairs: a moral obligation always to obey the law (also known as political obligation), an obligation to defer to “the past” – be it “original meaning” or simply judicial precedent – in constitutional jurisprudence, and an obligation by public officials to be bound by the Supreme Court’s reading of the Constitution. A surprising number of theories propose the existence of such obligations in “content-independent” form – and Greene refutes them methodically, even relentlessly, one after another. One of the achievements of this book is that he manages to sound more reasonable than radical while doing so.
But while the book’s subtitle, “The Multiple Sources of Authority in a Liberal Democracy,” suggests a broader viewpoint, this book is embedded within an entirely American discourse. A reader outside the US, or even one of a comparativist bent within it, might well wonder whether Greene’s arguments are as airtight as they seem, whether they’re as controversial as he may think they are, or even what sort of philosophy this kind of book is really about.
February 10, 2013 at 11:04 am
Posted in: Book Reviews, Constitutional Law, International & Comparative Law, Jurisprudence, Religion
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How do you say “copyright” in Zulu?
posted by Lea Shaver
South African woman reading a newspaper in Zulu
Are the costs and benefits of copyright protection roughly the same in English and in Zulu? Or is copyright law’s impact radically different from one language to another?
Copyright protection gives authors the exclusive right to market their works. This has the benefit of channeling profits back to authors, enhancing the financial incentives to create new works. But it also has the cost of limiting competition, inflating prices for consumers, and restricting public access to existing works.
Copyright scholars have extensively debated these costs and benefits. But we have not yet done much thinking about how the cost-benefit calculus might play out for different languages.
That project lies at the heart of my current work-in-progress, which advocates targeted copyright reforms to promote publishing in lesser-spoken languages.
From an economic perspective, the publishing market is fundamentally different from one language to another. English books can be marketed to an enormous and wealthy global audience. The audience for Zulu works, however, is 1% as large and has significantly less disposable income.
Scholars continue to debate the relative effectiveness of financial versus nonfinancial incentives for authorship. But there is no doubt that the incentives are powerfully present for English-language works. That does not appear to be true for works in Zulu.
According to recent data, 77% of books sold within South Africa are in English, though only one in ten South Africans speaks English at home. The vast majority of South Africans speak African languages such as Zulu. Yet books in all African languages combined account for only 11% of the South African publishing market. Of African language book sales, 89% are textbooks, subsidized by government purchasing.
The copyright system that has so effectively incentivized the production and distribution of works in English has not produced equivalent benefits in Zulu. The costs of copyright protection – including higher prices and barriers to translation – are also particularly burdensome for the Zulu-speaking community.
In theory, the costs of copyright protection may outweigh the benefits in many linguistic communities characterized by small size and low wealth. I’m working now on some case studies to see whether facts on the ground support that prediction.
If so, my suggestion is not to change copyright law generally, but to adjust the rules for certain languages. There are thousands of different linguistic communities in the world, each as unique as the various expressive works that copyright law protects. A one-size-fits-all regime is unlikely to be ideal.
Reforms to strike the right balance could be implemented at the level of national policy making. By treating different languages differently, countries may be able to improve publishing in languages such as Zulu without prejudicing the interests of authors and publishers in the dominant markets.
In a series of posts during my month as a Co-Op guest blogger, I’ll explore how we might structure such reforms and other issues raised by this project.
February 3, 2013 at 1:02 pm
Tags: copyright, languages, local language limitations, publishing, South Africa, translation
Posted in: Culture, Intellectual Property, International & Comparative Law, Uncategorized
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Volume 60, Issue 2 (December 2012)
posted by UCLA Law Review
Volume 60, Issue 2 (December 2012)
Articles
| The Battle Over Taxing Offshore Accounts | Itai Grinberg | 304 |
| The Structural Exceptionalism of Bankruptcy Administration | Rafael I. Pardo & Kathryn A. Watts | 384 |
| Patients’ Racial Preferences and the Medical Culture of Accommodation | Kimani Paul-Emile | 462 |
Comments
| “Not Susceptible to the Logic of Turner”: Johnson v. California and the Future of Gender Equal Protection Claims From Prisons | Grace DiLaura | 506 |
December 28, 2012 at 11:54 pm
Posted in: Bankruptcy, Constitutional Law, Feminism and Gender, Health Law, International & Comparative Law, Law Rev (UCLA), Tax
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UCLA Law Review Vol. 60, Discourse
posted by UCLA Law Review
Volume 60, Discourse
Discourse
| The Benefits of a Big Tent: Opening Up Government in Developing Countries | Jeremy Weinstein & Joshua Goldstein | 38 |
| The Case Against Tamanaha’s Motel 6 Model of Legal Education | Jay Sterling Silver | 52 |
December 7, 2012 at 11:10 pm
Posted in: Book Reviews, Government Secrecy, International & Comparative Law, Law Rev (UCLA), Law Student Discussions
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Stanford Law Review Online: Privilege and the Belfast Project
posted by Stanford Law Review
The Stanford Law Review Online has just published a Note by Will Havemann entitled Privilege and the Belfast Project. Havemann argues that a recent First Circuit opinion goes too far and threatens the idea of academic privilege:
In 2001, two Irish scholars living in the United States set out to compile the recollections of men and women involved in the decades-long conflict in Northern Ireland. The result was the Belfast Project, an oral history project housed at Boston College that collected interviews from many who were personally involved in the violent Northern Irish “Troubles.” To induce participants to document their memories for posterity, Belfast Project historians promised all those interviewed that the contents of their testimonials would remain confidential until they died. More than a decade later, this promise of confidentiality is at the heart of a legal dispute implicating the United States’ bilateral legal assistance treaty with the United Kingdom, the so-called academic’s privilege, and the First Amendment.
He concludes:
Given the confusion sown by Branzburg’s fractured opinion, the First Circuit’s hardnosed decision is unsurprising. But by disavowing the balancing approach recommended in Justice Powell’s concurring Branzburg opinion, and by overlooking the considerable interests supporting the Belfast Project’s confidentiality guarantee, the First Circuit erred both as a matter of precedent and of policy. At least one Supreme Court Justice has signaled a willingness to correct the mischief done by the First Circuit, and to clarify an area of First Amendment law where the Court’s guidance is sorely needed. The rest of the Court should take note.
Read the full article, Privilege and the Belfast Project at the Stanford Law Review Online.
December 5, 2012 at 10:45 am
Tags: academic privilege, academy, Civil Rights, Constitutional Law, First Amendment, international law, privilege, treaties
Posted in: Anonymity, Civil Rights, Constitutional Law, Current Events, First Amendment, International & Comparative Law, Law Rev (Stanford), Media Law
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Schneier Calls Out Papers on How Terroristist Groups End
posted by Deven Desai
Bruce Schneier noted some research by Rand about How Terrorist Groups End. The abstract
Abstract: How do terrorist groups end? The evidence since 1968 indicates that terrorist groups rarely cease to exist as a result of winning or losing a military campaign. Rather, most groups end because of operations carried out by local police or intelligence agencies or because they join the political process. This suggests that the United States should pursue a counterterrorism strategy against al Qa’ida that emphasizes policing and intelligence gathering rather than a “war on terrorism” approach that relies heavily on military force.
likely rings true to many who question the use of drones etc. (The comments on Bruce’s page get into some of this point).
To me the fact that RAND put the paper out is interesting. I can never tell whether RAND or what RAND is about. It would seem that claims that RAND is only going to support the government’s goals might be challenged here. Also Bruce calls out the work of Max Abrahms who in 2008 and 2011 addressed these ideas as well. I urge you read the 2008 post and here is the 2011 abstract
The basic narrative of bargaining theory predicts that, all else equal, anarchy favors concessions to challengers who demonstrate the will and ability to escalate against defenders. For this reason, post-9/11 political science research explained terrorism as rational strategic behavior for non-state challengers to induce government compliance given their constraints. Over the past decade, however, empirical research has consistently found that neither escalating to terrorism nor with terrorism helps non-state actors to achieve their demands. In fact, escalating to terrorism or with terrorism increases the odds that target countries will dig in their political heels, depriving the nonstate challengers of their given preferences. These empirical findings across disciplines, methodologies, as well as salient global events raise important research questions, with implications for counterterrorism strategy.
Bruce was cool enough to include a link to the paper.
November 15, 2012 at 9:57 pm
Posted in: International & Comparative Law, Military Law, Political Economy, Politics
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Call for Papers
posted by Gerard Magliocca
In April, the Indiana University Robert H. McKinney School of Law will be holding a conference on “Teaching International Law Outside Law Schools.” The call for papers is here for those who are interested in participating.
November 8, 2012 at 2:35 pm
Posted in: International & Comparative Law
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Volume 60, Issue 1 (October 2012)
posted by UCLA Law Review
Volume 60, Issue 1 (October 2012)
Articles
Comments
November 2, 2012 at 7:11 pm
Posted in: Constitutional Law, Criminal Law, Criminal Procedure, Evidence Law, Intellectual Property, International & Comparative Law, Law Rev (UCLA), Privacy, Privacy (Medical)
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Super-Sizing IP Values
posted by Mark McKenna
In a 2006 Stanford Law Review article, Madhavi Sunder despaired that “there are no ‘giant-sized’ intellectual property theories capable of accommodating the full range of human values implicit in intellectual production.” But, she argued, there should be. From Goods to a Good Life is her full response to her own challenge, pushing intellectual property scholars to conceive of IP rights not through the narrow lens of incentives to create and distribute, but as tools to promote human flourishing broadly understood.
I am quite sympathetic to Sunder’s goals here, and we share an affinity for the capabilities approach most prominently associated with Amartya Sen and Martha Nussbaum. Indeed, Brett Frischmann and I have also suggested (only in much broader and tentative terms than Sunder) that IP theory needs to open up to a broader range of goals. Yet in spite of the ambition of Sunder’s project, I was struck by how traditional her project ultimately seemed. For notwithstanding her avowedly liberal goals, Sunder embraces property as much as she rejects it, and many of the tools on which she would rely to promote development depend heavily on the very market mechanisms she criticizes for having led to the exploitation and inequality she wants to address.
To be sure, Sunder has different ideas about the scope of IP entitlements – particularly when those entitlements run up against concerns about access to medicines or other cultural products. But fundamentally what she wants is a principle of equal recognition that operates in practice and not just in theory. She wants poor people’s inventive/creative contributions to be recognized, both in the sense of attribution and in the sense that those contributions deserve the status of property that can be traded to improve material conditions. Hers is a freedom-promoting conception of property that, as Jedediah Purdy has written, traces to the “Enlightenment period of the mid-to-late eighteenth century, when it was exemplified in the thought of the Scottish jurist, moral philosopher, and proto-economist Adam Smith.” This notion that the ability to own property can enable individual creators to make a life for themselves is prominent in certain threads of IP literature. But notably, most proponents of that view (Rob Merges comes to mind most significantly here) favor more IP protection than do the cultural critics of IP on whose work Sunder draws when she argues, persuasively in my view, for greater recognition of the need to engage with, and even to subvert, creative works.
This is not to say that Sunder would come to the same conclusions as these scholars about how a freedom-promoting conception of IP should play out in practice – clearly Sunder would balance the competing interests of creators and users differently, at least in some cases – only that I am struck by how resonant her approach is with those understandings of property, and indeed by how much actualizing her views would depend on property as an institution. Thus, I had the feeling reading the book that Sunder is deeply conflicted about the role of the market as the mechanism for promoting human flourishing.
Sunder, for example, suggests many times throughout the book that people in the developing world might rely on geographical indications (or some variant thereof) as means of gaining recognition for their creative accomplishments and as a lever for economic development. But GI’s, as Sunder notes, are brands – they work only to the extent they are valued by consumers because they denote (or reify) some characteristic consumers care about. And getting consumers to notice and care about a new GI won’t be easy, because they are swimming in GI’s already. There are well over 100 American Viticultural Areas in California alone; the names of thousands of counties in the US are protected appellations of origin; hundreds of wine-related indications are protected just in France; and thousands more GI’s (counting the several varieties) are protected in Europe.
To succeed with a GI in this marketplace, you need a megaphone. That will be even truer for indications that refer to places in the developing world, since as Sunder ably demonstrates, we in the developed world have a skewed sense of the sources of creativity. And of course those who will need the biggest megaphones have the least access to the marketing machinery they will need to compete.
Lea Shaver wrote in her review that “MAD MEN is the perfect antonym for the better world that Professor Sunder’s work envisions. Marketing executives, practically dripping in 1960’s-era white male privilege, strive to endow branded commodities with hegemonic symbolism. The protagonists of this drama view their fellow Americans not as citizens to be democratically engaged or individuals creating their own lives, but as minds to be manipulated. To achieve that goal, they fund the creation of one-way cultural media, which offers its audience no opportunity to challenge the message that the most important way of making meaning in the world is through passive consumption.” The irony of Sunder’s book is that, having shown so well the problems with one-way cultural media, some (many?) of her solutions would rely on the very same mechanisms of one-way cultural media.
September 12, 2012 at 9:37 pm
Posted in: Culture, Cyberlaw, Innovation, Intellectual Property, International & Comparative Law, Symposium (From Goods to a Good Life)
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The Parenting Debate
posted by Leora Eisenstadt
Although I am somewhat hesitant to add another voice to an already loud debate about the work-family conflict that has arisen again in the last month or so, I am finding it difficult to stay quiet. As the working mother of a 3 ½ year old and a 3 month old, this is the legal and policy issue that affects me most these days.
When Anne-Marie Slaughter wrote her piece in the Atlantic, arguing that women in top government and business positions are leaving because of the difficulty of combining work and family, she predictably drew loud praise and equally loud critique (including an interesting post by Sherilyn Ifill, linked to from Concurring Opinions). But then, Marissa Mayer, Yahoo’s newly appointed CEO, added her voice to the debate (perhaps unwittingly) when she told Fortune that she was pregnant and that her maternity leave would be “a few weeks long, and I’ll work throughout it.” That comment brought a new onslaught of responses including criticism that she was doing a disservice to all working women whose employers would now expect them to “work throughout” their maternity leaves.
Whether this is a male/female issue or merely a parenting issue that cuts across gender, what is clear from the numerous opinions out there is that one size does not fit all. In fact, if I am any example, one approach might not even work throughout one person’s working/parenting life. As a first time mom and associate at a law firm, I took a 6½ month leave, made possible by a hefty pay check and 12 weeks of paid leave. Now that it’s my second time around and I am transitioning to academia, I chose to work from home through the first few months after my son was born and (mostly) don’t regret it.
The notion of privileging women or parents by building in options for them is not new and is, in fact, the dominant approach in many European countries and in Israel (which I have written about in the past). But it has not been the American way. Might we be changing? In my prior article, I wrote about the emergence of the Israeli approach as a function of the society’s overall collectivist culture and a national interest in promoting reproduction and the parent-child bond. I am wondering whether there is a chance that Americans could recognize this too.
Of course, that would not be the end of the debate. What would the privileging of women or parents mean for equality? If women (by law) gain options that men don’t have, do they come out equal, better, or worse? For example, if we mandate paid maternity leave as some countries do, will employers stop hiring fertile age women out of fear that they will exercise this option and be less productive than men? What if the option is non-gendered and open to all parents? Will men exercise the option or continue to feel pressure to return to work immediately after a child is born? Will women? While the answers to these questions remain unclear, one thing is obvious—this is not a problem that parents can solve on their own. Beyond the debate in the media, it is high time for a serious debate in government about remedies (beyond the Family Medical Leave Act) for working parents who are having trouble being good at both jobs.
August 9, 2012 at 1:09 pm
Tags: feminism, gender, maternity leave, parenting, sex discrimination
Posted in: Employment Law, Feminism and Gender, International & Comparative Law, Uncategorized
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There is no new thing under the sun
posted by Omer Tene
Photo: Like it’s namesake, the European Data Protection Directive (“DPD”), this Mercedes is old, German-designed, clunky and noisy – yet effective. [Photo: Omer Tene]
Old habits die hard. Policymakers on both sides of the Atlantic are engaged in a Herculean effort to reform their respective privacy frameworks. While progress has been and will continue to be made for the next year or so, there is cause for concern that at the end of the day, in the words of the prophet, “there is no new thing under the sun” (Ecclesiastes 1:9).
The United States: Self Regulation
The United States legal framework has traditionally been a quiltwork of legislative patches covering specific sectors, such as health, financial, and children’s data. Significantly, information about individuals’ shopping habits and, more importantly, online and mobile browsing, location and social activities, has remained largely unregulated (see overview in my article with Jules Polonetsky, To Track or “Do Not Track”: Advancing Transparency and Individual Control in Online Behavioral Advertising). While increasingly crafty and proactive in its role as a privacy enforcer, the FTC has had to rely on the slimmest of legislative mandates, Section 5 of the FTC Act, which prohibits ‘‘unfair or deceptive acts or practices”.
To be sure, the FTC has had impressive achievements; reaching consent decrees with Google and Facebook, both of which include 20-year privacy audits; launching a serious discussion of a “do-not-track” mechanism; establishing a global network of enforcement agencies; and more. However, there is a limit as to the mileage that the FTC can squeeze out of its opaque legislative mandate. Protecting consumers against “deceptive acts or practices” does not amount to protecting privacy: companies remain at liberty to explicitly state they will do anything and everything with individuals’ data (and thus do not “deceive” anyone when they act on their promise). And prohibiting ‘‘unfair acts or practices” is as vague a legal standard as can be; in fact, in some legal systems it might be considered anathema to fundamental principles of jurisprudence (nullum crimen sine lege). While some have heralded an emerging “common law of FTC consent decrees”, such “common law” leaves much to be desired as it is based on non-transparent negotiations behind closed doors, resulting in short, terse orders.
This is why legislating the fundamental privacy principles, better known as the FIPPs (fair information practice principles), remains crucial. Without them, the FTC cannot do much more than enforce promises made in corporate privacy policies, which are largely acknowledged to be vacuous. Indeed, in its March 2012 “blueprint” for privacy protection, the White House called for legislation codifying the FIPPs (referred to by the White House as a “consumer privacy bill of rights”). Yet Washington insiders warn that the prospects of the FIPPs becoming law are slim, not only in an election year, but also after the elections, without major personnel changes in Congress.
July 30, 2012 at 7:47 pm
Tags: co-regulation, data protection, multistakeholder, Privacy, right to be forgotten, self regulation, w3c
Posted in: Cyber Civil Rights, Cyberlaw, International & Comparative Law, Privacy, Privacy (Consumer Privacy), Privacy (Electronic Surveillance), Uncategorized
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UCLA Law Review Vol. 59, Discourse
posted by UCLA Law Review
Volume 59, Discourse
Discourse
| To Show Virtue Her Own Feature | Pavel Wonsowicz | 162 |
| The Pseudo-Elimination of Best Mode: Worst Possible Choice? | Lee Petherbridge & Jason Rantanen | 170 |
July 10, 2012 at 9:38 am
Posted in: Intellectual Property, International & Comparative Law, Law Rev (UCLA), Teaching
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Illinois Law Review, Issue 2012:2 (March 2012)
posted by University of Illinois Law Review
University of Illinois Law Review, Issue 2012:2
Please see our website for past issues
Articles
Homogeneous Rules for Heterogeneous Families: The Standardization of Family Law When There is no Standard Family – Katharine K. Baker (PDF)
Legal Sources of Residential Lock-Ins: Why French Households Move Half as Often as U.S. Household – Robert C. Ellickson (PDF)
Sealand, HavenCo, and the Rule of Law – James Grimmelmann (PDF)
David C. Baum Memorial Lecture on Civil Rights and Civil Liberties
Citizens United and Conservative Judicial Activism – Geoffrey R. Stone (PDF)
Notes
Bargaining for Salvation: How Alternative Auditor Liability Regimes Can Save the Capital Markets – Hassen T. Al-Shawaf (PDF)
Analysis Paralysis: Rethinking the Courts’ Role in Evaluating EIS Reasonable Alternatives – J. Matthew Haws (PDF)
The Real Social Network: How Jurors’ Use of Social Media and Smart Phones Affects a Defendant’s Sixth Amendment Rights – Marcy Zora (PDF)
March 26, 2012 at 4:37 pm
Posted in: Civil Rights, Constitutional Law, Family Law, First Amendment, International & Comparative Law, Law Rev (Illinois), Supreme Court, Uncategorized
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Sidestepping corporate liability, Supreme Court shifts focus of Kiobel case to extraterritoriality
posted by Marco Simons
(Marco Simons is Legal Director of EarthRights International. He is a graduate of Yale Law School, where he received the Robert L. Bernstein Fellowship in International Human Rights.)
Last week I blogged about the Kiobel v. Royal Dutch Petroleum case, in which the Supreme Court was considering whether corporations could be sued for complicity in serious human rights abuses under the Alien Tort Statute (ATS). I noted that some scholars and amici were urging the Supreme Court to decide the case on other grounds; namely, that the ATS was limited to suits against U.S. citizens.
On Monday the Supreme Court issued a rare reargument order in Kiobel, directing the parties to re-brief and argue next Term the question of “[w]hether and under what circumstances” the ATS allows suits for abuses “occurring within the territory of a sovereign other than the United States.”
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March 7, 2012 at 10:09 am
Posted in: Constitutional Law, International & Comparative Law, Tort Law
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Wrongful Auction of Stolen Chinese Cannon
posted by Lawrence Cunningham
The cannon pictured was stolen from the Chinese by Webb Hayes, son of president Rutherford B. Hayes, after the notorious Boxer Rebellion of 1899-1901 fomented by foreign armies. Other Chinese property Hayes stole is displayed at the Hayes presidential museum in Cleveland and at West Point’s museum. The cannon will soon go on sale at auction in New York, says the New York Times, at the Cowan Auction house.
All those involved in sustaining the original theft should be ashamed, including the current “owner” and the auction house. The property should be returned to China. The current “owner” of the cannon paid $150,000 for it last year, fixed it up, and now proposes to fetch three to four times that.
It seems offensive, yet also common, for Westerners to deny that they hold stolen goods that rightfully should be returned to China. On the rare occasions when Westerners have returned such property, Chinese respond with an outpouring of gratitude.
The first such example appears to have occurred about two decades ago, thanks to senior executives of American International Group (AIG). In 1991, a senior executive of AIG’s Asian life insurance business heard that a Paris gallery came into possession of ten imposing bronze window panels. Initial research suggested these exquisite objects—each towering ten feet and emblazoned with iconic serpents and dragons—may have been part of the Baoyun Pavilion at the Summer Palace in Beijing, looted by foreign armies during the Boxer Rebellion.
The executive reported this to AIG’s chief executive, Hank Greenberg, who was also chairman of the Starr Foundation, created by his predecessor, the legendary insurance pioneer, Corneilus Vander Starr, who had opened American insurance operations in China in 1919. Greenberg, who had been running AIG’s insurance operations in China since 1975, and had many friends in the country, instantly appreciated the significance of this discovery. He knew that the Pavilion had been closed ever since, as the loss of those windows amounted to a loss of face for the Chinese people.
Experts confirmed that the window panels were indeed those missing from the Pavilion. The treasured national assets had been stolen by a French army officer amid the period’s pillaging. The Starr Foundation bought the iconic window frames from the French gallery for $510,000 and arranged for repatriation into China.
A national rededication service followed in December 1993, broadcast throughout the country on television. Millions of grateful Chinese watched tearfully during the ceremony. It was the first time that any foreign organization had returned missing national Chinese artifacts to the homeland. It was the right thing to do.
It would be the right thing to do with this cannon as well, along with the items in the Hayes presidential museum that the president’s son stole, the items at West Point, and anything else Westerners stole from the Chinese during the Boxer Rebellion.
February 24, 2012 at 5:15 pm
Posted in: Culture, Current Events, International & Comparative Law
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Physical Punishment and Parental Rights
posted by Elizabeth A. Wilson
A recent study published online in the Canadian Medical Association Journal brings up the unresolved debate about parental rights and physical punishment of children. This study lends support to an argument I made some years ago in an article called “Suing for Lost Childhood” about the use of the delayed discovery rule in child sexual abuse cases. In my article, I argued that physical abuse of children and neglect can have impacts on children’s development that are as destructive as sexual abuse, but for a variety of reasons we are as a culture more attuned to issues related to children and sexuality. (I later called the analysis used in that article “narrative genealogy” as it traces the cultural origins and migrations of stories that ultimately had shaping effects on legal decisions.)
The CMAJ study reviews 20 years of published research on physical punishment of children and concludes that no evidence exists of positive outcomes. Physical punishment is correlated with aggression and antisocial behavior, cognitive impairment and developmental problems, as well as depression, spousal abuse, and substance abuse. Co-author Joan Durrant says, “”There are no studies that show any long term positive outcomes from physical punishment.” Summaries of the study say that the study refutes the frequent argument that aggression comes before corporal punishment and not vice versa. (I’ll get to the viral video of the dad shooting his daughter’s computer with a .45).
February 11, 2012 at 11:29 pm
Posted in: Civil Rights, International & Comparative Law, Tort Law, Uncategorized
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