Posts Tagged ‘law’
“Patriotism is, fundamentally, a conviction that a particular country is the best in the world because you were born in it”*…
The proliferation of nations around the world in the 20th century was largely a result of decolonialization; the central mechanism that arose to allow dialogue and coordination was the U.N. Kal Raustiala suggests that the 21st century and the challenges that it presents need a different understanding of statehood and a different approach to international cooperation…
The global expansion of self-determination over the past century was an essential step in human freedom that reversed centuries of racial domination, liberated hundreds of millions from European colonial control and yielded dozens of newly sovereign states. This proliferation of states nevertheless exacerbated a core weakness of the international order: the ability of humankind to solve the most dangerous challenges of the 21st century. From climate change to pandemics, many of the most pressing problems seem to require not more (and more fragmented) autonomy, but rather more collaboration.
How to square the circle of meaningful self-determination with more effective collaboration is thus a question of the utmost importance. Short of a still-undefined form of planetary politics or a radically revamped United Nations, Europe may provide the most compelling model for the future — one that properly respects self-determination but embeds it in an entity large enough to tackle the truly global challenges of today.
Meanwhile, the norm of self-determination faces a more direct attack, one that looks not forward to a post-Westphalian future but backward to an imperial past. Vladimir Putin’s war against Ukraine’s independence is an attempted reversal of self-determination, a disturbing shift after decades of movement in the other direction. It also directly challenges a largely unspoken notion: that peoples should not only enjoy self-determination, but also self-definition.
Russia is hardly alone in manipulating self-determination for its own ends. China oppresses minority peoples in Xinjiang and Tibet. The United States contains over 500 Indigenous nations as well as islands, such as Puerto Rico and Hawaii, with strong independence movements. Scotland seeks to break free of the United Kingdom; France faces Corsican and Basque nationalism.
Our world of 200 or so independent nations could easily be broken up into 300, 400, 500 sovereign states. (Indeed, the median state in the world today is already smaller than Los Angeles County in population.) True respect for the principle of self-determination might demand — or at least permit — such an outcome. Whether the world can function effectively is another matter…
…
Europe may provide the most compelling model for a future that respects self-determination but embeds it in an entity large enough to tackle the truly global challenges of today…
Who is “a people”? Which peoples should get a state and get to govern themselves? Who draws the borders? How do we manage collective threats? Eminently worth reading in full: “Who Gets A Nation?” from @NoemaMag.
* George Bernard Shaw
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As we contemplate citizenship, we might recall that it was on this date in 1946 that U.N. General Assembly passed its first resolution, establishing the United Nations Atomic Energy Commission (UNAEC), “to deal with the problems raised by the discovery of atomic energy.” It languished, lapsing into inactivity by 1949, and was officially disbanded in 1952.
Still, the spread of “atomic technology”– and the proliferation of nuclear arms– continued apace… leading to the establishment in 1957 of the International Atomic Energy Agency (IAEA), an intergovernmental organization that seeks to promote the peaceful use of nuclear energy and to inhibit its use for any military purpose, including nuclear weapons. For example, pursuant to Treaty on the Non-Proliferation of Nuclear Weapons (signed in 1968), all non-nuclear powers are required to negotiate a safeguards agreement with the IAEA, which is given the authority to monitor nuclear programs and to inspect nuclear facilities.
“Your silence will not protect you”*…
Characterized today by the noise of banging, buzzers, and the cries of inmates, solitary confinement was originally developed from Quaker ideas about the redemptive power of silence, envisioned as a humane alternative to the punitive violence of late-18th century jails. Revisiting Pennsylvania’s Eastern State Penitentiary, Jane Brox discovers the spiritual origins and reformist ambitions of solitary’s early advocates, and sees their supposedly progressive desires come to ruin by the 20th century…
On any given day in the United States, of the more than one million men and women incarcerated in jails and prisons, over 120,000 are locked in solitary confinement. None have been sentenced by a court to their isolation. They are serving a punishment within punishment, having been placed in solitary by prison officials for a variety of reasons: violent crime, petty theft, speaking out, gang involvement, political activism. Some are in protective custody; others have mental health issues and are considered too difficult to control. A disproportionate percentage are people of color. Their sentence might last weeks or months and is subject to extension. More than a few spend years, even decades in cells whose dimensions are commonly compared to the size of a parking space, but which are often smaller — six-by-nine feet, or eight-by-ten. Reading material is sparse. Confined prisoners don’t participate in educational or rehabilitation programs. Other than meals — which are often more meager than those provided to the general prison population — and an hour of exercise a day, little exists to distract them from the heaviness of time, and nothing at all suggests that the historic roots of such punishment can be traced to the concept of redemption.
The idea of the solitary cell as an integral part of the American prison system arose during the Early Republic, the specific vision of Philadelphia physician and Founding Father Benjamin Rush, who advocated for time in solitude and silence — the active, searching silence of Quakerism — as an alternative to the bodily pain, injury, and humiliation of public hangings and whippings. He saw it as a means not only of punishment but of reformation for housebreakers, forgers, highway robbers, horse thieves, and even murderers, and his vision of justice eventually led to the construction of the world’s first penitentiary, Eastern State, designed by architect John Haviland, and raised on the grounds of an old cherry orchard three miles outside of Philadelphia’s city limits.
When Cherry Hill — as it was sometimes called — admitted its first prisoners in 1829, it stood in stark contrast to traditional jails, where debtors and those awaiting trial were housed in filthy, noisy, and disorderly common rooms. In the penitentiary, not only were the confined to remain in their individual cells for the duration of their sentence, according to the board of inspectors for Philadelphia’s prisons, there was to be “such an entire seclusion of convicts from society and from one another, as that during the period of their confinement, no one shall see or hear, or be seen or heard by any human being, except the jailer, the inspectors, or such other persons, as for highly urgent reasons may be permitted to enter the walls of the prison.”…
How a Quaker’s good intentions went awry: “The Silent Treatment- Solitary Confinement’s Unlikely Origins,” in @PublicDomainRev.
* Audre Lorde
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As we ponder penitentiaries, we might send reformist birthday greetings to Roscoe Pound; he was born on this date in 1870. A lawyer and law school professor and Dean, he was one of the most cited legal scholars of the 20th century.
While serving as Dean of Harvard Law School, Pound founded the movement for “sociological jurisprudence” and was one of the early leaders of the movement for American Legal Realism, which argued for a more pragmatic and public-interested interpretation of law and a focus on how the legal process actually occurred, as opposed to (in his view) the arid legal formalism which prevailed in American jurisprudence at the time. In Pound’s view, these jurisprudential movements advocated “the adjustment of principles and doctrines to the human conditions they are to govern rather than to assumed first principles.” While Pound was dean, law school registration almost doubled, but his standards were so rigorous that one-third of those matriculated did not receive degrees. Among those that did were many of the great political innovators of the New Deal years.
Pound also had a PhD in botany, and before turning to the law, served as director of the Nebraska state botanical survey (1892-1903), during which time he discovered a rare fungus, subsequently named Roscopoundia.
“Our new Constitution is now established, everything seems to promise it will be durable; but, in this world, nothing is certain except death and taxes.”*…
Franklin’s caution was, of course, premonitory. David W. Blight explains why in his review of James Oakes‘ new book, The Crooked Path to Abolition: Abraham Lincoln and the Antislavery Constitution…
Historians can and do change their minds about interpretations of events and the uses of evidence. We may be dead certain, or even mildly sure, about facts and the stories we tell about them, but our craft requires us to remain open to new persuasions, new truths. James Oakes used to believe that the United States Constitution was essentially proslavery in its foundations, and that any attempt to breathe antislavery meaning into it was strained or rhetorical and not textually supported. But no more. In his remarkable and challenging book The Crooked Path to Abolition, he makes the case that there were effectively two constitutions written in Philadelphia that summer of 1787, one proslavery and one antislavery, which would be in conflict with each other for more than the next fourscore years.
Oakes, a distinguished professor of history at the CUNY Graduate Center, is not the only historian to have changed his view on this matter. In my first book, in 1989, I treated Frederick Douglass’s development of an antislavery interpretation of the Constitution as a slowly evolving perspective on his road to becoming a pragmatic political abolitionist and as a form of wish fulfillment in the absence of alternatives. I called his antislavery constitutionalism “dubious”—a search for political and moral ground on which he could stand to avoid embracing violent revolution by the 1850s. But I have come to see him as a deeply committed political thinker who argued his way, through what he called “careful study,” using legal and moral logic, to a vision of an antislavery Constitution. Guided by the natural rights tradition, Douglass found the core meaning of the American crisis. “Liberty and Slavery—opposite as Heaven and Hell,” he wrote in 1850, “are both in the Constitution.” What divided the nation was a Constitution “at war with itself.”
It has long been understood that without the compromises that were struck to bolster the interests of the slave states, there might have been no constitution achieved in 1787, and the thirteen original states might have careened off into regional coalitions at best…
he original Constitution reeked of complicity with the peculiar institution. It contained prominent proslavery features: a fugitive slave clause requiring retrieval of escaped bondspeople (although ambiguous about adjudication), the provision that the end of the foreign slave trade would be postponed until at least 1808 (both sides claimed victory in this matter), and the numerous elements that embedded federalism deeply into the document, enabling the doctrine of states’ rights to flourish. Above all, the three-fifths clause counting enslaved people in such a robust fraction for the purpose of representation in Congress and the Electoral College, which enhanced significantly the slave states’ power in the legislative branch and presidential elections, explicitly gave the United States, it seemed, a permanent proslavery future.
Proslavery advocates made the Fifth Amendment’s guaranteed protection of property ownership their “linchpin,” Oakes shows, in one crisis after another in the antebellum era, including the dangerous controversy around the admission of Missouri as a state in 1820. The Fugitive Slave Act of 1850 drew its power, at least slaveholding southerners believed, from original, if vague, constitutional guarantees of the return of escapees. But so did the passionate resistance to that hated provision in the North because of the Constitution’s equally explicit guarantee in the Fifth Amendment of due process to “all persons.”
Southerners would, of course, claim that the Constitution permitted their secession in 1861, following the argument of John C. Calhoun of South Carolina, who maintained that the United States had been from its inception a contractual arrangement balanced between slave- and free-state interests. And they confidently held that, according to the Tenth Amendment, all powers not delegated to the federal government were reserved to the states. The proslavery Constitution had previously sustained slaveholders’ faith in their power within the Union, and in “King Cotton” as economic leverage, down to the late 1850s, despite their increasing minority status.
On the other hand, Oakes identifies several parts of the Constitution as inherently antislavery. The preamble’s call for a “more perfect union” inspired abolitionists, who also pointed to section 4 of article 4 and its “guarantee to every state in this Union a republican form of government.” Section 2 of article 4 buttressed a growing antebellum claim of Black citizenship, rooted in the privileges and immunities clause. Antislavery constitutionalists also found support for their principles in the Fourth Amendment: the rights of Americans to be “secure in their persons…against unreasonable searches and seizures” offered language to protect fugitive slaves and promote human rights.
The Fifth Amendment served both sides, but abolitionists drew increasingly on its stricture that no “person” shall be “deprived of life, liberty…without due process of law.” They avoided the word “property,” which followed “liberty” in the text, not just out of convenience but because of their long-standing legal and moral rejection of the idea of “property in man.”…
The combination of all these clauses and principles allowed some abolitionists to declare the Constitution a bulwark for human equality and not merely, as Oakes says, a “hypocritical fantasy” crushed by white supremacy and a larger history. Some modern readers who are now conditioned to see the United States only as a progenitor of racial inequality may, misguidedly, find this claim on behalf of abolitionists a bridge too far...
[There follows an illuminating recounting of the arguments between the two sides over the nexts several decades, then of Lincoln’s reading and the Civil War…]
We still have two Constitutions on many issues: the nature of federalism, voting rights, election laws, the right to bear arms, and much more. We have a majority on the Supreme Court determined to return every power possible to the states, reverting the “Union” to many decades ago when it was a collection of battling legal sovereigns with common borders. The historical template for these and other future debates may always be the profound failures and triumphs of antislavery constitutionalism’s struggle against proslavery constitutionalism in the 1850s and 1860s. The heat in our public history wars today needs the light of this kind of scholarship, however difficult it is to sustain faith in truth, persuasion, and historical consciousness itself…
Too timely: “The Two Constitutions,” @davidwblight1 in @nybooks.
An apposite piece on the several ways that American’s “read” the founder of modern economics: “America’s Adam Smith” from Branko Milanovic (@BrankoMilan).
* Benjamin Franklin, in a November, 1789 letter to French scientist Jean-Baptiste Le Roy
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As we choose a side, we might recall that it was on this date in 1967 that President Lyndon B. Johnson nominated Solicitor-General Thurgood Marshall to become the first black justice on the U.S. Supreme Court. A storied civil rights attorney and jurist (Federal Court of Appeals), Marshall served on the highest bench from 1967 until his retirement in 1991.
“Those who live by the sea can hardly form a single thought of which the sea would not be part”*…
If only. All of us on this interconnected planet are deeply beholden to our oceans; but all too few of us, all too infrequently, pay them heed. Surabhi Ranganathan explores one too-seldom considered dimension in which we need to address that deficit: the “Law of the Sea.” As she explains, the growing international competition for reclamation, navigation, cabling, and undersea resource rights, against the backdrop of climate change, demand a radically-revised approach…
I write this essay in an office in Singapore, where I have just learned an arresting fact. The legal historians Antony Anghie and Kevin Tan have informed me that in the course of my arrival, via Terminal 3 of Singapore’s Changi Airport, I must have crossed – on foot – the probable spot where, more than 400 years ago, the Dutch East India Company (VOC) Captain Jacob van Heemskerk captured the Santa Catarina, a Portuguese ship. This makes sense: in Martine van Ittersum’s rich description of the incident, she notes that it took place at the entrance of the Singapore Straits. Heemskerk, the story goes, made a wild dash to Johor from Tioman Island upon receiving news that two Portuguese carracks laden with spices, silks, and porcelain, would be moving through the Straits. Having missed the first, he awoke on the morning of February 25, 1603, to find the second, the Catarina, right before his eyes. He swiftly captured the ship just off Singapore’s eastern shoals. In the time since that event, projects of reclamation have increased Singapore’s total land area by 25 percent, and Changi airport occupies one such reclaimed part, sitting where the shoals used to be.
The Catarina’s capture occupies an important place in the history of international law. The incident was part of an imperial struggle between European states over access to trade with the East Indies. Such trade promised fabulous wealth: the goods recovered from this event alone sold for over three million guilders in the markets of Amsterdam, an amount that was roughly double the capital of the English East India Company. Portugal was outraged by the loss, while the VOC was keen to defend its actions. On retainer from the company, the jurist Hugo Grotius—then just in his early twenties!—wrote a brief that is now regarded as a foundational text, Mare Liberum, or The Free Sea.
Grotius argued that the sea was entirely unlike land. Land, being fixed, cultivable and, most importantly, exhausted by its use, could be regarded as divisible, subject to public and private ownership, and demarcated by national boundaries. The sea was fluid and constantly in movement; it was indivisible, unoccupiable, inexhaustible, indeed unalterable for better or worse via human activity. As such, it was irreducible to private ownership or state sovereignty. That being the case, it was Portugal that had acted wrongfully in claiming exclusive rights of maritime navigation and commerce with the Indies.
The Grotian imaginary of the sea persisted for centuries. The principle of the freedom of the seas came to define oceanic activities from navigation to fishing. Indeed, modern international law continues to express a principle of maritime freedom, though it is a far narrower form of freedom than Grotius initially claimed.
Today, international treaties, states, institutions, corporations, and courts all recognize that the ocean is divisible and, in parts even appropriable, in the same way as land. Oceanic resources are exhaustible and can also be enhanced by human endeavor: cultivation through new methods like aquaculture is increasingly seen as essential to assure the global supply of fish. In the decades since the Second World War, a dense network of legal rules on access, use-rights, and responsibilities have developed to regulate the crowding conglomerations of interests and territorial claims upon the oceans.
Moreover, international law has been increasingly called upon not only to articulate the ways land and sea resemble each other, but also to address the mutability of those very categories. Thanks to legal and technological innovations, what was once sea might become land: the reclamation projects that have accounted for the site of Changi Airport are but one example. In the other direction, rising sea levels and intensifying critical weather events can quickly turn what was once land into sea. Down in the deep, the binary between land and sea is confounded by formations which appear as neither fully one nor quite the other.
The shifting relation between land and sea reflects the scale of human impact on the environment. This unstable relation forces us to confront the consequences of climate change, as the fixed certainties — soil, resources, infrastructure – that have for so long governed our imagination of land begin to fall apart. As a result, we must contend with new expectations of, and investments in, the sea…
Down in the deep, the legal distinction between land and sea no longer holds– and that’s a problem: “The Law of the Sea,” from @SurabhiRanganat in @thedialmag.
* Hermann Broch
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As we go deep, we might recall that it was on this date in 1911 that RMS Titanic was launched from the boatyard in Belfast in which it was built, the largest passenger ship of its day. A state-of-the-art steamship, it set sail from Southampton on its maiden voyage on march 10th of the following year, bound for New York City. Four days later, after calls at Cherbourg in France and Queenstown (now Cobh) in Ireland, the “unsinkable” Titanic collided with the iceberg that sent it under in the North Atlantic, 375 miles south of Newfoundland.
When the location of the wreck of Titanic was discovered in 1985, there was fear that extant Admiralty law would allow for the “looting” of what its discoverer believed should be “a monument.” In an example that the Law of the Sea can in fact be revised, the RMS Titanic Maritime Memorial Act was passed in 1986. (After the Act’s passing, the Department of State proposed an agreement with the United Kingdom, Canada and France (as well as other interested countries) to enact the policies from the 1986 Act on an international scale… the U.K. ratified it briskly, but the U.S. didn’t get around to it until 2019. France and Canada are pending. In the meantime, the wreck of Titanic has been revisited on numerous occasions by explorers, scientists, filmmakers, tourists and salvagers, who have recovered thousands of items from the debris field for conservation, public display… and sale.
“The opposite of knowledge is not ignorance, but deceit and fraud”*…
In follow-on to our last look at corporate fraud, a provocative piece by Byrne Hobart…
This paper has been getting some attention lately for its eye-catching estimates: 11% of publicly traded companies are committing securities fraud every year, with an annual cost of over $700bn…
[There follows an illuminating discussion of lessons that can be drawn for the follow-on to Arthur Andersen’s collapse after the implosion of Enron, the rules/regulations developed then to prevent similar public company frauds, and a consideration of whether corporate fraud has waned– at least among publicly-traded companies– and is perhaps a little less wide-spread than the paper argues…]
But since fraud is a human problem, and not purely a matter of better accounting standards, it’s not likely to have just gone away. But if the rate of accounting problems among big publicly-traded companies is lower than the 11% number cited in the paper, the question isn’t “why did it disappear?” but rather “where did it go?” And we can take our list of trends against fraud and invert them:
• Sarbanes-Oxley does apply to private companies, but only on the penalty side, not the disclosure side. But accounting frauds in private companies are often less visible; many investments go to zero, anyway, and it’s less embarrassing for everyone involved not to say why.
• There are no short-sellers in private markets. There have been efforts here, but they don’t work out because the market doesn’t clear (“everyone wanted to short Theranos, Dropbox and WeWork”). The closest you can get to shorting is to pass on a round and then brag about it later. Big deal: I didn’t invest in FTX, either.
• There’s less data available on private companies, though the rise of alternative data tools means it’s easier to get decent proxies.
• Startups are not expected to return capital. It’s a bad sign if they do. They’re often valued either based on strategic considerations or starting with a multiple of sales—a dollar of sales is much easier to fake than a dollar of earnings or cash flow, so the incentive to do so is strong.
• The idea market in startups is liquid when it comes to successes, but it would be pretty tacky for a VC to write a long blog post explaining why they passed on a live deal. (That memo may exist internally, but to the extent that it’s shared it’s in the form of a quick summary over Twitter DM or Signal.)
JPMorgan Chase’s writedown of their fintech acquisition Frank is a great case study in all of these forces. The NYT has a good story digging into the details: Frank’s founder is a serial exaggerator whose self-promotion veered into fraud (once again, if the rate of continuous improvement in public perception to be maintained exceeds what the fundamentals can deliver, compound interest works its ruthless magic). The company was valued at a high multiple of what turned out to be a flexible metric, total email addresses captured. And there were alternative datasets that could have pointed to problems: given the likely number of student aid applicants in the US, Frank’s numbers implied that it had reached near-dominant market share in the category with little marketing. Meanwhile, its monthly site traffic was not enough to have acquired that sizable a customer list over Frank’s entire existence. So it could have been caught, if the buyer had been looking for fraud. But one paradox of frauds and cheats in general is that lying is less than half the work—most of the effort is in appearing not to need to lie. The more impressive a company looks, the more embarrassing the basic due diligence questions are.
A down market and a series of high-profile failures might give private markets the same kind of natural experiment that Arthur Andersen’s failure did for public markets. Due diligence checklists will get longer and more thorough, and new funding rounds will feel more like a cross-examination and less like a party. One reason for a high base rate of fraud is that at least some of it stems from inattention rather than malice—the Arthur Andersen study finds that most of the frauds were fairly minor, and could be more the result of poor internal metrics than of intent to mislead. But either way, standards will get higher, and private companies will need to step up their efforts accordingly…
Has the primary locus of corporate fraud moved from public to private companies? “Where Fraud Lives and Why,” from @ByrneHobart.
[Image above: source]
* Jean Baudrillard
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As we do due diligence, we might recall that it was on this date in 2016 that the Centers for Medicare and Medicaid Services (CMS) sent a letter to Theranos after an inspection of its Newark, California, lab. The investigation, which took place in the fall of 2015, had found that the facility did not “comply with certificate requirements and performance standards” and caused “immediate jeopardy to patient health and safety.” This followed on three exposes on Theranos in the Wall Street Journal (in October [here and here] and December of 2015) and a critical FDA report. Things unraveled from there: in March, 2018, Thearnos, CEO Elizabeth Holmes, and President Sunny Balwani were charged by the FCC with fraud. Three month later, a federal grand jury indicted both Holmes and Balwani on two counts of conspiracy and nine counts of wire fraud, finding that the pair had “engaged in a multi-million dollar scheme to defraud investors, and a separate scheme to defraud doctors and patients.” Theranos closed in 2018. Holmes was convicted and sentenced to 11 years in prison for her crimes (a sentence she is appealing); Balwani, to 13 years.
Theranos was a private company, funded by investors including Henry Kissinger, Betsy DeVos, Carlos Slim, and Rupert Murdoch.
Elizabeth Holmes found guilty (source)
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