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At long last – despite the attempts at sabotage by and over the protests of the CIA, and notwithstanding the dilatory efforts of the State Department – the Senate Select Committee on Intelligence has finally issued the executive summary of its 6,300-page report on the CIA’s detention and interrogation program. We should celebrate its publication as a genuine victory for opponents of torture. We should thank Senator Dianne Feinstein (whom some of us have been known to call “the senator from the National Security Agency”) for her courage in making it happen.
We now know something about the Senate report, but many folks may not have heard about the other torture report, the one that came out a couple of weeks ago, and was barely mentioned in the US media. In some ways, this one is even more damning. For one thing, it comes from the international body responsible for overseeing compliance with the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment – the UN Committee Against Torture. For another, unlike the Senate report, the UN report does not treat US torture as something practiced by a single agency, or that ended with the Bush administration. The UN Committee Against Torture reports on US practices that continue to this day.
Here are some key points:
The United States still refuses to pass a law making torture a federal crime. It also refuses to withdraw some of the “reservations” it put in place when it signed the Convention. These include the insistence that only treatment resulting in “prolonged mental harm,” counts as the kind of severe mental suffering outlawed in the Convention.
Many high civilian officials and some military personnel have not been prosecuted for acts of torture they are alleged to have committed. It would be nice, too, says the Committee, if the United States were to join the International Criminal Court, where other torturers have already been successfully tried. If we can’t prosecute them at home, maybe the international community can do it.
The remaining 142 detainees at Guantánamo must be released or tried in civilian courts, and the prison there must be shut down.
Evidence of US torture must be declassified, especially the torture of anyone still being held at Guantánamo.
While the US Army Field Manual on Human Intelligence Collector Operations prohibits many forms of torture, a classified “annex” still permits sleep deprivation and sensory deprivation. These are both forms of cruel treatment which must end.
People held in US jails and prisons must be protected from long-term solitary confinement and rape. “Supermax” facilities and “Secure Housing Units,” where inmates spend years and even decades in complete isolation must be shut down. As many as 80,000 prisoners are believed to be in solitary confinement in US prisons today – a form of treatment we now understand can cause lasting psychosis in as short a time as two weeks.
The United States should end the death penalty, or at the very least declare a moratorium until it can find a quick and painless method of execution.
The United States must address out-of-control police brutality, especially “against persons belonging to certain racial and ethnic groups, immigrants and LGBTI individuals.” This finding is especially poignant in a period when we have just witnessed the failure to indict two white policemen who killed unarmed Black men: Michael Brown in Ferguson, Missouri, and Eric Garner in New York City. Like many who have been demonstrating during the last few weeks against racially selective police violence, the Committee was also concerned about “racial profiling by police and immigration offices and growing militarization of policing activities.”
Why should an international body focused specifically on torture care about an apparently broader issue like police behavior? In fact, torture and race- or identity-based police brutality are intimately linked by the reality that lies at the foundation of institutionalized state torture.
Every nation that uses torture must first identify one or more groups of people who are torture’s “legitimate” targets. They are legitimate targets because in the minds of the torturers and of the society that gives torture a home, these people are not entirely human. (In fact, the Chilean secret police called the people they tortured “humanoids.”) Instead, groups singled out for torture are a uniquely degraded and dangerous threat to the body politic, and therefore anything “we” must do to protect ourselves becomes licit. In the United States, with lots of encouragement from the news and entertainment media, many white people believe that African American men represent this kind of unique threat. The logic that allows police to kill unarmed Black men with impunity is not all that different from the logic that produces pogroms or underlies drone assassination programs in far-off places, or that makes it impossible to prosecute our own torturers.
At 15 pages, the whole UN report is certainly a quicker read than the Senate committee’s 500-page “summary.” And it’s a good reminder that, whatever President Obama might wish, this is not the time to close the book on torture. It’s time to re-open the discussion, to hold the torturers accountable, and to bring a real end to US torture.
On the subject of competition law inspections and similar procedures, tensions have been building between the European Court of Human Rights (ECtHR) and the Court of Justice of the European Union (EUCJ). The latest case-law appears like a step in the direction of reconciling the two. One of the crucial points that must be resolved in the future is the lawfulness of the authorities’ extensive digital evidence gathering during on-site inspections. Such searches are nowadays a matter of routine, although the law seems to be lagging behind. Not only must the lawfulness of those measures be resolved, but also the matter of procedure. Companies subject to inspections have gone to court repeatedly in order to obtain up-front judicial control of specific measures such as copying and mirroring of hard drives and servers.
Delta Pekárny concerned a competition law inspection. The inspection began with an examination of digital correspondence. Delta Pekárny was subsequently fined for refusing to allow an in-depth examination of its data. It challenged that decision, arguing, among other points, that it was contrary to domestic law and to the European Convention on Human Rights (ECHR) for the Czech Competition Authority to carry out an inspection without having received prior authorisation from a court. In the judgment, the ECtHR makes references to EU law, to a comparative study of the investigative procedures prevailing in all Member States, and to the Commission’s inspection powers. The ECtHR considered that in the absence of a prior judicial authorisation by a judge, an effective control afterwards of the necessity of the measure, and rules on destruction of copies made, the procedural guarantees were insufficient to prevent the risk of an abuse of powers. There had been a violation of Article 8 of the ECHR (right to respect for private and family life, home and correspondence).
The ECtHR’s legal assessment in Delta Pekárny cannot, in my opinion, be seen as a criticism of the investigation procedure under Regulation 1/2003, a procedure that has been copied in several Member States. Rather, the outcome seems specific to the procedural rules applicable in the Czech Republic.
Delta Pekárny builds partly on Robathin, a case that concerned a search warrant at the office of an Austrian practicing lawyer who was suspected of aggravated theft, aggravated fraud and embezzlement. The warrant was issued by an investigating judge in the context of criminal proceedings. All files of the lawyer’s computer system were copied. The ECtHR held that domestic law and practice must afford adequate and effective safeguards against any abuse and arbitrariness. There should be particular reasons to allow the search of all data, having regard to the specific circumstances prevailing in a law office. There were no such reasons either in the search warrant itself or in any other document. The ECtHR found that the seizure and examination of all data went beyond what was necessary to achieve the legitimate aim. There was a violation of Article 8 of the ECHR.
The Robathin case concerned classic or hard core criminality. Depending on the circumstances, a competition law fine can be considered a criminal penalty. Competition law cases nevertheless lean more towards the administrative enforcement side, and this can influence the procedural requirements.
A hint at how the ECtHR may regard competition law dawn raids came in Bernh Larsen Holding. The case concerned a tax inspection.Three companies used a server jointly and the Norwegian tax authorities copied the entire sever content. The inspection order was adopted without prior judicial authorisation. Volumes of surplus information without importance for the tax inspection had been copied, including private correspondence and business secrets. The ECtHR accepted considerations of efficiency of the tax audit, but made clear that this did not confer on the tax authorities an unfettered discretion. The Court assessed whether the measure was necessary and proportionate. There was a wider margin of appreciation since the measure was aimed at legal persons and not at an individual. The nature of the interference was not of the same seriousness and degree as in the case of search and seizure carried out under criminal law since the consequences of a tax subject’s refusal to cooperate were exclusively administrative. The outcome was that the Norwegian order had been subject to important limitations and was accompanied by effective and adequate safeguards against abuse. There was no violation of Article 8 of the ECHR.
The judgments of the ECtHR can be seen in relation to those of the EUCJ. In Nexans, the Commission carried out a dawn-raid and decided to remove four DVD-ROM discs and a copy of the hard drive of the laptop of an employee of Nexans France, for later review at its premises in Brussels. The inspection decision, as well as the mirroring measures and other measures, were appealed to the General Court. Nexans’ claim relating to the Commission’s decision to remove copies of certain computer files and of the hard drive, was deemed inadmissible. After reminding that Nexans could bring its claims within an appeal against a final decision, the General Court pointed out that Nexans could also bring an action for damages against the Commission if it believed that copying of several computer files and of a hard drive for later examination in its offices was illegal and had caused harm. There was consequently no assessment in substance.
“Step by step, the Court in Strasbourg is moving into domains that have, for many years, primarily been a matter for the EUCJ”
An outcome which appears opposite can be observed in Deutsche Bahn. Deutsche Bahn challenged three Commission inspection decisions. One of the claims was that Deutsche Bahn’s defence rights had been infringed in view of irregularities during the first inspection. According to Deutsche Bahn, the second and third inspections were based on information that had been unlawfully obtained during the first inspection. Among other things, the Commission had searched certain e-mails that were clearly unrelated to the subject-matter of the first inspection. Allegedly the Commission officials had also used certain keywords unrelated to the inspection during their electronic search. The General Court looked into all those aspects in relative detail and finally rejected the plea as unfounded. The General Court’s judgment has been appealed.
While the General Court’s judgment in Nexans seems somewhat difficult to reconcile with the case-law of the ECtHR, the approach in Deutsche Bahn appears to be more in line with the methodology envisaged by the ECtHR in Robathin and Bernh Larsen Holding. The facts of Delta Pekárny may be too specifically related to Czech domestic law to be of general application. Nevertheless, the ECtHR’s approach is telling. Step by step, the Court in Strasbourg is moving into domains that have, for many years, primarily been a matter for the EUCJ. This as such, should come as no surprise. The EUCJ has made references to the ECHR for decades in competition law rulings. Can we in the years to come expect to see a mutual alignment?
Featured image credit: FW Pomeroy’s statue of Justice atop the Old Bailey. Photo by Ben Sutherland. CC-BY-2.0 via Flickr
For almost a hundred years, international law has been on the receiving end of relentless criticism from the policy and academic worlds. That law, sometimes called the law of nations, consists of the web of rules developed by states around the world over many centuries through treaties and customary practices, some bilateral, some regional, and some global. Its rules regulate issues from the very technical (how our computers communicate internationally or the lengths of airport runways) to areas of common global concern (rules for ships on the seas or ozone pollution) to the most political for individual states (like when they can go to war or the minimum standards for human rights).
The first challenge to international law comes from those politicians, pundits, and political scientists who see it as fundamentally ineffective, a point they see as proved ever since the League of Nations failed to enforce the Versailles Treaty regime against the Axis in the 1930s. But those who really know how states relate to each other, whether diplomats or academics, have long found this criticism an unrealistic caricature. While some rules have little dissuasive power over some states, many if not most important rules, are generally followed, with serious consequences for violators, like ostracism, reciprocal responses, or even sanctions. The list of routinely respected rules is enormous, from those on global trade to the law of the sea to the treatment of diplomats to the technical areas mentioned above. Most international cooperation is grounded in some legal rules.
The second challenge to international law has come from domestic lawyers and some legal scholars who asserted that international law is not really “law” because it lacks the structure of domestic law, in particular an executive or police force that can enforce the rules. But this too is a canard. As the British legal scholar H.L.A. Hart pointed out more than a half-century ago, one does not need to have perfect enforcement for a rule to be “law,” as long as the parties treat the rules as law. With international law, states certainly interact in a way that shows they treat those rules as law. They expect them to be followed and reserve special opprobrium and responses for law violators. Certainly, powerful states can get away with some law violations more easily than weak states, but that has nothing to do with whether international law is law.
Third, international law has faced a challenge from some philosophers and global leaders that it is fundamentally immoral. They claim that its rules reflect self-interested bargains among governments, but lack moral content. It is intriguing that this moral criticism actually comes from two opposite directions. On the one hand, so-called cosmopolitan philosophers, who think people’s moral duties to one another should not turn on nationality or national borders (which they view as morally arbitrary), condemn many rules for sacrificing concern for the individual, wherever he or she may live, for the mere interests of states. On the other hand, leaders of many developing world nations claim that many of international law’s rules are immoral for not privileging states enough, in particular because they see the rules as part of a move by Northern states to undermine poor nations’ national sovereignty.
One example shows the criticism. Consider the rule on secession, a rule that helps us evaluate, for instance, whether Crimea’s separation from Ukraine, and Russia’s engineering of that move, is illegal. International law has a “black-letter” rule that strictly limits the possibility for a group of people disaffected with their government to secede unilaterally from their state, only endorsing it if the government is severely denying them representation in the state. The point of the rule is to avoid the violence that comes from secessions – as we have seen from the break-up of Yugoslavia, the war between Sudan and the recently formed South Sudan, and the Ukraine-Russia conflict today. Cosmopolitan philosophers condemn the rule for not allowing individuals enough choice, by forcing people to remain tied to a state when they would prefer to have their own state, just for the sake of the stability of existing and arbitrary inter-state borders. Developing world leaders, often intolerant of minority groups in their state, criticize the rule for the opposite – for harming states by opening the door, however slightly, for some groups to secede and form their own states.
I think both of these criticisms miss the mark. In my view, many core rules of international law are indeed just because they do what all rules of international law must do – they promote peace, interstate or domestic, while respecting basic human rights. We need international rules to promote peace because the global arena is still characterized by a great deal of interstate and internal violence. At the same time, we cannot tolerate rules that trample on basic human rights, which are a sort of moral minimum for how we treat individuals.
This standard for a just system of international law is different from the more robust form of justice we might expect for a domestic society. The great theory of contemporary justice, that of John Rawls, demands both an equal right to basic liberty for all individuals within a state and significant redistribution of material wealth to eliminate the worst economic inequality. But we can’t really expect international law to do this right (particularly the second) now. Why? Because we cannot assume the domestic tranquility on which to build that more robust justice, and because the international arena does not have the same kind of strong institutions to force those sorts of rules on everyone (even though it can force some rules on recalcitrant states).
To return to my example about secessions, I think the rule we have strikes the right balance between peace and human rights. It promotes interstate and internal peace by disallowing merely unhappy groups to separate unilaterally; but it keeps the door open to that possibility if they are facing severe discrimination from the central government. So the Scots, Quebecers, or ethnic Russians in Ukraine do not have a right to secede, but Estonians did, and maybe Kurds still do. Other rules of international law will also meet this test, though I think some of them do risk undermining human rights.
Why should we care whether international rules are just? Because, as I stated earlier, those norms actually do guide much governmental action today. If a norm of international law is just, we have given global leaders and the public good reasons to respect it – as well as good reasons to be wary of changing it without careful reflection. And for those that are not, we can use an ethical appraisal to map out a course of action to improve the rules. That way, we can develop an international law that can promote global justice.
Many in the media and academia (myself included) have been discussing the Ebola crisis, and more specifically, the issues that arise as Ebola has traveled with infected patients and health care workers to the United States and infected other US citizens.
These discussions have been fascinating and frightening, but the terrifying truth is that Ebola is just the tip of the iceberg. Diseases have long traveled with patients, and as the phenomena of medical tourism and the more general globalization of health care grow, these problems are likely to grow as well.
Medical tourists are very good targets of opportunities for pathogens. Many are traveling with compromised or suppressed immune systems to destination countries for treatment with relatively high infection rates, including the risk of exposure to multi-drug–resistant pathogens.
Doctors typically distinguish commensals—the bugs we normally carry on our skin, mouth, digestive tracts, etc.—from pathogens, the harmful bacteria that cause disease through infection. But what is commensal for a person in India might be an exotic pathogen for a US population. Medical tourist patients are transporting their commensals and pathogens to the hospital environments of the destination countries to which they travel, and are exposed to the commensals and pathogens of hospitals and population at large in the destination country. These transmissions tax the health care system and the knowledge of physicians in the home country to whom the new microbe may be unknown, and diagnosis and treatment more difficult.
Air travel can involve each of the four classical modes of disease transmission: contact (e.g. body-to-body or touching an armrest), common vehicle (e.g. via food or water), vector (e.g. via insects or vermin), and airborne (although more recent planes are equipped with high efficiency particulate air (HEPA) filters reducing transmission risk, older planes are not).
We have seen several diseases travel in this way. The Severe Acute Respiratory Syndrome (SARS) outbreak of 2003 involved a three-hour flight from Hong Kong to Beijing carrying one SARS-infected passenger leading to sixteen passengers being subsequently confirmed as cases of SARS, with eight of those passengers sitting in the three rows in front of the passenger.
In January 2008, a new type of enzyme was detected in bacteria found in a fifty-nine-year-old man with a urinary tract infection being treated in Sweden. The man, Swedish but of Indian origin, had in the previous month undergone surgeries at two hospitals in India. The enzyme, labeled “New Delhi metallo-beta-lactamase-1 (NDM-1)” was able to disarm a lot of antibiotics, including one that was the last line of defenses against common respiratory and urinary tract infection.
In 2009, a study found that twenty-nine UK patients had tested positive for the bacteria-carrying NDM-1 and that seventeen of the twenty-nine (60%) had traveled to India or Pakistan in the year before. A majority of those seventeen received medical treatment while abroad in those countries, some for accidents or illness while traveling and others for medical tourism, either for kidney and bone marrow transplants or for cosmetic surgery.
High-income countries face significant problems with these infections. A 2002 study estimated that 1.7 million patients (ninety-nine thousand of whom died as a result) developed health care-acquired infections in the United States that year. In Europe these infections have been estimated to cause thirty-seven thousand deaths a year and add US $9.4 billion in direct costs
What can be done? Although in theory airline or national travel rules can prevent infected patients from boarding planes, detecting these infections in passengers is very difficult for the airline or immigration officials, and concerns about privacy of patients may chill some interventions. A 2007 case of a man who flew from the United States to Europe with extensively resistant tuberculosis and who ultimately circumvented authorities who tried to stop him on return by flying to Montreal, Canada and renting a car, shows some of the limits on these restrictions.
Part of the solution is technological. The HEPA filters discussed above on newer model planes reduce the risk substantially, and we can hope for more breakthroughs.
Part of the solution is better regulating the use of antibiotics: overuse of antibiotics when not effective or necessary, underuse of antibiotics when they are needed, failure to complete a full course of antibiotics, counterfeit drugs, and excessive antibiotic use in food animals. This is not a magic bullet, however, and we see problems even in countries with prescription systems such as the United States.
We also need much better transparency and reaction time. Some countries reacted quickly to the report of the NDM-1 cases discussed above in issuing travel warnings and informing home country physicians, while others did not.
Finally, as became evident with Ebola, we need better protocols in place to screen returning medical tourism patients and to engage in infection control when needed.
Headline image credit: Ebola virus virion by CDC microbiologist Cynthia Goldsmith. Public domain via Wikimedia Commons.
When “The Case of the Black Macaque” scooped media headlines this summer, copyright was suddenly big news. Here was photographer David Slater fighting Wikipedia over the right to disseminate online a portrait photo of a monkey which had, contrary to all expectations and the law of averages, managed within just a few jabs of a curious finger, to take a plausible, indeed publishable “selfie”. Did Slater have the right to control the image since it was his camera on which it was recorded, or was it free for the world to use on the basis that he was not its author, the true creator being the crested black macaque who, for all her charm and dexterity, was neither a real nor legal person and therefore disentitled to any legal rights?
Disputes like this make great headlines, but cause even greater headaches for the intellectual property (“IP”) community. Most have little legal substance to them and are interesting only because of their facts, but that’s what drives journalists’ involvement and readers’ interest, making it easier for the media to attract paying advertisers. By the time they pass through the media machine these tales are frequently mangled to the point at which IP lawyers can scarcely recognise them. In one recent case involving a well-known chocolate brand, a company was said to have patented its copyright in England in order to sue a business in Switzerland for trade mark infringement. To the layman this may sound fine, but it’s about as sensible to the expert as telling the doctor that you’ve got a tummy ache in your little finger because your cat ate the goldfish last night. We IP-ers try to explain the real story, but monkeys and selfies are far more fun than the intricacies of copyright law and, by the time we’ve tried to put the record straight, the next exciting story has already broken.
“By the time they pass through the media machine, these tales are frequently mangled to the point at which IP lawyers can scarcely recognise them”
The next selfie episode to hit the headlines, far from featuring a portrait, was quite the opposite end of the anatomical spectrum. Model Kim Kardashian objected that Jen Selter’s selfies constituted copyright infringements of photos which had been taken of Kim Kardashian’s bottom (occasionally colloquially described as her “trademark” bottom, but not yet registered in conventional legal fashion). Here the only questions IP lawyers address are (i) are the pictures of Kim Kardashian’s backside copyright-protected works and (ii) does the taking by Jen Selter of selfies of her own posterior constitute an infringement? For press and public, however, the issue morphs into the much more entertaining, if legally irrelevant, one of whether a person has copyright in their own bottom.
There are many IP rights apart from copyright and they all have their macaque moments. Trade mark law is full of episodes of evil corporations stealing words from the English language and stopping anyone else using them. Patent law (in which the legal protection of body parts very much smaller than bottoms, such as sequences of DNA, does have some relevance) is garnished with tales of greed and intrigue as people seek to steal one another’s ideas and avariciously monopolise them. Confidentiality and the right to publicity have their own rip-roaring encounters in court as amorous footballers who are “playing away” seek to hush up their extramarital (that’s one word, not two) exploits. Meanwhile, the women with whom they shared moments of illicit intimacy seek to cash in on their news value by selling them to the highest bidder. For IP lawyers the legal issues are serious and, when cases come to court, they achieve precedential status that governs how future episodes of the same nature might be handled. For press and public, the issues are different: who is the footballer, who is the woman — and are there any pictures (ideally selfies)?
Seriously, the rate at which not just eye-catching tales like those related above but also far less glamorous tales result in litigation, or even legislation, makes it hard-to-impossible for practitioners, academics, administrators and businessmen to keep abreast of the law, let alone understand its deeper significance for those affected by it: businesses, governments, consumers, indeed everyone. Publishers like OUP are increasingly raising the tempo of their own responses to the IP information challenge, utilising both formal and informal media, in print and online. Since legal publishing is largely reactive, we can narrow the gap between the time an exciting new event or legal decision hits the popular media and the point at which we can strip it down to its bare legal essentials. But it will take more than a little monkeying around before we can close that gap completely.
Featured image credit: Camera selfie, by Paul Rysz. CC-BY-2.0 via Flickr.
To mark Human Rights Day, we have produced a map of 50 landmark human rights cases, each with a brief description and a link to a free article or report on the case.
The cases were chosen in conjunction with the editors of the Oxford Reports on International Law. These choices were intended to showcase the variety of international, regional, and national mechanisms and fora for adjudicating human rights claims, and the range of rights that have been recognized.
The following map provides a quick tour to these cases, highlighting trends and themes, some positive, some negative.
Major Historical Events
A lot of these cases are important because of the way they demonstrate the possibility of righting historic injustices: for the disappeared of Honduras, for victims of Argentina’s “dirty war,” for Hitler’s slaves, heroes of the Chernobyl disaster, and East Germans gunned down trying to reach the West. They also shine a light on what happens in the aftermath of war: Peruvian politicians attempting to pass amnesty laws to prevent accountability, people on the losing side of World War II having their property stolen, and the operation of post-World War I minorities treaties.
From a human rights standpoint we probably have a number of preconceptions about Africa – large scale atrocities and impunity. While that is horribly true in places there are also aspects of the cases highlighted in our map that might surprise some. The one case about an investor’s rights (Diallo) features an African state, not one of the typical capital exporting states, taking legal action on behalf of its citizen. There is also the range of fora in Africa that offer remedies. In addition to the obvious forum – the Commission and Court of the African regional human rights system, we have cases from the East-African Court of Justice and the ECOWAS Community Court both finding that they are empowered to adjudicate on human rights issues as universal as the rights of indigenous peoples and anti-slavery. Whereas you wouldn’t be surprised to see a post-Apartheid decision from the South African domestic courts in this list, it is instructive to see a case from Ugandan domestic courts on press freedom.
Expansion of Rights
The modern proliferation of rights is often a topic of humorous exaggeration. These cases exemplify a great breadth of rights beyond the classic civil and political rights of freedom from torture, or free speech. Where it does address these topics there is a novel twist: on torture, whether it is OK to extradite criminals to a place where they face torture; on free speech, whether Holocaust denial should be protected. Several have gender aspects: states’ obligations to prevent domestic violence, women being required to prove they are the “breadwinner” in order to have access to unemployment benefits, sexual violence against women as a means to silence political dissent. Others bring in group rights: self-determination, rights of indigenous peoples, and even the rights of tribes imported via the slave trade. Add to these cases on the execution of minors, anti-homosexuality laws, and treating a person’s DNA as their private matter, and we see how far the law has developed.
Opponents of human rights litigation often point out that these rights are frequently claimed by people whom we deplore. It is true that many of the people making claims in these cases were accused of murder and terrorism, or at least were sworn enemies of the state that (allegedly) abused them. So the lesson here is that these are human rights, not “nice people’s” rights.
Human Rights as an Excuse
With so many human rights remedies available there is a temptation for litigants, whether states or individuals, to use human rights as a way to get an issue before a court. You would expect the case between Georgia and the Russian Federation at the International Court of Justice (ICJ) to be about the illegal use of force by Russia. Instead, Georgia sued under a human rights treaty: the International Convention on the Elimination of All Forms of Racial Discrimination (CERD). Why? Ordinarily Russia could refuse to submit to a legal procedure at the ICJ, but the CERD contains a provision saying that in any dispute under that treaty between two states that have ratified it (which Russia and Georgia had) both parties must agree to the jurisdiction of the ICJ. So Georgia gets minor revenge for Russia’s invasion and annexation by suing Russia for racial discrimination.
You might think the clustering of pins in our map is about abuses, but actually it demonstrates access to a legal process (and, depending on implementation) a remedy. So plenty of pins in Europe, and Israel, but none in Saudi Arabia or North Korea.
These 50 cases are by no measurable sense the 50 greatest or most important cases, but they do amply demonstrate the expansion and increasing profile of this, mostly admirable, element of the rule of law.
Today, 10 December, is Human Rights Day, commemorating The Vienna Declaration and Programme of Action. In celebration, we’re sharing an edited extract from International Human Rights Law, Second Edition by Kenneth Roth, Executive Director of Human Rights Watch.
The modern state can be a source of both good and evil. It can do much good – protecting our security, ensuring our basic necessities, nurturing an environment in which people can flourish to the best of their abilities. But when it represses its people, shirks its duties, or misapplies its resources, it can be the source of much suffering.
International human rights law sets forth the core obligations of governments toward their people, prescribing the basic freedoms that governments must respect and the steps they must take to uphold public welfare. But the application of that law often differs from the enforcement of statutes typically found in a nation’s law books.
In countries that enjoy the rule of law, the courts can usually be relied on to enforce legislation. The rule of law means that courts have the independence to apply the law free of interference, and powerful actors, including senior government officials, are expected to comply with court orders.
In practice, there is no such presumption in most of the countries where my organization, Human Rights Watch, works, and where international human rights law is most needed. The judges are often corrupt, intimidated, or compromised. They may not dare hold the government to account, or they may have been co-opted to the point that they do not even try, or the government may succeed in ignoring whatever efforts they make.
International human rights law should be seen as a law of last resort when domestic rights legislation fails. Judicial enforcement is always welcome, but when it falls short, human rights law provides a basis that is distinct from domestic legislation for putting pressure on governments to uphold their obligations.
Human rights groups investigate and report on situations in which governments fall short of their obligations. The resulting publicity, through the media and other outlets, can undermine a government’s standing and credibility, embarrassing it before its people and peers and generating pressure for reform.
Beyond documenting and reporting violations of human rights law, human rights groups must shape public opinion to ensure that the exposure of government misconduct is met with opprobrium rather than approval. In part this is done by citing international law to convince the public of a global consensus about what is right or wrong in a given context. By presenting an issue in terms of rights, human rights groups help the public to develop a moral framework for assessing governmental conduct beyond public sentiment in any particular case or incident.
For the law to play this role of moral instruction, it is not enough simply to recite it. When people’s security or traditions are at stake, it takes more than a mere reference to the law to change the public’s sense of moral propriety. Human rights groups must be creative in moving the public to embrace what the law demands.
Sometimes it is difficult to convince a local public to disapprove of its government’s conduct. Thus, the great challenge facing human rights groups is often less concerned with arguing the law’s fine points or applying them to the facts of a case than with convincing the public that violations are wrong. That requires the hard work of helping the public to identify with the victim’s plight, making the law come alive, and generating outrage at its violation with some public of relevance. When human rights law can be made to correspond with the public’s sense of right and wrong, governments face intense pressure to respect that law. Shame can be a powerful motivator.
What are the ties that bind us together? How can we as a global community share the same ideals and values? In celebration of Human Rights Day, we have asked some key thinkers in human rights law to share stories about their experiences of working in this field, and the ways in which they determined their specific focuses.
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“My area of research is complementary forms of international protection, which is where international refugee law and international human rights law merge. Since the beginning of time, there has been an element of compassion in customary and religious norms justifying the acceptance of and assistance to persons banned from their communities or forced to leave their homes for reasons of poverty, natural disasters, or other reasons outside their control. Based on a general conviction that the alleviation of suffering is a moral imperative, many industralized countries included in their domestic migration practice the possibility to grant residence permits to certain categories of persons, who seemingly fall outside their international obligations, but who they considered to deserve protection and assistance because of a sense that this is what humanity dictates. In the past twenty years, many of these categories have become regulated and categorized as beneficiaries of protection, either through a broad interpretation of the refugee concept or through the adoption of new legislation confirming the domestic practice of States, such as the EC Qualification Directive. I find this to be a fascinating area of international law because, it shows how human rights and the notion of ‘humanitarianism’ (i.e. reasons of compassion, charity or need) have generated legal obligations to protect and assist aliens outside their country of origin.”
“My work focuses on the forms and functions of the law when faced with contemporary mass crimes and their traces (testimony, archives, and the (dead) body). It questions the relationship between law, memory, history, science, and truth. To do so, I call into question the various legal mechanisms (traditional/alternative, judicial/extrajudicial) used in the treatment of mass crimes committed by the State and their heritage, especially at the heart of criminal justice (national and international), transitional justice, international human rights law, and constitutional law. In this context I have explored the close relationship between international criminal law and international human rights law. These two branches of law, that have distinct objects and goals, are linked by what they have in common: the protection of the individual. Their interaction culminated in the 90s when international criminal law, and in a larger sense transitional justice, boomed: an actual human rights turn took place with the strong mobilization of human rights in favour of the ‘fight against impunity’ of the gravest international crimes. At the heart of this human rights turn lays the consecration of a new human right, namely, the ‘right to the truth’, which is the object of my current research.”
“I decided early on to focus in my work on how rights perform when they are put under some kind of strain. That could be panic and fear emerging from a terrorist attack, or resource limitations at national or international level, or political structures that make effective enforcement of rights (un)feasible, for example. It seemed to me to be important to think about the resilience of the language and structures, as well as the law, of human rights because in the end of the day we rely on states to deliver rights in a meaningful way and this raises all sorts of challenges around legitimacy, will, embeddedness, international relations, domestic politics, legal systems, constitutional frameworks, and so on. These are factors that have to be accounted for when we think about what makes human rights law work as a means of ensuring human rights in practice; as a means of limiting the power of states to do as it wishes, regardless of the impact on individual and group welfare, dignity, and liberty. Thus, rather than specialise in any particular right per se, my interest is in frameworks of effective rights protection and understanding what makes them work, or makes them vulnerable, especially in times of strain or crisis.”
“I have always been interested in the protection of individual rights from undue interference by executive authority. So, my scholarly roots arguably originate in classic social contractarianism. In my work, I have been mostly focusing on civil and political rights, whether in the context of constitutional law, criminal justice, or international (human rights) law. An important part of my research examines the (alleged) tension between ‘liberty’ and ‘security’ and explores how this tension plays out in both domestic and international contexts, often addressing the interface between the two dimensions. National security issues, such as terrorism, have featured prominently in my scholarship, but my human rights-related work also extends to the field of preventive justice, including questions relating to the post-sentence detention of ‘dangerous’ individuals for public safety purposes. A fascinating development that has captured my attention recently concerns the expansion of executive power of international organisations. International bodies such as the UN Security Council have become increasingly active in the administration and regulation of matters that once used to be the exclusive domain of States. This shift in governance functions, however, has not been accompanied by the creation of mechanisms to restrain or review the exercise of executive power. I suspect that it is in this area that much of my research will be carried out in the years ahead.”
“I specialize in the interaction between international financial markets and human rights, both in relation to (a) understanding international legal obligations relating to socio-economic rights in the context of financial processes and dynamics; and (b) the business and human rights debate as it applies to financial institutions. My focus on these areas resulted from an awareness that as the world economy globalised over the last twenty years, the financial markets changed beyond all recognition to become a predominant force shaping economic processes. Therefore, although they are generally seen as remote from immediate human rights impacts, they set the context of socio-economic rights enjoyment. The practical challenges involved in realising these rights can only be fully understood by accepting the way financial markets shape economic and policy making options, and outcomes for individuals. As this is a huge field of enquiry and many of the connections have not so far been extensively explored from a human rights point of view, my focus tends to be determined by (a) a desire to bring new areas of the financial markets into a human rights framework, and (b) a desire to respond to issues of importance as they arise, such as financial crisis and austerity.”
“My research covers a variety of human rights issues, however I have a particular interest in the analysis of domestic violence as a human rights issue. Domestic violence affects vast numbers of people in every state around the globe. The practice of domestic violence constitutes a breach of internationally recognised rights such as the right to be free from torture and inhuman or degrading treatment; the right to private and family life; and, in some circumstances, the right to life itself. However it is only relatively recently that domestic violence has been analysed through the lens of human rights law. For example, it is only since 2007 that judgments of the European Court of Human Rights have been issued which directly focus on domestic violence. Nevertheless, there is now an ever-increasing awareness of domestic violence as a human rights issue, and there have been a number of important recent developments, such as the adoption of the Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence, which entered into force on 1 August 2014.”
“Human rights discourse has been proliferating. Yet I feel that the proliferation of the discourse of human rights does not contribute to the success of implementing human rights on the ground. Perhaps one reason is that human rights scholarship and activism has great appeal to idealists and while idealists whom I admire are good in articulating ideals, they are less capable of carrying out these ideals. I believe that a major difficulty in implementing human rights is the costs of implementation. Human rights organizations may be justifiably appalled by police brutality and urge states to restructure their police forces, but such a restructuring is not costless and it may be detrimental to other urgent concerns including human rights concerns. The good intentions of activists and the scholarly work of theorists (to which I have been committed in the past) may ultimately turn out to be detrimental to the protection of human rights. What I think is urgently needed in order to carry out the lofty ideals is not more human rights scholarship but scholarship which will focus its attention on the best ways to implement the most urgent and basic humanitarian concerns. This is not what I have been doing in my own work but I am convinced it is what needs at this stage to be done. In doing so one ought to constrain idealism in favor of modest pragmatism. Ironically those who can most effectively pursue modest pragmatism are not human rights activists or theorists.”
“It had long been assumed that the best protection of human rights was a strong, Western-style democracy – if it came to the test, the people would always decide in favour of human rights. Recent developments, however, have challenged this assumption: human rights restrictions introduced after 9/11 in the United States and other Western democracies had strong popular support; the current British government’s plans to weaken (or even withdraw from) the ECHR system seem primarily designed to gain votes; Swiss voters have approved several popular initiatives that conflict with international human rights guarantees. Is the relationship between democracy and human rights not as symbiotic as it is often thought? Do direct democratic systems lend themselves more to tyranny of the majority than representative democracies? What is needed so that the human rights of those in the minority can be effectively protected? These, I believe, are among the most pressing questions that human rights lawyers must confront today.”
In order to spread some festive cheer, Blackstone’s Policing has compiled a watchlist of some of the best criminal Christmas films. From a child inadvertently left home alone to a cop with a vested interest, and from a vigilante superhero to a degenerate pair of blaggers, it seems that (in Hollywood at least) there’s something about this time of year that calls for a special kind of policing. So let’s take a look at some of Tinseltown’s most arresting Christmas films:
1. Die Hard, directed by John McTiernan, 1988
Considered by many to be one of the greatest action/Christmas films of all time, Die Hard remains the definitive cinematic alternative to the usual saccharine cookie-cut Christmas film offering. This is the infinitely watchable story of officer John McClane’s Christmas from hell. When a trip to win back his estranged wife goes awry and he unwittingly finds himself amidst an international terrorist plot, he must find a way to save the day armed only with a few guns, a walkie talkie, and a bloodied vest. With firefights and exploding fairy lights abundant, this Bruce Willis tour de force is the undisputed paragon of policing in Christmas films.
2. Home Alone, directed by Chris Columbus, 1990
In a parental blunder tantamount to criminal neglect, the McCallister family accidentally leave their youngest member, Kevin (played by precocious child star Macaulay Culkin), ‘home alone’ to fend for himself over Christmas as two omnishambolic burglars target the McCallister household. As the Chicago Police Department work through the confusion of the situation, Kevin traverses his way through a far from silent night. Cue copious booby traps and slapstick as the imagination of an eight-year-old boy ingeniously holds the line in this family-fun classic.
3. Batman Returns, directed by Tim Burton, 1992
Gotham is a city perennially infested with arch-criminals whose seemingly endless financial resources demand that they be tackled head-on by a force who can match them pound-for-pound (or dollar-for-dollar, if you prefer). Enter Gotham’s very own Christmas miracle: billionaire Bruce Wayne and his vigilante alter ego Batman (Michael Keaton), who provides a singular justice-hungry scourge against the criminal underworld. As the Penguin (Danny DeVito) hatches a nefarious plot which threatens the city, Batman’s wholly goodwill must prove resilient. Though director Tim Burton went on to make The Nightmare Before Christmas the following year, Batman Returns itself is hardly a Christmas classic.
4. Lethal Weapon, directed by Richard Donner, 1987
With a blizzard of bullets and completely bereft of snow, LA-based Lethal Weapon lacks nearly all the usual trimmings of a Christmas film. Seasoned detective Roger Murtaugh (Danny Glover) is close to retirement when he’s paired with the young (and morose) Martin Riggs (Mel Gibson) to tackle a drug smuggling gang. As their stormy investigation progresses, Murtaugh and Riggs’ unlikely union flourishes into a double-act worthy of Donner and Blitzen (and, judging by the pair’s return in a subsequent three installments of the series, their entertaining policing partnership always leaves audiences wanting myrrh…).
5. National Lampoon’s Christmas Vacation, directed by Jeremiah Chechik, 1989
In this third installment of the Griswold family’s catastrophic holidays, Clark (Chevy Chase) navigates his way through the perils of yet another disastrous calamity, but at least this time he has his Christmas bonus to look forward to. Things take a bizarre turn for the criminal when the bonus isn’t forthcoming, resulting in a myriad of mishaps of Christmas paraphernalia and SWAT teams. As the tagline for the film attests, ‘Yule crack up!’
6. Kiss Kiss Bang Bang, directed by Shane Black, 2005
Petty thief Harry Lockhart (Robert Downey Jr.) finds himself embroiled in a series of increasingly byzantine cases of mistaken identity as both a method actor and criminal investigator. Reality cuts through when Harry is shepherded into a murder investigation involving the sister of his childhood crush, Harmony Lane (Michelle Monaghan). Perhaps one of the less christmassy films on this list, there are definitely still a few seasonal signs parceled in to this murder/mystery thriller.
“There’s something about this time of year that calls for a special kind of policing”
7. Miracle on 34th Street, directed by George Seaton, 1947
Arguably the ultimate Christmas film, Miracle on 34th Street is the classic tale of the legal battle around the sanity and freedom of a man who claims to be the real Santa Claus. This original film won three Academy Awards including Best Actor in a Supporting Role for Edmund Gwenn’s portrayal of Kris Kringle (‘the real Santa Claus’). Despite being remade in 1994 and adapted into various other forms, the 1947 version remains the quintessential Christmas film which no comprehensive watchlist could be without.
8. Bad Santa, directed by Terry Zwigoff, 2003
Dastardly duo Willie (Billy Bob Thornton) and Marcus (Tony Cox) make their criminal living by posing as Santa and his Little Helper for department stores, and then opportunistically stealing as much as they can. As the security team for their latest blag hunts them down, Willie meets a boy determined that he is the real Santa and the race is on for the degenerate pair to reform their lifestyles before they are stuffed.
What would would you add to this list? Tell us your favourite policing Christmas film in the comments section below or let us know directly on Twitter. Merry Christmas everyone!
Headline image credit: [365 Toy Project: 019/365] Batman: Scarlet Part 1. CC-BY-NC-SA-2.0 via Flickr.
Every year, on December 10, UN Human Rights Day commemorates the day in 1948 on which the United Nations General Assembly adopted the Universal Declaration of Human Rights. Although the Declaration itself said nothing about the death penalty, the International Covenant on Civil and Political Rights (ICCPR) that incorporated its values in 1966 made it clear in Article 6(6) that ‘nothing … should be invoked to delay or to prevent the abolition of capital punishment by any State Party to the … Covenant,’ which now has been ratified by all but a handful of nations.
Today, we pause to consider the considerable changes that have taken place in the use of capital punishment around the world over the past quarter of a century, changes which have shifted our pessimism – believing that in many regions of the world there was little hope of worldwide abolition occurring soon – towards increasing optimism. Since the end of 1988, the number of actively retentionist countries (by which we mean countries that have carried out judicial executions in the past 10 years) has declined from 101 to 39, while the number that has completely abolished the death penalty has almost trebled from 35 to 99; a further seven are abolitionist for all ordinary crimes and 33 are regarded as abolitionist in practice: 139 in all. In 2013 only 22 countries were known to have carried out an execution and the number that regularly executes a substantial number of its citizens has dwindled. Only seven nations executed an average of 20 people or more over the five year period from 2009 to 2013: China (by far the largest number), Iran (the highest per head of population), Iraq, North Korea, Saudi Arabia, the United States, and Yemen. The change has been truly remarkable. Indeed, we have witnessed and recorded a revolution in the discourse on and practice of capital punishment since the fall of the Berlin Wall.
We have witnessed and recorded a revolution in the discourse on and practice of capital punishment since the fall of the Berlin Wall.
This year’s Human Rights Day slogan – Human Rights 365 – encompasses the idea that every day is Human Rights Day. It celebrates the fundamental proposition in the Universal Declaration that each one of us, everywhere, at all times is entitled to the full range of human rights, that human rights belong equally to each of us and bind us together as a global community with the same ideals and values. What better day then to reflect on the dynamo for this new wave of abolition – the development of international human rights law and norms.
Arising in the aftermath of the Second World War and linked to the emergence of countries from totalitarian imperialism and colonialism, the acceptance of international human rights principles transformed consideration of capital punishment from an issue to be decided solely or mainly as an aspect of national criminal justice policy to the status of a fundamental violation of human rights: not only the right to not to be arbitrarily deprived of life but the right to be free from cruel, inhuman, or degrading punishment or treatment. The idea that each nation has the sovereign right to retain the death penalty as a repressive tool of its domestic criminal justice system on the grounds of its purported deterrent utility or the cultural preferences and expectations of its citizens was being replaced by a growing acceptance that countries that retain the death penalty – however they administer it – inevitably violate universally accepted human rights.
The human rights dynamic has not only resulted in fewer countries retaining the death penalty on their books, but also in the declining use of the ultimate penalty in many of those countries. Since the introduction of Safeguards Guaranteeing Protection of the Rights of those Facing the Death Penalty, which were first promulgated by the UN Economic and Social Council resolution 1984/50 and adopted by the General Assembly 30 years ago, there have been attempts to progressively restrict the use of capital punishment to the most heinous offences and the most culpable offenders and various measures to try to ensure that the death penalty is only applied where and when defendants have had access to a fair and safe criminal process. Hence, in many retentionist countries juveniles, the mentally ill, and the learning disabled are exempt from capital punishment, and some countries restrict the death penalty to culpable homicide.
There has been some strong resistance to the political movement to force change ever since the Second Optional Protocol to the ICCPR was adopted by the UN General Assembly in 1989. Attempts by the abolitionist nations at United Nations Congresses, in the General Assembly, beginning in 1994, and at the Commission on Human Rights, annually from 1997, to press for a resolution calling for a moratorium on the imposition of death sentences and executions met with hostility from many of the retentionist nations. By 2005, when an attempt had been made at the Commission on Human Rights to secure sufficient support to bring such a resolution before the United Nations, it had been opposed by 66 countries on the grounds that there was no international consensus that capital punishment should be abolished. Since then, as the resolution has been successfully brought before the General Assembly, the opposition has weakened as each subsequent vote was taken in 2007, 2008, 2010, and 2012, when 111 countries (60 per cent) voted in favour and 41 against. Just three weeks ago, 114 of the UN’s 193 member states voted in favour of the resolution which will go before the General Assembly Plenary for final adoption this month. The notion behind Human Rights 365 – that we are a part of a global community of shared values – is reflected in this increasing support for a worldwide moratorium as a further step towards worldwide abolition. We encourage all those who believe in human rights to continue working towards this ideal.
Children have become heavy new media users. Empirical data shows that a number of children accessing the internet – contrary to the age of users – is constantly increasing. It is estimated that about 60% of European children are daily or almost daily internet users, and therefore, by many they are considered to be “digital natives”.
However, in our view, the use of this “digital natives” concept is misleading and poorly founded, and is based on the assumption that children are quick to pick up new technologies. A recent EU Kids Online study invalidates this assumption. The study shows that even though children actively surf on various online applications, they lack digital skills such as bookmarking a website, blocking unwanted communications, and changing privacy settings on social networking sites. Many children are not capable of critically evaluating information and changing filter preferences.Interestingly, the lack of skills to perform specific tasks while being online does not impinge on children’s beliefs in their abilities – 43% of surveyed children believe to know more about the internet than their parents. At the moment, no correlation between this proclaimed self-confidence and their actual understanding of how internet works can be done due to the lack of data. Nevertheless, it is worth questioning whether, and to what extent, it is reasonable to expect that children understand the implications of their behaviour and what measures could mitigate children’s online risks in the most efficient and effective way.
It is probably closer to the truth to say that, in terms of privacy and data protection awareness, children are anything but “digital natives”.
Indeed, children’s actions online are being recorded, commercialised and serve for the purposes of behavioural advertising without them actually realising. This media illiteracy is tackled by awareness raising campaigns and policy measures on domestic and EU levels. However, it seems that these measures only partially address the challenges posed by children’s online engagement.
The European Commission (EC) seems to be in favour of legislative measures providing for a stronger legal protection of children’s personal data in the online environment. In Article 8 of the proposal for the General Data Protection Regulation, the EC introduces verifiable parental (or custodian) consent that would serve as a means of legitimising the processing of a child’s personal data on the internet.
Article 8 of the proposal foresees that parental consent would be required in cases where the processing operations entail personal data of children under the age of 13. The age of 13 would be the bright-line from which the processing of children’s personal data would be subjected to fewer legal constraints.
In practice, this would divide all children into two groups; children that are capable to consent (i.e. 13-18 year olds) to the processing of their personal data and children that are dependent on parental approval of their online choices (i.e. 0-13 year olds). Drawing such a strict line opposes the stages of physical and social development. Also, it requires the reconsideration of the general positive perception of the proposed parental consent from a legal point of view. In particular, it is necessary to evaluate whether the proposed measure is proportionate and whether it coincides with the human rights framework.
In a recent article published in the International Data Privacy Law Journal, we have analysed the proposal to distinguish between children younger and older than 13 years and found many practical and principled objections. Apart from the practical objections, which are often self-evident (e.g. what about the protection of children in the age group from 13 to 18 year old? How to ensure the enforcement of the proposed parental consent?), there are several fundamental problems with the proposed 13 years-rule.
The bright-line rule, which would require data controllers to obtain parental consent before processing personal data of children aged under 13, seems to be incompatible with the notion of evolving capacities. The proposed measure is based on the assumption that from the age of 13 all children are able to provide an independent consent for the processing of their personal data in the online environment. The proposed Article 8 ignores the fact that every child develops at a different pace and that the introduction of parental consent does not ensure more guidance regarding online data processing. We also regret that Article 8 in its current form doesn’t foresee a way in which children could express their own views regarding the data processing operation; the responsibility to consent would rest exclusively with a parent or a legal guardian. This set-up opposes the idea of children’s participation in the decision-making process that concerns them, an idea anchored in the UN Convention on the Rights of the Child (UNCRC) and that is recognised by both the EU and its Member States.
Finally, our analysis suggests that children’s rights to freedom of expression and privacy may be undermined, if the proposed parental consent is introduced. As a result of Article 8, children’s access to information could become limited and dependent on parents. Also, the scope of their right to privacy would shrink as parents would be required to intervene in children’s private spaces (e.g. gaming accounts) to make informed choices. Therefore, it can be observed that the introduction of parental consent contradicts the key principles of human rights law enshrined in the UNCRC.
Featured image credit: Student on iPod at school. Photo by Brad Flickinger. CC-BY-2.0 via Flickr.
Imagine you’ve been on an out-of-town business trip. Your employer paid for your airfare, but allowed you to keep the frequent flyer points generated by the trip. Some time later, you redeem the points (perhaps along with additional points generated by other business trips) for a free flight to a vacation destination. You might wonder, “Do I have taxable income, either when the points are credited to my account or when I redeem the points for personal travel?”
Under the US federal income tax, it is reasonably clear that there is taxable income in this story, although there is plenty of room to argue about the timing of the taxable event, or that the fair market value (of either the points or the later reward) should be included in income.
Despite the technical “taxability” of employees who benefit from frequent flyer programs, the Internal Revenue Service (IRS) announced a “don’t-ask-don’t-tell policy” in 2002, which stated that “the IRS will not assert that any taxpayer has understated his federal tax liability by reason of the receipt or personal use of frequent flyer miles … attributable to the taxpayer’s business travel.”
Seemingly faced with problems of valuation, enforcement, and taxpayer understanding, the IRS simply declared that it had no intention of enforcing the law, rather than dealing with the issues that would have been created by a serious attempt to administer the taxation of frequent flyer benefits.
“Seemingly faced with problems of valuation, enforcement, and taxpayer understanding, the IRS simply declared that it had no intention of enforcing the law.”
Twelve years later, the 2002 announcement still accurately reflects the supine position of the IRS. Regardless of one’s views on the merits of either taxing or not taxing employee-retained frequent flyer benefits, from a rule-of-law perspective, it is troubling that this question has been resolved by a statutorily unauthorized de facto administrative exemption, rather than by a legislative enactment.
The IRS is far from alone among tax administrators in having performed poorly with respect to frequent flyer benefits, despite having had more than three decades to grapple with the problem since frequent-flyer schemes were introduced in the 1980s. The efforts of the Canada Revenue Agency and of the Australian Taxation Office have differed from those of the IRS, but today, all three countries retain the same bottom line: virtually no tax on frequent flyer benefits is collected anywhere, and respect for the rule-of-law (on the part of both taxpayers and the tax agencies themselves) has been eroded.
So what ought to be done? A tax policy purist would suggest that either the tax administrator or the legislature should develop workable rules for valuation, and for third-party information reporting of that value (by either employers or airlines). The development of workable rules would not be easy, but it could be done. If such rules were adopted, the tax administrator could and should enforce the taxation of frequent flyer benefits. It is unlikely, however, that either an agency or a legislature would take on the difficult and thankless task of developing and adopting the necessary rules. If neither the tax agency nor the legislature is willing to get serious about the taxation of frequent flyer benefits, the second-best approach would be for the legislature to solve the agency-as-scofflaw problem by turning the IRS’ de facto administrative exclusion into an explicit statutory exclusion.
The riveting film, The Artist and the Model (L’Artiste et son Modèle) from Spain’s leading director, Fernando Trueba, focuses on a series of “one seconds” in the life of French sculptor Marc Cross.
The film director transfers himself into his protagonist, played brilliantly by Jean Rochefort, to explore what serves as inspiration for an artist. “An idea,” says the sculptor as he shares with his young model a sketch made by Rembrandt of a child’s first walking steps. “It is the tenderness of the sketch,“ the “one second of an idea,” that Marc Cross searches for to unblock his aging loss of creativity.
And it is the sculptor’s wife, played by beautiful Claudia Cardinale, who will find this “idea” for him. She will save him, help him create.
In one second, the “good wife” sees a driftless girl in their town, sleeping on the ground at a doorstep. She knows nothing about this vagabond who has found her way to their small French village at the Pyrenees’ border with Spain. The only thing the wife knows is that this homeless, hungry girl, wrapped in a bulky, woolen coat, has a face and body that her husband would love to sculpt. This street urchin could become his inspiration. Claudia Cardinale brings the girl home, shelters and feeds her, and teaches Mercè (Aïda Folch) how to pose.
After weeks of sketches and small sculptures, in one second, by chance, the sculptor sees his model in a new position, resting. It is the angle of her arm, the tilt of her head, her leaning down to reflect that gives him “his idea.” He sees in one second before him, a girl who has become a beautiful woman. Marc Cross realizes his model is thinking of the War, worrying about the people she has been transporting secretly during the night to both sides of the Pyrenees. They are “Jews, Resistance, anyone,” who want to escape German-occupied France of 1943-44, as well as from Franco’s military dictatorship of Spain.
In that one second, the sculptor feels her sensitivity, her attempts to do what is right. He sees her in a different light and feels her soul. She has become more than a body or model. He feels in one second that she is Beauty, Art. It is what the artist has been searching for. With tenderness and love, he sculpts his final masterpiece.
When his work is coming to an end, so is the War. The girl leaves to model for another, perhaps Matisse in Nice, as she bikes to the Riviera with a letter of introduction. At this time, the sculptor’s wife leaves him for a few days to care for her sick sister. It is not a coincidence that this is his moment, his one second, to create the most courageous act of all. And he does, with the beautiful finished sculpture of the woman in his garden — surrounded by perfect light and birds chirping – giving him peace.
The Artist and the Model speaks to an age when all men and women search for one second of Hope.
Fraud is one of the most costly crimes to society, with the last estimate produced by the now disbanded National Fraud Authority suggesting that in 2012 this figure was £52 billion. Yet the response from the Government, from the criminal justice system, and – most importantly – law enforcement, does not match the magnitude of the problem.
These are difficult times for the police. The most recent statistics on police numbers suggesting that officer levels have returned to where they were in 2002 as a consequence of deep funding cuts imposed by the coalition government. Nevertheless, in view of the cost of fraud – which is certainly a significant under-estimation due to the fact that not all frauds are reported and no law enforcement agency has a 100% detection rate – the public has a right to expect that the policing response to fraud is proportionate to these losses, and on a par with resources dedicated to investigating other acquisitive crimes such as burglary and robbery.
We are told that crime rates are falling, so why would this be an issue? Well, closer inspection of the Crime Survey for England and Wales reveals that the estimate of crime does not include any data for credit or debit card fraud, yet the last estimate by the National Fraud Authority was that in 2012 fraud was estimated to have cost the financial services sector over £5 billion. Fraud itself is on the increase; data evidence shows that reported fraud by individuals has risen by 17% in the 12 months to the end of March 2014. Yet again, it is only right for the public to expect that there are adequate police resources to tackle this rising crime problem.
So let us explore what the policing response to fraud actually amounts to in terms of officers dedicated to investigating this type of crime. Over the last 20 years there have been several studies that have illustrated a decline in specialist police resources dedicated to investigating fraud. During the mid-1980s, research by Michael Levi suggested there were 588 fraud squad officers. The Fraud Review published in 2006 identified that this figure had reduced to 416, which included 126 in London, and that this resource was actually under threat. Further research conducted by Robert Gannon and Alan Doig in 2008 suggested that in the last decade there had been a slight reduction in the number of police officers dedicated to the investigation of fraud, to around 400 officers. This in itself evidences the low priority that fraud is given by law enforcement, when considering that numbers of police officers rose year on year from 2000 to 2010.
To obtain a more up-to-date picture of policing resources dedicated to fraud, during the Summer/Autumn of 2013 a research team from the University of Portsmouth’s Centre for Counter Fraud Studies used the Freedom of Information Act to obtain data from Police Constabularies on the resources dedicated to fraud and economic crime. The term ‘economic crime’ was used because some forces have an economic crime unit. However, these units focus not only on the investigation of fraud, but a range of other financially related offences such as money laundering, counterfeit currency, and criminal involvement in a financial enterprise to name but a few. The expectation was that, in line with the overall reduction in police numbers, this figure would show a further decline in resources dedicated to fraud.
This was not to be the case. The numbers show that the resources allocated to tackling economic crime – excluding ‘financial investigators’ – within police forces in England and Wales currently stands at 624.3 (full time equivalent), higher than in 2006. This figure represents a mix of specialist police and civilian investigators, reflecting current trends in the increased civilianisation of some policing activities.
However, do not get too euphoric: this figure actually represents only 0.27% of all police personnel, further illustrating that the trait of giving fraud the status of a “Cinderella crime” continues. Even more worrying is that of the 48 police constabularies in the UK, seven police forces claimed they did not have an economic crime unit. So, don’t become a victim of fraud in Cumbria, North Wales, Bedfordshire, or Gloucestershire to name a few, as there won’t be anybody available to investigate your case! This may also explain why many frauds reported to the national fraud reporting centre Action Fraud never get investigated. Similarly, how many civilian fraud investigators referring an internal fraud case to the police will be familiar with the response “the offender has been sacked, what more do you want?”
Although the ‘thin blue line’ turned out to be not so thin after all, when considering that the number of recorded fraud cases has risen by two fifths over the last three years, and that there are four times as many officers dedicated to investigating benefit fraud (which only accounts for £1.9 billion of a £52 billion fraud problem), the fact that the police are only able to offer 0.27% of the total resource to fraud and economic crime does seem rather thin. Whilst the announcement that the Metropolitan Police Operation Falcon will create the largest cyber-crime and fraud team in Europe, the present policing figures really do suggest that it’s ‘open season’ for fraudsters.
How does the law operate when intellectual property rights overlap? When a creative output, be it a photograph, a piece of music, or any artistic work, is protected by multiple intellectual property rights such as trademark and copyright, or a patent and data protection, it can be challenging to manoeuvre through the overlapping rights. Intellectual property law seeks to defend the rights of the artistic creator, and protects the expression of ideas, but when these rights overlap in both law and practice, how do they interact?
This is a question that Neil Wilkof, member of the Bressler Group, special IP counsel to Herzog, and Fox & Neeman, Israel, was faced with when a student asked him how overlapping trademarks and copyright might operate. Here, Wilkof discusses how this question might be tackled:
In practice, intellectual property rights very rarely occur independently; there is usually an overlap. Here, Wilkof explains how the disjuncture between written law and practice can be addressed by looking at intellectual property from a practical, rather than theoretical, perspective:
With the issues of overlapping intellectual property rights in mind, Wilkof goes on to discuss how this area of law might change and develop in the future:
Featured image credit: Lady Justice, at the Old Bailey, by Natural Philo. CC-BY-SA-3.0 via Wikimedia Commons.
On 9 August 2014, Officer Darren Wilson of the Ferguson, Missouri (a suburb of St. Louis) Police Department, shot and killed Michael Brown, an unarmed 18-year-old. Officer Wilson is white and Michael Brown was black, sparking allegations from wide swaths of the local and national black community that Wilson’s shooting of Brown, and the Ferguson Police Department’s reluctance to arrest the officer, are both racially motivated events that smack of an historic trend of black inequality within the US criminal justice system.
The fact that the Ferguson Police Department and city government are predominantly white, while the town is predominantly black, has underscored this distrust. So too have recent events in Los Angeles, New York, Ohio, South Carolina, St. Louis, and other places that suggest a disturbing pattern of white police personnel’s use of excessive force in the beatings or deaths of blacks across the nation. So disturbing, in fact, that this case and the others linked to it not only have inspired an organic, and diverse, crop of youth activists, but also have captured the close attention of President Barack Obama, Attorney General Eric Holder, national civil rights organizations and the national black leadership. Indeed, not one or two, but three concurrent investigations of Officer Wilson’s shooting of Michael Brown are ongoing—one by the St. Louis Police Department and the other two by the FBI and the Justice Department, who are concerned with possible civil rights violations. The case also has a significant international following. The parents of Michael Brown raised this profile recently when they testified in Geneva, Switzerland before the United Nations Committee against Torture. There, they joined a US delegation to plead for support to end police brutality aimed at profiled black youth.
The details of the shooting investigations, each bit eagerly seized by opposing sides (those who support Brown and those who defend Wilson) as they become publicly available, still don’t give a comprehensive view of what actually happened between the officer and the teen, leaving too much speculation as to whether or not the Ferguson Grand Jury, who have been considering the case since 20 August, will return an indictment(s) against Officer Wilson.
What is known of the incident is that about noon on that Saturday, Michael Brown and a friend, Dorian Johnson, were walking down Canefield Drive in Ferguson when Darren Wilson approached the two in his squad car, telling them to get out of the street and onto the sidewalk. A scuffle ensued between Brown and Wilson within the police car. In his defense, Officer Wilson has stated that Brown attacked him and tried to grab his weapon. Dorian Johnson has countered that Wilson pulled Michael Brown into his car, suggesting that Brown was trying to defend himself from an overly aggressive Wilson. Shots were fired in Wilson’s police car and Brown ran down the street, pursued by Wilson. Autopsy reports indicate that Brown was shot at least six times, four times in his left arm, once through his left eye and once in the top of his head. The latter caused the youth’s death. Michael Brown’s body lay in the street, uncovered, for several hours while the police conducted a preliminary investigation, prompting even more outrage by black onlookers.
Since Michael Brown’s death, protestors from the area and across the nation have occupied the streets of Ferguson, demanding justice for the slain teen and his family. Nights of initial confrontations between police forces (the Ferguson Police, the St. Louis Police, the Missouri State Troopers and the National Guard have all been deployed in Ferguson at some time, and in some capacity, since the shooting) and though there has been some arson, looting, protestor and police violence, and arrests—even of news reporters—the protests generally have been peaceful. Not only police action during these protests, but their equipment as well, have sparked criticism and the growing demand that law enforcement agencies demilitarize. The daily protests have persisted, at times growing in great number, as during a series of “Hands up, Don’t Shoot” events that were held not just in Ferguson, but in many cities nationwide, including Chicago, New York, Washington, D.C., Los Angeles and Omaha, Nebraska in August and September. The “hands up” stance is to protest Brown’s shooting which some, but not all, witnesses have stated came even with Brown’s hands up in a gesture of surrender to Wilson.
Missouri Governor Jay Nixon, and other state and local officials, along with many of the residents of Ferguson, fear that if the Grand Jury does not indict Darren Wilson for Michael Brown’s murder, civil unrest will erupt into violence, producing an event similar to the Los Angeles Riots of 1992. In Los Angeles, large numbers of persons rioted when it seemed that the legal outcomes of two back-to-back criminal cases smacked of black injustice—the acquittal of four white police officers indicted in the assault of black motorist Rodney King, and the no jail-time sentence of a Korean shopkeeper found guilty for the murder of Latasha Harlins, a black teen. The result was the worst race riot in US history, with more than 50 people killed, the burning of a substantial portion of the ethnic business enclave of Koreatown, and at least a billion dollars in property damage.
Certainly the fear is a legitimate one. The vast majority of US race riots that have centered on black participation have occurred with like conditions as a spark—the community’s belief that a youth or vulnerable person among them has been brutalized with state sanction. The nation has witnessed these events not only in Los Angeles in 1965 and 1992; but also in Harlem in 1935 and 1964; Richmond, California in 1968; San Francisco in 1986; Tampa, Florida in 1967 and 1986; Miami in 1980; Newark, New Jersey in 1967; York, Pennsylvania in 1969; Crown Heights (Brooklyn), New York in 1991; St. Petersburg, Florida in 1996; Cincinnati, Ohio in 2001; Benton Harbor, Michigan in 2003; Oakland, California in 2009 and 2010, and the list goes on. These events all have served as cautionary tales that, unfortunately, have not resulted in either the perception or reality of black equality before the law. It is this legacy that frustrates and frightens Ferguson residents.
On Tuesday 25th and Wednesday 26th November we are looking forward to returning to Brussels for the IBC Advanced EU Competition Law. The conference will see some of the leading competition lawyers, regulators, competition authorities, economists, legal advisors, and academics come together to discuss cartels, private enforcement, vertical restraints, state aid, mergers, and more. To find out what you can expect from the conference, watch the video highlights from last year, including a clip of our very own Francesca Halstead.
Oxford Competition Law is the only fully integrated service to combine world-renowned market-leading commentaries with rigorous, selective National case reports and analysis from EU member states. Please do stop by our stand to find out more about our latest publishing, and claim your free trial to Oxford Competition Law.
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Headline image credit: Justice Painting, by Hans. Public domain via Pixabay.
I vacation in a small town on a lovely bay in the northwestern corner of Michigan’s lower peninsula. This summer my stay coincided with the run-up to the state’s primary elections. One evening, just down the street from where I was staying, the local historical society hosted a candidates’ forum. Most of the incumbents and challengers spoke pragmatically of specific matters of local concern, of personal traits that would make them good officeholders, or of family traditions of public service they hoped to continue. Some promised to be allies in disputes with the state government in Lansing. One incumbent claimed to have persuaded the state department of environmental quality to drop its longstanding objections to a wing dam that would spare a marina costly dredging. But just when I was ready to conclude that the Tea Party movement had run its course, another candidate, who identified himself as a lawyer and an expert in constitutional history, used his time to develop the claim that bureaucracy was unAmerican and that as it grew so did liberty diminish. I may have seen fewer approving nods than followed the other candidate’s tale of the wing dam, but most in the audience appeared to agree with him.
Several historians have already engaged the popular antistatism I encountered that evening. Some have argued, as Progressives did in the early twentieth century, that, after the rise of vast and powerful corporations, public bureaucracies were needed to make freedom something other than the right to be subjected to the dominion of the economically powerful. Others have taken aim at the claim that bureaucracy was incompatible with America’s founding principles. The University of Michigan’s William Novak blasted this as “the myth of ‘weak’ American state.” Yale University’s Jerry Mashaw has recovered a lost century of American administrative law before the creation of the first independent federal regulatory commission in 1887.
What such accounts miss is a long tradition of antistatism and its shaping effect on American statebuilding. Alexis de Tocqueville was an early and influential expositor. Although Americans had centralized government, Tocqueville wrote in Democracy in America that it lacked centralized administration. And that, he argued, was a very good thing: if citizens of a democratic republic like the United States ever became habituated to centralized administration, “a more insufferable despotism would prevail than any which now exists in the monarchical states of Europe.” The builders of the administrative state were not heedless of Tocqueville’s nightmare, but they were convinced that their political system was broken and had to be fixed. They believed they lived not in some Eden of individual liberty but in a fallen polity in which businessmen and political bosses bargained together while great social ills went unredressed.
The most important of the statebuilders was no wild-eyed reformer but an austere, moralistic corporation lawyer, Charles Evans Hughes, who, as Chief Justice of the United States, would later out-duel President Franklin D. Roosevelt. Neither Hughes nor anyone else thought that government would control itself. Instead, he and other judges reworked the ancient ideal of the rule of law to keep a necessary but potentially abusive government in check.
Tales of thoughtful people working out intelligent solutions to difficult problems are not, I know, everyone’s idea of a good read. I bet that candidate who imagined himself battling for liberty and against bureaucracy prefers more dramatic fare. Still, I think the story of how Americans reconciled bureaucracy and the rule of law might appeal to residents of that small Michigan town, once they remember that the same department of environmental quality that sometimes balks at wing dams also preserves the water, land, and air on which their economy and way of life depend.
Featured image credit: ‘Alexis de Tocqueville’ by Théodore Chassériau, painted in 1850. Public domain via Wikimedia Commons
There is a reason that Congress’s post-election meetings are called “lame duck” sessions. They often aren’t pretty. Senators and representatives not returning to Congress (because they retired or were defeated for re-election) may not have strong incentives to legislate responsibly. Senators and representatives who will be part of the new Congress starting in January may feel that the lame duck session is an imposition on them since they will be returning to Washington in the new year.
Nevertheless, it is sometimes possible for “lame duck” convocations of Congress to be productive. Some observers, for example, thought that the legislative session following the 2010 election was constructive. Among other accomplishments, that session of Congress abolished Don’t Ask-Don’t Tell and extended President Bush’s tax cuts – though, of course, opponents of those decisions would have preferred that Congress hadn’t legislated on these matters.
Can the “lame duck” congressional session following the 2014 election be productive? In the hope that it can be, I suggest that the 113th Congress enact in its final days the Multi-State Worker Tax Fairness Act, previously known as the Telecommuter Tax Fairness Act.
The Multi-State Tax Worker Tax Fairness Act has been introduced in the House by Representatives Himes, DeLauro, and Esty as H.R. 4085. In the Senate, the Act has been introduced as S. 2347 by Senators Blumenthal and Murphy.
The Act is aimed at the pernicious tax practice by which New York (and other states) impose income taxes on nonresident telecommuters for days such telecommuters work at their out-of-state homes and never set foot in the Empire State. New York’s extraterritorial taxation results in double taxation of nonresident telecommuters as New York taxes the income earned on these days while the state in which the telecommuter lives and works legitimately taxes this day also since the home state is providing public services to the telecommuter on the day she works at home.
Telecommuting is growing because, in a modern economy, it can entail significant benefits. Telecommuting extends job opportunities to individuals for whom traditional commuting is difficult, for example, the disabled, parents of small children, persons who live far from major employment centers. Telecommuting is also good for the environment, reducing the carbon footprints of employees who spend some of their work days at home and need not physically commute to work on those days.
Our concerns about Ebola reinforce the benefits of telecommuting. In an earlier time, a firm combating contamination simply had to shut its operations. Today, modern technology – the internet, email, cell phones, social media – can instead permit individuals to work and communicate with each other from their homes.
The benefits of interstate telecommuting explain why a diverse coalition supports the Multi-State Tax Worker Fairness Act to avoid double state income taxation of telecommuters on their days they work at home. Among the groups supporting the Act are the American Legion, the Christopher and Dana Reeve Foundation, the National Taxpayers Union, The Small Business & Entrepreneurship Council, the Association for Commuter Transsportion, The Military Spouse JD Network, and the Telework Coalition.
It is, in short, anomalous for New York to double tax the income of nonresident telecommuters on the days such telecommuters work at their out-of-state homes and never enter the Empire State. New York engages in this double taxation throughout the country. In one instructive case, New York taxed Mr. Manohar Kakar of Gilbert, Arizona on the income he earned working at home in the Grand Canyon State. New York engages in such double taxation despite the long-term costs to New York of chasing from its borders firms which embrace interstate telecommuting. Thus, the Multi-State Worker Tax Fairness Act would be good, not just for telecommuting, but for New York itself by encouraging firms which rely on out-of-state telecommuters to stay in the Empire State.
The upcoming “lame duck” session of Congress might fit the dominant pattern of post-election convocations of the House and Senate which accomplish little. But maybe not. If members of the 113th Congress choose to spend their final days in office productively, a productive place to start would be the Multi-State Worker Tax Fairness Act. Passing the Act would be good for the country by making state income tax systems safe for interstate telecommuting.
In 2007, the UK Parliament passed the Legal Services Act (LSA), with the goal of liberalizing the market for legal services in England and Wales and encouraging more competition—in response to the governmentally commissioned ‘Clementi’ report finding the British legal market opaque, inflexible, overly complex, and insulated from innovation and competition.
Among other salient provisions, the LSA authorized the creation of ‘Alternative Business Structures,’ permitting non-lawyers to take managerial, professional, and ownership roles, and explicitly opening the door to law firms raising capital from outside investors and combining with other professional services firms—even listing publicly on a stock exchange. All this has made the UK’s £25-billion/year legal marketplace “one of the most liberalized in the world,” according to the Financial Times.
Our question for today is whether this bracing demolition of guild-like protectionist rules will stop at the English coastline—more specifically, whether it will leap the North Atlantic to the US, the single largest legal marketplace in the world by far, now just north of $250-billion (£150-billion) per year. It would be the irresistible force meeting the immovable object.
Two predictions may be made without fear of contradiction.
First is that the American Bar Association (ABA), with its 400,000 members, will resist any incursions into US lawyers’ monopoly over legal services with every weapon at their disposal short of, perhaps, violence. A core function of the ABA is promulgating the “Model Rules of Professional Conduct,” which have the force of law in 49 states. ABS’s would flatly offend Rule 5.4(a), prohibiting fee-sharing with a non-lawyer, and 5.4(d), prohibiting practicing in any organization where a non-lawyer owns an interest.
We know ABA opposition will be fierce because it happened once before. In 2000, the ABA’s governing House of Delegates entertained a proposal to amend the ethical rules to permit “multidisciplinary practices” (consider them the functional equivalent of the UK’s ABS’s). This went down to “crushing defeat” as the state bars of Illinois, New Jersey, New York, Florida, and Ohio joined in “strident” denunciation of the heresy of fee sharing and vehement “reaffirmation of the core values of the law of lawyering.”
The horrified opposition cited fears of the invasion of the profession by predatory investors prepared to sacrifice clients on the altar of profits. Adam Smith – or for that matter Peter Drucker – might be skeptical of the long-run viability of a business premised on putting its clients last, but be that as it may, I’m reminded of the remark by American Lawyer editor-in-chief Aric Press some years ago that the magazine’s creation of the notorious profits-per-partner scorecard for law firms “did not introduce the profession to greed.”
Lest you believe the world might have moved on in the intervening decade and a half, and that we have learned guilds tend to collapse of their own sclerosis by now, permit me to disabuse you of that hope. Earlier this year the state bar of Texas issued a binding opinion that law firms there may not include the terms “officer” or “principal” in the job title of non-lawyer employees. “Don’t mess with Texas,” indeed.
Finally, note that the states leading the charge here are six of the ten largest in the US, comprising nearly one-third of the country’s total population. Their opposition will not be trifling: They have ground troops.
My second prediction: A barrier which will effectively halt the flow of money and ideas at any essentially arbitrary line—such as a national border—has yet to be invented. If you doubt this, I refer you to the extended and unblemished track record of abject failure in US attempts to control or limit political campaign financing.
If globalization stands for anything, it is the accelerating movement of capital, people, and ideas across jurisdictional borders – movement which, despite hiccups and speed bumps, is becoming steadily more frictionless and irreversible. In the case of Law Land, this would mean a UK-based ABS coming to our shores (and I devoutly hope their beach-head would be little old New York – I want a front-row seat to this brawl) with a checkbook and an appetite for expansion.
The moment the announcement is made, I predict that two inter-related dynamics would begin playing themselves out.
First, managing partners of US-based firms would go through the famous stages of grief: denial, anger, bargaining, depression, and ultimately acceptance. Acceptance here could only translate into a demand for a “level playing field” for their firms. Since, then as now, they presumably will lack the votes in Parliament to repeal the LSA, that would mean adopting a functional equivalent – permitting MDP’s – here in the US. And a level playing field is, after all, a bedrock imperative of fairness. They would be making a nice argument.
Second, someone would sue. It matters not whether it be the ABS suing for permission or an aggrieved US lawyer suing for prohibition; a “real case or controversy” would be presented for adjudication. I’m not going to practice antitrust or constitutional law in these pages, but my strong intuition is that a challenge to the bar prohibitions on non-lawyer involvement would prevail on a combination of antitrust and commerce clause claims (the “commerce clause,” Article I, §8.3 of the US Constitution, prohibits unduly burdensome state interference with interstate commerce, and since at least the era of the New Deal it has been given extraordinarily wide reach).
But the outcome really shouldn’t be determined by tidy legalities. At root, it should come down to a socioeconomic and ethical choice driven by which of these views of the legal profession is on the right side of history.
Do we prefer the cozy walled precincts of the guild, righteously defending its economic rents under the cloak of claims of “the best interest of the client,” “confidentiality,” “privilege,” and so forth? Or do we prefer Schumpeter’s, or Silicon Valley’s, bracing call for “creative destruction,” as messy and fraught with failed experiments as we can be sure it will be?
I certainly know where my heart lies, and it’s with the best interests of the client truly and rightly understood. Unleash the market’s Darwinian selection process.
The years 2013 and 2014 mark the tercentenary of the peace settlement that put an end to one of the major and most devastating wars in early-modern European history, the War of the Spanish Succession (1700–1713/1714). The war erupted after the death without issue of the last Habsburg king of Spain, Charles II (1665–1700). Charles’s death triggered a violent conflagration of the European diplomatic system, which the major rulers of Europe had anticipated with dread but had proven incapable of averting.
When the sickly Charles II assumed the throne of Spain as a four-year-old in 1665, the problem of his succession already troubled the mind of many a European prince. The riddle of the future of the vast Spanish Monarchy — which contained among other territories Naples, Milan, the Southern Netherlands, and the colonies in Latin America and Asia — had the potential of disrupting the fabric of Europe and was a question of vital interest to all the powers of Europe. The possibility that the Spanish Monarchy might fall into the hands of another great power led France, Great Britain, and the Dutch Republic to enter into two partition treaties (22 CTS 197 and 22 CTS 471) in the interests of peace.
However, just before his death in November 1700, Charles II frustrated those hopes for lasting peace by making a new testament in which he (1) dictated that the Spanish Monarchy had to remain one and indivisible, (2) appointed Philip of Anjou, grandson of Louis XIV of France, to be his universal successor, and (3) stipulated that if Louis XIV rejected the succession, it would pass to Archduke Charles of Austria. Philip of Anjou’s assumption of the Spanish throne as Philip V (1700–1746) (as well as a series of French provocations) resurrected the grand alliance of Britain, the Dutch Republic, and the Austrian Habsburgs that had fought France in the Nine Years War. By 1702, the War of the Spanish Succession was in full flow and was to continue for more than a decade longer.
After having reached a secret, preliminary agreement with Versailles in late 1711, London forced its reluctant Dutch allies to convene a universal peace conference, which met at Utrecht in early 1712. After more than a year of further negotiations – most of which took place at a bilateral level between and in London and Versailles – on 11 April 1713, the first major peace treaties were signed at Utrecht (most important of all, that between France and Britain, 27 CTS 475). As had been the case at other ‘universal’ peace conferences before, peace was concluded not in one multilateral instrument, but through a series of bilateral peace treaties, some of them supplemented by a treaty of Friendship, Commerce and Navigation. On 13 July 1713, the peace treaties between Spain and Britain (28 CTS 295) as well as between Spain and Savoy (28 CTS 269) followed. Between then and February 1715, some additional treaties were concluded at Utrecht. Meanwhile, Louis XIV also reached peace with the Austrian Habsburgs at Rastatt on 6 March 1714 (29 CTS 1) and with the Holy Roman Empire at Baden on 7 September 1714 (29 CTS 141).
Through the Peace of Utrecht/Rastatt/Baden, the Spanish Monarchy was divided. While Philip V retained Spain and the Spanish colonies, the Italian and Belgian possessions for the most part went to the Austrian Habsburgs. But the crucial piece of the puzzle was the agreement that the French and Spanish monarchies would never be united under one person. Thereto, Philip V had to cede all his rights to the French throne, while the princes in line for the French and Spanish succession after him had to cede their rights to the Spanish throne.
Utrecht’s greatest claim to fame in the history of international law is the textual inclusion of the principle of the balance of power in the text of some peace treaties. Article 2 of the Hispano-British Peace of 13 July 1713 (28 CTS 295) literally stipulated that peace in Europe could only be sustained if the balance of power were preserved. Therefore, the union of the crowns of France and Spain could never be condoned and had to be excluded for the future. The article incorporated the different charters of cession of Philip V and the French princes, as well as their acceptance by Louis XIV. The article was based on similar clauses in the treaties of 11 April 1713, which did, however, lack a direct reference to the balance in the body of the article. But they also incorporated the same charters, all of which held such a reference.
It has been said by international lawyers that the introduction of the balance of power in the Utrecht Peace Treaties promoted it into a foundational principle of the positive law of nations. Others have pointed at the scarcity of references to balance of power in later treaties of the 18th century.
It is indeed remarkable that direct references to the balance of power in 18th-century treaties remain relatively rare and in almost all cases relate to matters of dynastic succession. The concrete legal implications of adopting the balance of power as a principle of the law of nations may indeed have been restricted to superseding the normal order of dynastic succession in a few cases but in the Europe of the 18th century this was a change of the greatest order. Since the rise of the dynastic ‘states’ in the late 15th and 16th centuries, claims to dynastic legitimacy to rule over certain territories formed the underlying fabric to the political and legal order of Europe. These were based on an amalgamation of feudal, canon and imperial law, historic rights, dynastic inheritance, conquest, and cession by treaty. Much of these lay embodied in the rules of succession that held together most states – which were in fact personal unions of different realms – and were constitutive and constitutional to that state. The supersession of these rules was nothing less, as Dhondt has convincingly argued (Frederik Dhondt, ‘From Contract to Treaty. The Legal Transformation of the Spanish Succession 1659–1713’, Journal of the History of International Law, 13 (2011) 347–75), than the transformation from a legal order based on legitimacy and at times ‘universal monarchy’ to a horizontal order based on treaties and agreement.
This new order assumed recognition of common responsibility for the ‘security and tranquillity of Europe’ – a much repeated catchphrase in late-17th and 18th-century treaties – and a special role of the great powers. Between 1713 and 1740, France and Britain would assume this responsibility by forming an objective alliance to uphold the Utrecht compromise. It is here that lurk the older roots of the modern system of collective security as a trust of the great powers.
Headline image credit: Allegory of the Consequences of the Peace of Utrecht by Paolo de Matteis. Public domain via Wikimedia Commons
Thomas Jefferson is often quoted as remarking; “he who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me.” His sentiments, while romantic, do not necessarily express a view that many companies, authors, and artists would agree with when it comes to protecting their intellectual property today. For businesses and individuals alike, it has become of increasing importance to defend expressions of creative ideas with trademarks, patents and copyrighting, especially in the digital age where sharing and reproducing images, music, text and art has become so easy and prevalent. Intellectual property law aims to protect artistic output and the expression of ideas, whilst maintaining an environment where creativity can still blossom. However, even some of the world’s biggest names in business have been caught up in intellectual property cases that have not only made world news, but have come to define how we view our intellectual property rights. Here is a run-down of some of the highest profile cases where companies and individuals have gone to court to protect their intellectual property:
A&M Record Inc v Napster Inc
In 2000, one of the most famous cases in intellectual property law was taken to the U.S. Court of Appeals, 9th Circuit, when a group of major record labels took on Napster, Inc. The music file-sharing company, set up by then 18-year old Northeastern University student Shawn Fanning and his partner Sean Parker, was a revolutionary piece of sharing software, which allowed users to share any number of music files online. At its peak the software had around 20 million users sharing files peer-to-peer. A&M Records, along with a list of 17 other companies and subsidiaries accused Napster of copyright infringement, for allowing users to search and download MP3 files from other users’ computers. Rock band, Metallica and hip hop star Dr Dre also filed separate cases against the sharing software company. These cases led to a federal judge in San Fransisco ordering Napster to close its free file-sharing capacities. After the judge’s decision, the company eventually declared bankruptcy before re-emerging as a paid online music service, while German Media Corporation Bertelsmann AG ended up paying $130 million in damages to the National Music Publisher Association, after propping Napster up during its financial decline. This case is remembered as a defining case of the 21st century, as it was one of the first to address the impact peer-to-peer file-sharing online could have on copyright.
Baigent & Leigh v Random House Group Ltd
The enigmatic story of Jesus’ fathering of a child with Mary Magdalen, and in doing so creating a bloodline that exists to this day, is not just a fictional tale that exists in Dan Brown’s bestselling book, The Da Vinci Code. It has also been the subject of deep historical research carried out by Michael Baigent and Richard Leigh who, along with author Henry Lincoln, wrote the non-fiction work The Holy Blood and The Holy Grail. Baigent and Leigh took issue with Brown’s novel, claiming that the storyline was borrowed from their historical research. After a lengthy court case against Random House Group (who also happen to have published the claimants’ book), the two authors lost their copyright infringement case. The judge ruled that while six chapters of The Da Vinci Code took much of their narrative from Baigent, Leigh and Lincoln’s research, Brown was not guilty of copyright infringement, since the ideas and historical facts were not protected by copyright. After a failed appeal in 2001, the two claimants had to pay legal bills of approximately £3 million.
Kellogg Co. v National Biscuit Co.
In a landmark 1938 case, world famous cereal brand Kellogg bested their rivals, the National Biscuit Company, over the manufacturing of a shredded wheat product which the National Biscuit Company claimed presented unfair competition to one of their products. The claimant objected to Kellogg’s use of the term “shredded wheat” to market their cereal, adding that there was too much of a similarity between Kellogg’s “pillow-shaped” cereal and their own shredded wheat product. Kellogg was allowed to continue their manufacturing of shredded wheat under this name and shape by Judge Brandeis, who rejected the National Biscuit Company’s argument under the premise that the shape was “functional”, while the name “Shredded Wheat” is simply descriptive, and therefore un-trademark-able. Judge Brandeis’ decision remains central to the U.S. statutory test for whether a name should remain un-trademarked because it is generic or descriptive.
Louis Vuitton Malletier S.A. v. Haute Diggity Dog
Fashion house Louis Vuitton had a dog day when they decided to sue a Nevada-based pet product company, Haute Diggity Dog in 2007. The handbag maker, known around the world for its signature-branded luggage, filed a case against Haute Diggity Dog for trademark, trade dress and copyright infringement over a line of parody products entitled “Chewy Vuitton”. The defendant also reportedly had lines of products that played on the names of other international fashion brands, including “Chewnel No. 5” and “Sniffany & Co.” In a surprising move by the U.S. Court of Appeals, 4th Circuit, it was ruled that the Haute Diggity Dog products consisted of a successful parody, meaning they had not infringed on Louis Vuitton copyrights or trademarks. The court considered that the products were distinctly differentiated from Louis Vuitton products, and sought to convey a message of entertainment and amusement. It was also considered whether or not the “Chewy Vuitton” products could be confused in any way for Louis Vuitton products; a suggestion that was rejected by the court.
Dwight D. Eisenhower described leadership as “the art of getting someone else to do something you want done because he wants to do it.” Eisenhower was a successful wartime general and president. What made him successful? It was not a full head of hair and a fit physique, two of the physical traits of a CEO. What made him an unsuccessful university president? Was it luck or skill, or his social interactions with those he led?
There are many theories on what makes a leader effective, where effective leaders go, and whether leaders are born or created, but little empirical work. We cannot run a field experiment to study leadership of an organization in a high-stakes setting. Empirical tests of leadership theories have to come from quantitative studies of leaders and organizations, but large, longitudinal datasets on CEOs and companies are rare. A unique longitudinal data set on Union Army soldiers augmented with information on the regiment level provides a testing ground for leadership theories. This sample (available at uadata.org), created from men’s army records and linked to their census records, is the most comprehensive longitudinal database in economic history. It has been used to study the economics of aging (Costa 1998) and the role that social capital plays in people’s decisions (Costa and Kahn 2008). The data contain information on men’s promotions and demotions, their jobs during the war, their socioeconomic and demographic information at enlistment, and their jobs and locations after the war.
Who became a leader and what made leaders effective? The more able, i.e. the literate and men who were in higher status occupations, were more likely to become officers. So were the tall and the native-born. There were benefits to being an officer – higher pay and lower odds of death, both on and off the battlefield. Game theoretic models of leader effectiveness have emphasized that one way to elicit effort from followers is to lead by example. Although on average commissioned officers did not imperil themselves in battle, when they did, it was an effective strategy in creating a cohesive fighting unit. Company desertion rates were lower for companies in which the regimental battlefield mortality of commissioned officers relative to enlisted men was higher.
After the war leaders moved to where their talent would have the highest pay-off, as predicted by economic models of sorting. The former sergeants and commissioned officers were more likely than privates to move to larger cities which provided higher wages and greater diversity in the dominant economic activity of the time, manufacturing. Even men who started in low status occupations in cities were able to climb the occupational ladder.
Are leaders created or born? The Army, and a large management literature, stresses that leaders have character, presence, and intellectual capacity. In contrast, economic theory emphasizes the management skills that can be learned. Union Army soldiers who missed being promoted because casualty rates were relatively low in their companies were likely to be in a large city after the war compared to men who were promoted, suggesting that in the long-run leaders are created. One of the skills learned in the army may have been to be a generalist. Sergeants and commissioned officers with more than strict military tasks while in the army were more likely to be in large cities.
A Civil War context for testing theories of personnel economics may be unusual. The 150th anniversary of the Civil War has focused more on historical research and re-enactments. But if a stress test of theories is their explanatory ability in very different contexts, academic personnel economics does very well.
Headline image credit: Field Band of 2nd R.I. Infantry. Photo by Mathew Brady. War Department. Office of the Chief Signal Officer. Brady National Photographic Art Gallery. US National Archives and Records Administration. Public domain via Wikimedia Commons.
On 31 December 1941, August Vollmer hosted the first meeting of the National Association of College Police Training Officials at his home. The organization initially focused on developing standardized curricula for university-based policing programs, but soon expanded its scope to include the more general field of criminology. In 1958, the American Society of Criminology (ASC) name was officially adopted.
O.W. Wilson, himself a prominent figure in modern policing, perhaps summed up Vollmer’s influence best in a 1953 article in the Journal of Criminal Law and Criminology: “August Vollmer, police administrator and consultant, student, educator, author, and criminologist, will be recorded in American police history as the man who contributed most to police professionalization by promoting the application of scientific principles to police service.”
While Vollmer’s focus on science was largely on forensic and physical sciences, in part because of a lack of social science research on the police at the time, he was one of the first to recognize that the police could partner with scientists and other outsiders to increase their effectiveness and efficiency. He embodied the idea of infusing policing with research and scientific knowledge that is the hallmark of efforts to make policing more evidence-based today.
We can only speculate on how Vollmer would run a police department today. But based on his strong belief that officers should be well-educated and exposed to the latest research findings through extensive training throughout their careers, we might assume he would embrace close collaboration between police and social scientists and the use of findings from rigorous studies to guide police practice. Today, our evidence base outside of the hard sciences is far larger. The Evidence-Based Policing Matrix, for example, includes nearly 130 methodologically rigorous studies of the crime control effectiveness of policing strategies.
As O.W. Wilson’s quote suggested, Vollmer not only incorporated research into policing, but he also was one of the first to straddle the line between science and practice through his work as a police chief and university professor. Vollmer’s interest in the link between universities and policing inspired that New Year’s Eve meeting in 1941, which eventually led to the formation of the ASC, now the largest professional organization devoted to criminology in the world.
The initial close link between the ASC and police education quickly dissipated, however. Many of the police practitioners and professors initially involved in the creation of the ASC began to feel as though the organization had become too sociological and concerned with questions of crime causation and uninterested in police practice. As Willard Oliver describes in his History of the Academy of Criminal Justice Sciences (ACJS), the International Association of Police Professionals was established by former ASC members in 1963 to focus more on police education. The organization eventually expanded its focus to the entire criminal justice system and took on its current name of ACJS. Thus, while Vollmer was instrumental in the creation of the ASC, his followers soon abandoned the organization in favor of ACJS. As a result, police practitioners have traditionally been more involved in the Annual Meetings of the ACJS, which has had a section on policing for more than 20 years.
Recently, a group of scholars and practitioners brought together by Cynthia Lum of George Mason University have begun the critical work of highlighting policing as an important part of criminology and the ASC. In May of this year, the ASC approved a new Division of Policing, with membership open to any ASC member. We encourage members to consider joining the Division when renewing (or beginning) their ASC membership for 2015.
As Anthony Braga, Cynthia Lum, and Edward Davis described in a recent article in The Police Chief, a major goal of the Division is to build strong partnerships between police and researchers that will ideally increase the number of completed research studies and improve translation of research findings into police practice. The Division thus marks a return to the roots of the ASC and Vollmer’s vision of a policing profession consistently using the best science and research to guide policy and practice.
Even without a formal Division in place, policing presentations have become a major component of the ASC conference. A guide to policing sessions of interest at the Annual Meeting next week includes more than 120 panels with policing presentations. This number should only increase in future years with the Division’s efforts, and ideally the number of police practitioners presenting at ASC will increase exponentially.
We invite everyone attending the 70th Annual Meeting of the American Society of Criminology to join us at the inaugural event for the Division of Policing to be held 20 November 2014 from 4:00-5:30pm.
The event will include opening remarks from San Francisco District Attorney and former Police Chief George Gascón. Wesley Skogan of Northwestern University will then provide a brief history of police research and introduce a distinguished group of police researchers and practitioners who will each speak briefly about their vision for the future of policing research.
It seems especially appropriate that this kick-off event for the Division will take place at the Marriott Marquis San Francisco, less than 15 miles away from 923 Euclid Avenue in Berkeley, Vollmer’s former home and the birthplace of the ASC.