JacketFlap connects you to the work of more than 200,000 authors, illustrators, publishers and other creators of books for Children and Young Adults. The site is updated daily with information about every book, author, illustrator, and publisher in the children's / young adult book industry. Members include published authors and illustrators, librarians, agents, editors, publicists, booksellers, publishers and fans. Join now (it's free).
Login or Register for free to create your own customized page of blog posts from your favorite blogs. You can also add blogs by clicking the "Add to MyJacketFlap" links next to the blog name in each post.
Viewing: Blog Posts Tagged with: Law, Most Recent at Top [Help]
Results 1 - 25 of 372
How to use this Page
You are viewing the most recent posts tagged with the words: Law in the JacketFlap blog reader. What is a tag? Think of a tag as a keyword or category label. Tags can both help you find posts on JacketFlap.com as well as provide an easy way for you to "remember" and classify posts for later recall. Try adding a tag yourself by clicking "Add a tag" below a post's header. Scroll down through the list of Recent Posts in the left column and click on a post title that sounds interesting. You can view all posts from a specific blog by clicking the Blog name in the right column, or you can click a 'More Posts from this Blog' link in any individual post.
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.
If you would like to view this infographic as an interactive PDF, please click here to discover more about Competition Law.
Headline image credit: Justice Painting, by Hans. Public domain via Pixabay.
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.
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.
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.
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
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.
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.
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
The Police and Criminal Evidence Act 1984 (PACE) and its Codes of Practice entrench the legal basis for police powers in England and Wales. A thorough and practicable knowledge of PACE is essential to an understanding of policing – but how well do you know it?
Many have trouble bridging the distance between the often abstract terminology from PACE, its subsequent amendments, and legislative changes — including the Prevention and Investigation Measures Act 2011, the Protection of Freedoms Act 2012, and the Legal Aid Sentencing and Punishment of Offenders Act 2012 — and common, everyday scenarios facing police officers. Stop and search, detention and interviews, and other everyday procedures and requirements of policing may be lost. So let’s test your knowledge of PACE.
We are pleased to introduce the marketing team for the Commercial Law department at OUP. Chris, Simon, and Miranda work with journals, online resources, and books published on a variety of subjects which relate to the rights and practice of people in business. The resources they work with are used by practicing lawyers, academics and students, and cover a range of topics including competition law, energy, arbitration, and financial law. Get to know more about them below:
What is your role in OUP’s Commercial Law department?
I’m Chris, the Marketing Manager for Commercial Law. I plan, implement, and execute marketing strategy for Oxford’s Commercial Law portfolio.
What is the best part of your job/highlight of working at OUP?
The people you get to work with are so much fun. There are some incredibly bright and talented people at Oxford, and I love making our authors and customers happy – that is a really great part of the job. Also, the variety – working in marketing at OUP means you get to try new and different things all the time, it’s a truly interesting place to work, and an exciting time to be in marketing.
Which three songs could you not live without?
Song for Zula – The Phosphorescent
Dream the Dare – Pure Bathing Culture
On the Sea – Beach House
What’s your favourite place in Oxford?
There are so many lovely places around Oxford, including Jericho, Cowley and the colleges, but my favourite place would have to be the walk round Christchurch meadow.
What is your favourite fiction book and why?
I have lots of favourites, it’s difficult to pick just one! I’m a huge fan of James Joyce so will pick one of his – A Portrait of the Artist as a Young Man. It’s debatable how fictional it is, but the language is incredible. Or Villette.
If you were in a Hogwarts house, which would it be?
I’d like to think it would be Gryffindor, but in reality it would probably be Ravenclaw.
What is your role in OUP’s Commercial Law department?
I’m the Marketing Executive for Commercial Law and work mostly on our book products, though I do also pitch in with our online products and journals.
What is the best part of your job/highlight of working at OUP?
The best part of working at OUP is definitely the people here. I’ve made a lot of friends and there are loads of friendly and creative people around (especially in marketing!). The best part of the job is the diversity. We have a lot of products and types of products, and we’re doing more and more exciting things with digital, content, and social marketing to promote them. We also still get to attend events and meet our authors and other lawyers.
What’s your favourite place in Oxford?
My favourite place in Oxford is the top of the hill in Raleigh Park for two reasons. One: I think the best view of Oxford is from above, with all the spires, domes, and old buildings. Two: I only ever go there when I’m out running and it means the rest of my run is downhill!
Who is the most famous person you’ve met?
I once walked into Paloma Faith on The Strand (not intentionally).
Which three songs could you not live without?
The End – The Doors
Mine for the Summer – by my friend Sam Brawn
Gone – Kanye West
Do you have any hidden talents?
Yes, but I’ve forgotten where I hid them.
If you were in a Hogwarts house, which would it be?
Hufflepuff, because the name amuses me.
What is your role in OUP’s Commercial Law department?
I am the newest member of the team, and recently started as the Marketing Assistant for the Commercial Law department.
What’s your favourite place in Oxford?
I’ve only just moved to the city, and it’s such a beautiful place it would be difficult to choose somewhere as a favourite. However, when I’m not hanging out with daffodils, I am a sucker for a good bar or pub, and there are some great places in the Jericho area of Oxford to mooch between!
What is your favourite fiction book and why?
My favourite book is The Time Traveler’s Wife by Audrey Niffenegger, simply because I think it’s the perfect novel. I love how the book uses different perspectives through diary entries and a jumbled up time scale. It combines science fiction with a love story; it has violence; it has time travel; it has romance… what more could you want?
Who is the most famous person you’ve met?
I once met Judy Dench (Dame) in Disney Land Paris, she was all in white and looked very stern, but we spoke to her and she was lovely!
What is your biggest pet peeve?
When people have a first name for their last name… you can’t trust those people.
Which three songs could you not live without?
Ain’t no mountain high enough – Marvin Gaye and Tammi Terrell
Take me to church – Hozier
Say you’ll be there – The Spice Girls (no shame)
If you were in a Hogwarts house, which would it be?
I’d be in Slytherin, because green is my colour and just like Draco and Snape, beneath my cold, evil-seeming exterior, I actually do have a heart.
Featured image credi: Lady Justice, at the Old Bailey, by Natural Philo. CC-BY-SA-3.0 via Wikimedia Commons.
What is jihad? What do fundamentalists want? How will moderate Islamists react? These are questions that should be discussed. We may not have easy answers, but if we don’t start a dialogue, we may miss an opportunity to curtail horror.
The film Timbuktu from African director Abderrahmane Sassako about his native country serves as a needed point of departure for discussion — in government, in schools, in boardrooms, and in families.
Jihadism and terrorism are the 21st century’s “-isms,” following the horrors of fascism and communism. In hindsight, we wonder if we could have prevented the horrors of the 20th century. The devastating results have taught us that people do not want war; they want to live and work in peace. Should we not learn from history’s mistakes and prevent future genocides?
In the name of jihad, innocent victims are beheaded, kidnapped, raped, tortured, terrorized, left without families, and without homes. Extremist Muslims wage war against Christians and Jews, and against other Muslims (Sunnis vs. Shiites). Havoc is occurring in Syria, Iraq, Lebanon, Gaza, West Bank, Mali, Sudan, etc. It may soon take hold of our cities where jihadists threaten to set up terrorist cells.
Powerful and courageous, Timbuktu mesmerizes us with its blend of colors and music amidst a gentle background of sand dunes. Yet, juxtaposed to the serene beauty of Mali’s nature is the ferocious narrative of men turned into animals, forcing their machine guns on the quiet people of Timbuktu. We bear witness to the atrocious acts of barbarism.
Based on a true story when jihadists took over northern Mali in 2012, Sassako gives us a mosaic of characters who represent multi-cultural Africa. The camera takes us directly into their tragedies using a cause and effect structure:
We see a fisherwoman who refuses to wear a veil and gloves, for how would she be able to see or pick up the fish she must sell? Her rebellion, despite her mother’s pleas and the jihadist threats, is frightening.
Several friends play the guitar and sing together in the quiet of their home. The result? They are arrested and stoned to death.
A boy has a soccer ball, and accidentally the ball rolls down steps and through sand dunes to fall in front of several jihadists. The punishment? 40 lashes.
A caring man defends his young shepherd when their cow is killed. The outcome? A fight and the destruction of a family.
The leader of the community, the imam, tells several jihadists to leave the mosque with their guns and boots. People are praying. He warns them that Allah does not want destruction or terror. We fear the imam’s end.
These characters are not abstract; they are real victims. We follow their story, care for them, empathize with their pride, and suffer with their courage.
The contrast between good and evil, beauty and terror, are presented in alternating scenes and play havoc with our emotions. Sometimes we want to close our eyes as the evil becomes unbearable; we fear what horror will follow.
Sassako is a master storyteller and painter of landscape. His color palette holds our eyes as our hearts cringe at the story. Beautiful moments linger amidst savage reality. We see ballet in the scene when a dozen young men play soccer without a soccer ball. How graceful is their athletic movements and how deep their pleasure. We are mesmerized, and at the same time, we are panicked to think what the next scene will bring. The film’s power comes from its majestic beauty – a beauty that we fear cannot exist with the evil we are watching.
Sassako parallels the opening scene with the final scene. The film begins showing an elegant deer running through the soft dunes. It ends with the same scene, but the animal is replaced by the twelve-year-old heroine who runs desperately through the same dunes as she tries to escape her tragic reality. Sassako’s circle is a vicious cycle with no end to crimes against humanity.
Timbuktu is a difficult film to watch because it depicts a possible future that no one wants to see: genocide. All the more reason to see this film now.
The fatal shooting of African-American teenager Michael Brown, in Ferguson, Missouri during a police altercation in Augusts 2014, resulted in massive civil unrest and protests that received considerable attention from the United States and abroad. To gain further perspective on the situation in Ferguson and its implications of race relations in America, I spoke with Wayne A. Santoro and Lisa Broidy, authors of the article “Gendered Rioting: A General Strain Theoretical Approach” published in Social Forces. This articles is freely available for a limited time.
Why do you think there has been so much media attention on the situation in Ferguson following the Michael Brown shooting?
Police shootings and mistreatment of black citizens is not, unfortunately, an uncommon experience in the United States. Protests like street marches have become so routinized that at best they get covered in the back pages of the local newspaper. But what no one can ignore are protests that turn violent. Whether we call them riots or rebellions, they are front page news. They are dramatic and unpredictable, threaten life and property, and capture the media’s attention. Policymakers cannot ignore them. After all, it is not every day that a state governor calls out the National Guard to maintain law and order. And whether the public views the protestors in a sympathetic or unsympathetic manner, we are mesmerized by the ongoing drama. How long will the rioting last? How will law enforcement respond? What will be the cost in lives lost and property destroyed?
Why do you think that the shooting of Michael Brown sparked protest by citizens? What was unique about the circumstances in Ferguson, or the Michael Brown case?
Four factors stand out, some unique to the incident and to Ferguson while others are more typical. First, the single best predictor of black riots is police shootings or abuse of blacks by police. Indeed, in our research we find that a particularly strong predictor of joining a riot is having experienced police mistreatment personally. Police harassment is the spark that ignites protests that turn violent. This was a central conclusion of the famous 1968 Kenner Commission that studied black rioting in the late sixties.
Second, blacks in Ferguson have long complained about police harassment. Numerous blacks in Ferguson have recited to the media past experiences with police mistreatment. One resident recalled how he was roughed up by the police during a minor traffic stop. Another spoke of how she called the police for assistance only to have the police arrest her upon arrival. There was an incident in 2009 where a black man accused officers of beating him and then found out that he was subsequently charged with damaging government property by getting his blood on their police uniforms. Some of this mistreatment is suggested by data in Ferguson on race, traffic stops, and arrests.
Blacks comprise 67% of Ferguson’s population (in 2010) but account for 86% of all traffic stops by the police and 93% of all arrests resulting from these stops. Blacks are also twice as likely as white drivers to have the police search their car despite the fact that whites are more likely to have contraband found in their car. These data point to racially biased police practices. This is not unique to Ferguson, and in fact national survey data tell us that it is common knowledge among blacks that the police often act as agents of repression. For instance, in a New York Times/CBS News national survey conducted 10 days after the shooting, 45% of blacks report that they had personally experienced police discrimination because of their race (7% of whites report this experience). Similarly, 71% of blacks believe that local police are more likely to use deadly force against a black person (only 31% of whites agreed). Thus, it is a racially charged shooting of a black man within the context of widespread experiences of police racial abuse that fuel motivations for protest and the belief that the use of violence against the state is legitimate.
Third, the circumstances of the shooting matter. Was the shooting a legitimate or excessive use of police force? It is relevant that so many local blacks think that not only was Michael Brown unarmed (which is undisputed) but that he had his hands raised and was surrendering at the time of the shooting. What matters is not so much whether the “hands raised and surrendering” scenario is accurate (this likely will remain in dispute) but that so many local residents found it believable that a white police officer would shoot six times an unarmed black man trying to surrender. People believe narratives that resonate with their personal experiences and this again tells us something about what these personal experiences with the police have been.
Fourth, blacks in Ferguson have been excluded almost completely from positions of power. People protest when their voices are not being heard, and in Ferguson it appears that those who make policy decisions and influence police behavior are particularly deaf to the concerns of the black community. Referring to an incident where Ferguson officials were unresponsive to a relatively minor request, one black resident remarked “You get tired. You keep asking, you keep asking. Nothing gets done.” One arena where this exclusion is evident is in the police department. In the Ferguson police department only 3 (some report 4) of 53 commissioned officers — about 6% — are black. Recall that Ferguson is 67% black. Police departments are seldom responsive to minority communities when policy and street-level enforcement decisions are made solely by whites. Moreover, minority distrust of the police is likely when few police officers are minority. The racial power disparity is evident in elected positions as well. As Jeff Smith (2014) wrote in the New York Times, “Ferguson has a virtually all-white power structure: a white mayor; a school board with six white members and one Hispanic, which recently suspended a highly regarded young black superintendent who then resigned; a City Council with just one black member.” Access to political positions and direct influence into policymaking tend to channel discontent into institutional arenas. Protest is a marker that a population is politically marginalized. Protest is inherently a response to blocked access and influence over the political system.
To what degree is Ferguson unique as opposed to being emblematic of race relations in America?
Ferguson is more typical than atypical. There remains in the United States deep and enduring racial disparities in socioeconomic status, wealth, and well-being. No other population in the United States has experienced the degree of residential segregation from whites as have blacks. We imprison black men at a staggering rate. What the Kerner Commission stated nearly 50 years ago remains true today: we are a “nation of two societies, one black, one white – separate and unequal.” This inequality has been noted repeatedly by black residents in Ferguson who see the local governing regime as unresponsive, the police force as hostile, and the school system as abysmal. Ferguson also is typical in that it reveals how views of racial progress and incidents like the shooting of Michael Brown are racially polarized. In the New York Times/CBS News survey noted above, 49% of blacks thought that the protests in Ferguson were about right or did not go far enough — only 19% of whites held such views.
In two ways, however, Ferguson seems atypical. First, in Ferguson the growth in the black population relative to whites is a recent occurrence. In 1990, blacks comprised 25% of the city’s population but that percentage grew to 52% in 2000 and 67% in 2010. This demographic transition was not followed by a corresponding transition in black access to political positions, the police force, union representation, and the like. Sociologists speak of the “backlash hypothesis,” meaning that when whites feel threatened such as by increases in the minority population they respond with greater hostility to the “threatening” population. The recency of the demographic transition likely has altered the social and political dynamics of the city in ways that do not characterize other contemporary major cities in the United States especially those that are majority black like Detroit or Atlanta.
Second, Ferguson is unusual in the degree that the city uses the municipal court system and the revenue it generates as a way to raise city funds. Court fines make up the second highest source of revenue for the city. This created a financial incentive to issue tickets and then impose excessive fees on people who did not pay. Data bear this out. Ferguson issued more than 1,500 warrants per 1,000 people in 2013 and this rate exceeds all other Missouri cities with a population larger than 10,000 people. To put this another way, Ferguson has a population of just over 21,000 people but issued more than 24,000 warrants which add up to three warrants per Ferguson household. Writes Frances Robles (2014) in the New York Times: “Young black men in Ferguson and surrounding cities routinely find themselves passed from jail to jail as they are picked up on warrants for unpaid fines.” Thus, in Ferguson the primary interaction between many black residents and the police take place because of these warrants. Recent work on social movements has argued that such daily insults and humiliations can play a strong role in motivating people to protest, and certainly serve to undermine trust in the local police and city policymakers.
What will be the likely short- and longer-term consequences of the Ferguson protests?
Understanding how policymakers and others respond to a protest — especially one that turns violent — is complex. There is no typical response and historically one could cite examples of elites either trying to ameliorate the conditions that gave rise to the protest or responding in a more punitive manner. Nonetheless, in the short term there are reasons to think that policymakers will respond in ways favorable to the local black community by addressing some of their grievances. As political scientist James Button has written, policymakers tend to respond more favorably to riots when riots are large enough to garner public and media attention but not so severe and widespread to cause major societal disruption. This describes the Ferguson riots, unlike, for instance, the riots during the late 1960s in the United States. Moreover, policymakers who are sympathetic to minorities tend to respond in ways more favorable to minorities than less receptive policymakers. Social movement scholars refer to this as a favorable “political opportunity structure.” In the United States, the former tend to come from the ranks of the Democratic Party while the latter from the ranks of the Republican Party. Thus the fact that the Ferguson protests occurred during the Obama administration suggests a more ameliorative than punitive response, at least at the national level. It is not surprising that three times more blacks, 60% to 20%, report being satisfied rather than unsatisfied with how President Obama has responded to the situation in Ferguson.
There is some evidence that policymakers are indeed responding in ways favorable to the local black community and their grievances. For instance, Attorney General Eric H. Holder Jr. announced an independent investigation of the shooting and traveled to Ferguson to meet with investigators. Moreover, his office has started a civil rights investigation into whether the police have repeatedly violated the civil rights of residents. At the local level, some changes also are evident. The Ferguson City Council on 8 September agreed to establish a citizen review board to monitor the local police department. The city also has pledged that it would revamp its policy of using court fines to fund such a large share of its city budget. For instance, the city council has eliminated a $50 warrant recall fee and a $15 notification fee.
It is more of a leap of faith, however, to expect major long-term changes in Ferguson because of the insurgency. There remains, for instance, an on-going debate by scholars of the modern civil-rights movement (circa 1955-1968) as to whether the more than decade-long movement produced meaningful change in the lives of most blacks. If a decade of protests produced less than satisfactory change in the opinion of some, what chance do the Ferguson protests have? In particular, there is little reason to think that levels of black poverty, unemployment, underemployment, and educational disparities will improve noticeably in Ferguson unless other social forces are brought into play. These more substantive changes are more likely to be produced by years of community organizing, securing elected positions, joining governing political coalitions with sympathetic allies, and favorable economic conditions like the growth of blue-collar employment opportunities.
Have white police shootings of minorities (or African-Americans) become more or less common in recent years?
This is an empirical question and the relevant data are limited. There are no national data on police shootings that do not result in death. National data on police shootings that result in death come from three sources: the Federal Bureau of Investigations (FBI), Bureau of Justice Statistics (BJS), and the Centers for Disease Control (CDC). However, data from each of these sources are limited. The FBI collects data on “justifiable homicide” by police as a voluntary component of the Supplemental Homicide Report data collected from police departments nationwide. Unfortunately few departments (less than 5%) voluntarily provide these data, leaving obvious questions about their representativeness and utility. Moreover, even if they were complete, these data would tell us little beyond the demographics of those killed. Particularly, we cannot discern the degree to which these incidents represent excessive use of force by police. BJS collects similar data on deaths that occur during an arrest. These data are collected at the state level and then reported to BJS. Compliance is better, with 48 states reporting. But it is not clear how complete or comparable the data from each state are.
Is there anything else you think we can learn about race relations or racially motivated social movements in the United States from the case of Ferguson?
A few lessons. First, we often talk about the civil rights movement in the past tense. We think of it as something that happened; we might even debate why it “ended” and what it accomplished. But Ferguson reminds us that the struggle for racial justice continues. It is not always so newsworthy, but everyday many blacks and black advocacy organizations struggle to overcome racial barriers. Second, it underscores the deep racial divide in the United States. White and black views, especially concerning racial matters, are often polar opposite. Where whites see progress, blacks see setbacks. Where whites see black advancement, blacks see persistent racial disparities. Especially polarized are views on the criminal justice system and police. Third, there are costs to a society when a population is politically and economically marginalized. These costs may not always be apparent to outsiders nor make national headlines. But the price we pay for racial disparities is that violent protests will continue to be an enduring feature of the US landscape. The national memory of the Ferguson riots will fade only to be replaced by the next Ferguson-style protest. The question becomes what are we as individuals and as a collective willing to do to eradicate the racial inequality that motivates such protest?
Heading image: Ferguson, Day 4, Photo 26 by Loavesofbread. CC-BY-SA-4.0 via Wikimedia Commons.
The annual Foreign Direct Investment (FDI) International Arbitration Moot gathers academics and practitioners from around the world to discuss developments and gain a greater understanding of growing international investment, the creation of international investment treaties, domestic legislation, and international investment contracts.
The FDI Moot occurs over the course of six months, and includes regional rounds, which took place in August in New Delhi, Seoul, and Buenos Aires, and concludes with the global finals. Global finals venues rotate each year between Frankfurt, Malibu, Boston, and London.
The 2014 final hearing will be held 24-26 October at Pepperdine University School of Law in Malibu, California. In this phase, 48 teams from the South Asia, Asia-Pacific, Latin America, Africa, North America, Europe and the Middle East regions will compete in the global oral argument preliminary rounds followed by the quarter final, semifinal, and final rounds.
Established practitioners and academics in the international arbitration, investment regulation, construction law, and international economic law fields act as arbitrators or memorandum judges throughout the competition. The arbitrators facilitate hearings during the oral arguments while the memorandum judges assess and score memorials one month before the oral arguments. Oxford University Press will be awarding prizes for the best memorial and counter memorial.
With three days of oral arguments, this year’s FDI Moot promises to be a busy and exciting weekend. In addition, Malibu, often described as “27 miles of scenic beauty,” is surrounded by the Pacific Ocean and Santa Monica Mountains, so don’t forget to take some time to check out area attractions.
Late October, with an average high temperature of 69°F/21°C, is perfect for exploring one of Malibu’s many beaches. Check out the famous Surfrider Beach and the nearby Malibu Pier.
If you’re interested in taking a hike, plan an excursion to Point Mugu State Park, which has more than 70 miles of trails in the Santa Monica Mountains.
If you’ll be joining us in Malibu, stop by the Oxford University Press booth where you can browse our journals collection and take advantage of the 20% conference discount on all books. We’re also offering one month of free access to our collection of online law products for all attendees. Looking to brush up on the Vienna Convention on the Law of Treaties in BIT arbitrations in time for the Moot? Check out the recording of our recent Investment Claims Webinar session and accompanying slides.
To follow the latest updates about the 2014 FDI Moot, follow us on Twitter @OUPIntLaw and at the hashtags #FDI14 #FDIMOOT14, and don’t forget to like the FDI Moot Facebook page.
See you in Malibu!
Heading image: Willem C. Vis pre moot at Palacky University of Olomouc by Cimmerian praetor. CC-BY-SA-3.0 via Wikimedia Commons.
Today is United Nations Day, celebrating the day that the UN Charter came into force in 1945. We thought it would be an excellent time to share thoughts from one of their former Commissioners to highlight the work this organization undertakes. The following is an edited extract by Navanethem Pillay, former United Nations High Commissioner for Human Rights, from International Human Rights Law, Second Edition.
I was born a non-white in apartheid South Africa. My ancestors were sugarcane cutters. My father was a bus driver. We were poor.
At age 16 I wrote an essay which dealt with the role of South African women in educating children on human rights and which, as it turned out, was indeed fateful. After the essay was published, my community raised funds in order to send this promising, but impecunious, young woman to university.
Despite their efforts and goodwill, I almost did not make it as a lawyer, because when I entered university during the apartheid regime everything and everyone was segregated. However, I persevered. After my graduation I sought an internship, which was mandatory under the law; it was a black lawyer who agreed to take me on board, but he first made me promise that I would not become pregnant. And when I started a law practice on my own, it was not out of choice but because no one would employ a black woman lawyer.
Yet, in the course of my life, I had the privilege to see and experience a complete transformation in my country. Against this background it is no surprise that when I read or recite Article 1 of the Universal Declaration of Human Rights, I intimately and profoundly feel its truth. The article stated that: ‘All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood’.
The power of rights made it possible for an ever-expanding number of people, people like myself, to claim freedom, equality, justice, and well-being.
Human rights underpin the aspiration to a world in which every man, woman, and child lives free from hunger and protected from oppression, violence, and discrimination, with the benefits of housing, healthcare, education, and opportunity.
Yet for too many people in the world, human rights remain an unfulfilled promise. We live in a world where crimes against humanity are ongoing, and where the most basic economic rights critical to survival are not realized and often not even accorded the high priority they warrant.
The years to come are crucial for sowing the seeds of an improved international partnership that, by drawing on individual and collective resourcefulness and strengths, can meet the global challenges of poverty, discrimination, conflict, scarcity of natural resources, recession, and climate change.
In 2005, the world leaders at their summit created the UN Human Rights Council, an intergovernmental body which replaced the much-criticized UN Human Rights Council, with the mandate of promoting ‘universal respect for the protection of all human rights and fundamental freedoms for all’. The Council began its operations in June 2006. Since then, it has equipped itself with its own institutional architecture and has been engaged in an innovative process known as the Universal Periodic Review (UPR). The UPR is the Council’s assessment at regular intervals of the human rights record of all UN member states.
In addition, at each session of the Council several country-situations are brought to the fore in addresses and documents delivered by member states, independent experts, and the Office of the High Commissioner for Human Rights.
Today, the Office of the High Commissioner is in a unique position to assist governments and civil society in their efforts to protect and promote human rights. The expansion of its field offices and its presence in more than 50 countries, as well as its increasing and deepening interaction with UN agencies and other crucial partners in government, international organizations, anad civil society are important steps in this direction. With these steps we can more readily strive for practical cooperation leading to the creation of national systems which promote human rights and provide protection and recourse for victims of human rights violations.
In the final instance, however, it is the duty of states, regardless of their political, economic, and cultural systems, to promote and protect all human rights and fundamental freedoms. Our collective responsibility is to assist states to fulfil their obligations and to hold them to account when they do not.
In the second of our posts focusing on the Conservative’s proposed European Union ‘In/Out’ referendum, key legal figures and political commentators share their views on why Britain should stay in the European Union. Once finished, why not read the previous post on Why Britain should leave the European Union and decide which side has the more convincing argument?
* * * * *
What is best for Britain? That is the only question which both sides have been addressing in the “In/Out” debate in this country and to which they give different answers. Certainly that is a relevant question but it is not the only question which should be addressed. … We should also ask “what is best for Europe as a whole and also what is best for the world?”
One of the great achievements of the UK over the centuries has been the universalising, in part by example [and] in part by means of the European Convention on Human Rights, of its generally admired conceptions of human rights. … In consequence, the EU has these human rights as one of its foundation stones. … The steady increase of Member States of the EU and of candidate member states shows that many others value the EU and its commitment to human rights.
Systems of governance and substantive laws are not immutable and need changing from time to time. The UK should contribute in a positive fashion to these changes and to the continuing health of the EU.
– Sir Konrad Schiemann, former Judge, Court of Justice of the European Union
* * * * *
“One of the strongest reasons for staying in the EU is that quitting would be bad for our economy, as we would lose full access to the single market. Eurosceptics have tried to counter this argument by saying we could copy Norway, Switzerland, or Turkey. The snag is that none of these is a good model: Norway has access to the single market but has to follow its rules without a vote on them; Switzerland’s banks don’t enjoy access to the single market unless they relocate to places inside the EU like London; and Turkey doesn’t have access for services, which account for 80% of our economy.
“As Eurosceptics have come to realise the weaknesses of these models, they have employed a new argument: Britain is a special case. We are bigger than Norway and Switzerland, and richer than Turkey. We are, therefore, in a position to cut a better deal with the EU than any of them. Clout is important – and we certainly have more of it than Norway, Switzerland, or Turkey. But the problem with this argument is that the EU has more clout than us. Its economy would be six times our size.”
– Hugo Dixon, Editor-at-large, Reuters News, and author of The In/Out Question: Why Britain should stay in the EU and fight to make it better.
* * * * *
Before we run for the European exit we need to properly weigh up the alternatives. Those who want to do a ‘runner’ claim that the world is about to open their doors to our goods and services and that our influence will increase. I would love to see evidence of how easy it will be to swap our “disastrous” relationship with Europe for such a harmonious set of alliances with every other country around the world – as long as they are not European!
For my part I am greedy for the UK, not cautious – I want EU PLUS. I want the 500 million customers that the EU offers PLUS new trading partners and new export opportunities from across the globe.
We need have no identity crisis about our membership of Europe or feel that we are in any way diminished by sitting at the top table of the largest trading bloc in the world. We just have a lot of work ahead to help shape a new and ambitious Europe that shares our optimistic, confident, and outward-looking attitude and delivers true benefits to the British people.
– Laura Sandys, MP for South Thanet and founder, European Mainstream
* * * * *
I believe that all the most serious issues facing the world today are essentially international problems, and that none of these problems can be solved unless we continue to develop the international legal order at every possible level.
In my own field, one can refer to the problem of climate change or global warming, and the pressing need for more effective methods of control of greenhouse gas emissions. … Problems [such as these] are inherently transnational in nature, and all present insuperable challenges to individual national governments.
It is indisputable that in the European Union we have the single most advanced and successful example of an international legal order which has yet been established. … Unless we are ostentatiously to turn our backs on the world’s most serious problems, it is absolutely essential that we continue to participate in and to support this outstanding international development. Only in this way can the long-term interests of our country and our people be protected.
– Stephen Hockman QC, 6 Pump Court Chambers
* * * * *
It is unsurprising that the financial crisis should have brought back to the fore concerns about the very design of the EU’s institutional structure and issues of democracy deficit, on which there is already an extensive literature.
This is however matched by an equal dearth of literature concerning constitutional responsibility of Member States for the status quo. … It is noteworthy that the discourse concerning democracy deficit is normally presented as a critique of the EU. The EU is of course not blameless in this respect, but nor are the Member States, viewed collectively and individually. The present disposition of EU institutional power is the result of successive Treaties in which the principal players have been the Member States.
Member States bear responsibility for the choices that they have made, individually and collectively, in shaping EU decision-making. Thus insofar as there is a democratic deficit of the kind considered above responsibility cannot simply be ‘offloaded’ by the Member States to the EU. Member States cannot carp about deficiencies of EU decision-making as if they were unconnected with the architecture thus created.
Europe today is under threat from all sides. … To want to leave the European Union at such a time seems perverse. And to what end do the Europhobes – I use the word advisedly for we are all Eurosceptics to a degree – demand Britain’s exit? To wrest back national sovereignty from Brussels. Yet sovereignty is a chimera, a mirage, a will o’ the wisp. It is like a man lost in the desert: he has total control over what he does, complete freedom of action – yet he is powerless.
When he was European Commissioner, Leon Brittan said in 1989: “The concept of total sovereignty is, frankly, a dangerous delusion. Instead you have to ask on a pragmatic basis: how can I most effectively achieve what I want for my country? Sometimes the answer will be to take action at the national level. At other times it may be best to reach multilateral agreements. But there will be occasions when the right, long-term answer is to pool sovereignty with others, in order paradoxically, to achieve an objective which may be of paramount national (ital.) importance.” He was right then and his argument holds good today.
– Sue Cameron, columnist, The Daily Telegraph
* * * * *
Continued membership of the EU for Scotland (as part of the United Kingdom) remains a critical issue. Indeed, anecdotally at least, there appears to be the sort of broad consensus amongst Scottish businesses, the public sector, and civil society which has been so markedly absent from the Scottish independence debate. That consensus is firmly pro-European.
The real world considerations of a smaller economic entity such as Scotland, which is geographically remote from many of its key markets and exports proportionately more than its larger neighbour, revolve around reducing, not creating, barriers to trade.
Direct engagement with the EU operates alongside a dynamic relationship with Westminster which has seen almost annual alteration of the boundary between those areas reserved to London and those devolved to Edinburgh. … What becomes clear is not that the European Union is an unalloyed good, or that the Westminster Parliament is an unalloyed bad. The question is whether, in sum, membership of the European Union is a ‘good’ to be preserved despite its imperfections. I’ve no doubt it is.
In the Preface to volume 1 of The Consolidated Treaty Series, Clive Parry explained that his collection purported to make the historical treaties antedating the League of Nations Treaty Series available to the modern reader. By this, the date ad quem, 1919, of his work was made self-explanatory. To justify his choice of the date post quem, 1648, he succinctly stated that this was ‘classically regarded as the date of the foundation of the modern system of States’. To Parry, as to many of his predecessors, 1648 was the natural point of departure for modern treaties.
It is indeed a commonplace among students of international relations and law to indicate 1648, the year of the Peace Treaties of Westphalia, as the very birth year of the modern states system of Europe, to the point that ‘Westphalian’ has become a buzzword for the system itself. The underlying claim is that the treaties inaugurated or even created a new international order based on the sovereign state. It is held that the treaties which put an end to the Thirty Years War (1618–1648) terminated the last great religious war in Europe and sounded the death knell for the universal authority of the pope and the emperor. Thus the princes and republics of Europe achieved their full sovereignty and a new international political and legal order which was premised on the principles of state sovereignty and religious neutrality emerged. As the modern state system was one in which, absent any supranational authority, states were left to their own devices to organise and regulate their mutual relations, horizontal agreements through treaty played a central role in the articulation of international order and treaties became its primary source.
Over the last two decades, the communis opinio among scholars has fallen under attack. A number of scholars have stated that the new order which Westphalia inaugurated had little to do with that the sovereign state system, which only emerged in the 19th century. According to those scholars, the idea of Westphalia is a case of ahistorical myth-making to provide the state system with a clear starting point. But the criticism can even reach further, to the outright negation that Westphalia created anything like a new order at all.
Indeed, any student of international relations or law who is familiar with the literature from international relations and law and who turns to the text of the treaties of Münster [1 CTS 271] and Osnabrück [1 CTS 119], 24 October 1648 – the two instruments which are commonly referred to as Westphalia – is in for a surprise. He or she will not find any mention of state sovereignty or religious neutrality as principles of international organisation in the texts, nor in the surrounding diplomatic documents. Neither will he or she find that the Westphalian Peace Treaties were universal peace treaties, to which most of the powers of Europe supposedly acceded; nor will he or she be able to pinpoint a reference to the balance of power, as so many scholars have claimed.
Westphalia is indeed a myth, and one which has particularly little basis in historical reality as far as the Peace of Westphalia is concerned. In truth, there is very little that is ‘Westphalian’ about Westphalia. Much of the confusion comes from the hybrid character of the two peace instruments, which has often been overlooked or misunderstood. The Peace Treaties of Münster and Osnabrück are of a dual nature. On the one hand, they are bilateral international peace treaties, that of Münster between the Holy Roman Empire and France, that of Osnabrück between the Holy Roman Empire and Sweden. On the other hand, they constitute an internal peace agreement between the emperor and the hundreds of Reichsstände, the constitutive parts of the Holy Roman Empire, which spelled out a new constitutional and religious settlement for the Empire. The clauses into which later scholars have read references to state sovereignty or religious equality all pertain to the latter dimension of the treaties and hold no reflection on the international order of Europe or the law of nations. Modern scholars have considered the involvement of the princes and estates of the Empire in an international peace treaty and the explicit confirmation of their right to make treaties to mark the final rejection of the universal authority of the emperor and the recognition of state sovereignty. In fact, these reminiscences were nothing but the confirmation, or at best adaptation, of old pre-Westphalian rights and went a long way to sustain the medieval, feudal, hierarchical structure that was the Holy Roman Empire. Inasmuch as the treaties had anything to say about sovereignty, it was to reject its ‘Westphalian’ character. Moreover, a comparison of the ‘international’ clauses of the treaties with older treaties teaches that they differed in no way from traditional peace treaties. A historical study of treaty practice should thus move beyond Westphalia and look for the origins of modern treaty-making in the Middle Ages and the 16th century. With time, Oxford Historical Treaties will therefore expand beyond the date post quem of Parry’s collection and include pre-Westphalian treaties.
All this does not suffice to dismiss 1648 as insignificant in the long-term history of the political and legal order of Europe. The mid-17th century certainly was a period of transition between political orders and Westphalia is as good an event to symbolise this as any other. The Westphalia Peace Treaties indeed ended the last great religious war in Western Europe. At the same time, they fell within the middle of a period of civil unrest and war in many European countries (1640–1668), which in the case of some of the major powers ended with the victory of the forces of centralisation over local and regional autonomy. Westphalia, together with some other events, marked the end of a period of turmoil that had started with the Reformation in the second quarter of the 16th century and which had destroyed the medieval order of Europe. After more than a century of unrest and instability which had impeded the formation of a new consent about the international order of Europe, Westphalia helped to create the conditions of internal stability which in the following decades allowed for the articulation of a new common order of Europe. No peace embodies this order more than the Peace Treaties of Utrecht (1713) [e.g., 27 CTS 475 and 28 CTS 295]. This new order thus only materialised after Westphalia rather than at Westphalia. It was the order of the territorial dynastic state – which Bobbitt referred to as the kingly state – and the public law of Europe, which in turn was to be transformed by the French Revolution into that of the nation-state.
Headline image credit: Ratification of the Peace of Münster between Spain and the Dutch Republic in the town hall of Münster, 15 May 1648.. After Gerard ter Borch. Public domain via Wikimedia Commons.
As President Obama ponders whom he will nominate as Eric Holder’s successor as attorney general, he should consider President Ford’s appointment in 1975 of Edward Levi to head the nation’s Department of Justice.
Four decades ago, the United States was reeling from Watergate. President Nixon’s first attorney general, John Mitchell, was on his way to federal prison while Ford’s pardon of Nixon remained controversial.
In this difficult environment, President Ford reached outside his official and personal circles to appoint as attorney general a preeminent legal scholar, Edward Levi.
Levi was a distinguished law professor, an accomplished dean of the University of Chicago Law School, and the widely-admired president of the University of Chicago. In a contentious political setting, Edward Levi was confirmed as attorney general by a voice vote in the United States Senate. Everyone understood that Ford had gone beyond politics as usual to choose an outstanding attorney general capable of restoring confidence in the Department of the Justice.
Ed Levi didn’t need the job. But the United States needed Ed Levi.
Levi’s tenure as attorney general did not disappoint. When Levi left the Justice Department at the end of the Ford Administration, the department’s reputation had been restored in large measure because of Levi’s integrity, professionalism, and independence.
President Obama should strive for an Ed Levi-type appointee for his second attorney general.
Many fine individuals are being mentioned to replace Holder. Most of these individuals are excellent lawyers and, under other circumstances, would be good leaders for the Department of Justice. But the United States today, like the United States in 1975, requires more than a good lawyer as attorney general. It requires someone with Ed Levi’s gravitas.
Some might retort that nothing comparable to Watergate has transpired in recent years. True. But we are a nation badly fractured on political lines. Legitimate concerns have been raised about the recent performance of the Department of Justice. In this difficult atmosphere, it is vital to reaffirm that the Department of Justice is an institution of law, not just another hyper-partisan political arena.
Like President Ford, President Obama should look beyond his official family and his circle of acquaintances to find an attorney general whose prime credentials are professional, not political. Holder’s replacement should be perceived as an independent attorney general who doesn’t need the job.
This heavyweight appointee could, like Ed Levi, come from academia or could come from the private sector. Another potential source for such an attorney general is the judiciary. Among those meeting the Ed Levi-test would be such personages as Justice Sandra O’Connor and Judges Richard Posner, Jon Newman and Jose Cabranes of the U.S. Court of Appeals.
President Ford’s historical reputation improves with each passing year. His pardon of Richard Nixon, widely condemned at the time, is now seen as an act of statesmanship which helped to move the United States beyond Watergate. Ford’s appointment of Edward Levi as attorney general was similarly an act of high statesmanship which reaffirmed America’s commitment to the rule of law. President Obama should make a comparably outstanding appointment for his second attorney general.
In the Preface to their new book A Guide to The SIAC Arbitration Rules, authors Mark Mangan, Lucy Reed and John Choong observe that:
“the [Singapore International Arbitration] Centre is now well-established as a regional leader and the SIAC Rules are among the most popular globally…the authors are all leaders in Asia, including Lin Hoe, Nathaniel Khng, Zara Shafruddin, and Darius Chan in Singapore; Yong Wei Chan and Judy Fu in Hong Kong;…and Nicholas Lingard in Tokyo”
Their observation highlights the importance of Asia both as a centre for international arbitration, and generally for commerce and the practice of commercial law in the 21st century. This underlines the relevance of the 2014 annual meeting of the International Bar Association in Tokyo which, as Michael J Reynolds in his programme to the conference states:
“We will be celebrating the importance of lawyers in Asia and the role they are playing in building the relationships between Asia and the rest of the world. Tokyo will also be a delight to discover, from the finest foods to compelling history, and will provide a rich cultural experience for everyone.”
The first annual meeting held in Asia for seven years, IBA 2014 presents a unique opportunity for colleagues, practitioners and law specialists to meet each other and make personal contact, face to face, many for the first time. Below, we aim to provide some useful information for both new attendees and seasoned delegates to the IBA Annual Meeting.
Over 5,000 delegates from more than 100 jurisdictions over the globe will convene at the Tokyo International Forum from 19-24 October at the International Bar Association’s Annual Meeting. The conference will feature six days of over 180 working sessions and over 60 official IBA social functions. The programme naturally features a special focus on Asian legal practice, including sessions on corporate social responsibility in Asia, Corporate and M&A Law in Asia: inbound and outbound challenges and a Master class on using courtroom litigation to support arbitration in Asia
Tokyo is an excellent gateway to Asia. Often thought of as a city, Tokyo is officially governed as a “metropolitan prefecture”, which combines elements of both a city and a prefecture; a characteristic which is unique to Tokyo. Located in the Kantō region, and placed on the southeastern side of the main island Honshu Tokyo also includes the Izu and Ogasawara Islands. Ranked fourth among global cities by A.T. Kearney’s 2012 Global Cities Index, Tokyo is an attractive destination for this year’s Annual Meeting.
If you would like to know what’s available to fill your time outside your sessions, take a look at the following conference-related events:
Sunday 19 October: Opening ceremony. 6pm – 7.30pm, Welcome party 7.30pm-10.30pm, Auditorium, Tokyo International Forum
This year’s welcome party takes place in the iconic Glass Building which represents the very modern side of Japan and rated 3* by the Michelin Green Guide to Japan. The building reflects Japan’s mix of modern and traditional, offering delegates the opportunity to experience an energetic festival with traditional food, drink and entertainment.
Tuesday 21th October: 2pm-3pm, Meet Oxford author John Choong, author of A Guide to The SIAC Arbitration Rules
From 2pm – 3pm you can meet John Choong, at the Oxford University Press booths #16 and 17, who will be signing copies of his new title A Guide to The SIAC Arbitration Rules.
Wednesday 22 October Afternoon – IBA football match
The IBA ‘World Cup’ football match is a key part of the conference programme. 12 years after Japan co-hosted the 2002 World Cup, it now hosts the annual IBA match. Transport and other arrangements will be confirmed nearer the time and emailed to delegates who register an interest. All spectators are welcome.
Friday 24 October 7.30pm – 10.30pm, – Closing party, Happo-en
Happo-en is ‘garden of eight views’ and the closing party will be held in the grounds and buildings of this classic and beautiful Japanese garden. Constructed to be perfect from all angles, within this hidden gem of Tokyo you can wander at will and encounter some of the classical and historic art of Japan, including ancient Bonsai trees and stone lanterns together with live music and traditional performances.
Also, here are a few tips on what to expect when you get to Tokyo:
The weather in Tokyo in October will be mild. Expect temperatures to reach between 21-22 degrees Celsius, 69-71 degrees Fahrenheit.
There are eight restaurants at the Tokyo International Forum, including Takara which serves local and regional cuisine, including Sukiyaki (Japanese Beef Hot Pot) and Kaisendon (Sushi Rice Bowl), and Kurobuta-gekijo Hibiki, which specializes in local specialty foods of Kawagoe city, featuring dishes such as pork shabu-shabu and Yakiton (grilled pork skewers).
You find can find details of the layout of the Tokyo International Forum here.
If you are lucky enough to be joining us in Tokyo, don’t forget to visit Oxford University Press at booth numbers 16 and 17 where you can browse our award-winning books, pick up a sample copy of one of our professional law journals, or get a free demonstration of one of our online services including Oxford Legal Research Library: International Commercial Arbitration and International Commercial Law.
“Why didn’t anyone in the know say something about it?” That’s the natural reaction of the public when some shocking new scandal – financial wrongdoing, patient neglect, child abuse – comes to light. The question highlights the role of the whistleblower. He or she can play a vital role in ensuring that something is done about activity which is illegal or dangerous. But the price which the whistleblower pays may be high – ostracism by colleagues, victimisation by the employer, dismissal, informal blacklisting by other employers who fear taking on a “troublemaker”.
It is crucial that the public interest in encouraging the genuine whistleblower is fostered. The law can play an important role in promoting this aim. It ought to further the following objectives:
to provide protection for the whistleblower
to ensure that he or she is given an adequate remedy if subjected to dismissal or other detriment; and
to increase the prospect that something will be done to eliminate the danger and/or rectify the wrongdoing which is the subject of the disclosure.
As things stand at present, our law addresses the second of those objectives – it does provide a remedy (through the employment tribunal system) for a whistleblower who is dismissed or otherwise victimised. In its recent Response to the Whistleblowing Call for Evidence , the UK government made it clear that “the whistleblowing framework is a remedy not a protection” – so objective 1 is not fulfilled by the law as it stands. It also conceded that “the framework is about addressing the workplace dispute that follows a disclosure rather than the malpractice reported by the disclosure”. So objective 3 is not part of our legal framework in any explicit way.
On the government’s own analysis, then, the current legal framework on whistleblowing is not fit for purpose. One would expect this frank confession to be followed by a pledge to take action. In particular, what can be done about dealing with the danger and/or wrongdoing which the whistleblower has exposed?
The Call for Evidence and the debate which surrounded it certainly came up with various proposals. Primarily these focused on the role of the regulator. In statutory terms, the various regulators for everything from financial wrongdoing to patient neglect are known as “prescribed persons”, and are listed in statutory instruments promulgated from time to time. The whistleblower is entitled to make disclosures to such “prescribed persons” if they are reasonably believed to be true, and the prescribed person is one who is stated by the statutory instrument to be relevant in relation to the matters disclosed.
It follows that these regulators (such as the Financial Conduct Authority, the Environment Agency, the Health and Safety Executive, the Children’s Commissioner, and the Care Quality Commission to name a few random examples) could play an incredibly important role in furthering objective 3 above.
Prominent among the proposals for reform were those put forward by a prestigious commission set up by the charity Public Concern at Work. It made a number of suggestions across the board. But particularly material to the role of the regulator were the following:
regulators should require the organisations for which they are responsible to have effective whistleblowing arrangements in place
they should review the licence of those organisations which do not have such arrangements
a statutory Code of Practice for employers would provide the template for determining whether such arrangements were effective or not
the regulators should provide feedback to whistleblowers, or explain why it is not possible to do so
the current system of referral of employment tribunal claim forms should be strengthened to make referral mandatory unless the claimant opted out.
The only legislative response from the government has been that contained in clause 135 of the Small Business, Enterprise and Employment Bill 2014 . It gives the Secretary of State power make regulations to require a regulator to produce an annual report on whistleblowing. The regulations would set out the matters to be covered, but not in a form which would enable identification of either the whistleblower or their employer. They would set out requirements for publication e.g. by way of a report to the Secretary of State or on a website.
So far so good, and the proposed clause mirrors one of the suggestions emerging from the Public Concern at Work commission. Standing by itself, however, it is a totally inadequate response.
The crucial point is: what action will the regulators take in order to further the public interest? It is their role “to increase the prospect that something will be done to eliminate the danger and/or rectify the wrongdoing which is the subject of the disclosure”, as the government put it in its Response to the Call for Evidence. The proposals set out by the Public Concern at Work commission, or something very like them, are crucial if we are to hear the question “Why didn’t anyone in the know say something about it?” less frequently in future.
In the wake of the impending (but as yet congressionally unauthorized) US attacks on ISIS elements in Syria, the amazingly continuity in US national security policy has become ever more apparent. American presidents, whatever their politics or campaign rhetoric, over and over stick with essentially the same security programs as their predecessors. President Obama is but the most recent example. He has continued or even expanded numerous Bush administration policies including rendition to third countries, military detention without trial, denial of legal counsel to prisoners, drone strikes, offensive cyber-weapons, and whistleblower prosecutions.
Even seasoned insiders profess bewilderment. As a candidate, the President extolled the virtues of a nuclear-free world and promised to vigorously pursue disarmament. Yet he has recently approved plans for enormous new expenditures in a major ramping-up of the US nuclear arsenal. “A lot of it is hard to explain,” former Senator Sam Nunn told the New York Times. “The president’s vision was a significant change in direction. But the process has preserved the status quo.” The playbill changes, but the play does not.
The conventional explanation lies in the phenomenon described by the late historian Arthur Schlesinger—an imperial presidency. A series of overly-assertive chief executives, according to the theory, have dominated legislators and judges, knocking America’s carefully-balanced separation of powers out of kilter. Vietnam, Watergate, domestic CIA spying and other abuses all were attributed to this outsized presidency. The presumed remedy was to try to tie down the executive Gulliver with a web of new constraints, such as the War Powers Resolution, the Foreign Intelligence Surveillance Act, and a watchful new court and oversight committees.
It didn’t work. Forty years later, the United States has moved beyond an imperial presidency to a system in which the gargantuan US security apparatus not only has broken free of constraints but has engulfed even the presidency itself. Contemporary US security policy is seldom formulated in the Oval Office and handed down to compliant managers in the military, intelligence, and law enforcement agencies. Instead, nerve-center policies ranging from the troop buildup in Afghanistan to ABM deployment to NSA surveillance percolate up from the Pentagon, Langley, Fort Meade, and myriad Beltway facilities with no public names. With rare exceptions, that is where options originate, plans are formulated, and strategy ultimately defined.
The resulting programs take on a life of their own, feeding on caution, living off the bureaucratic land, run by an entrenched and elaborate network of well-meaning careerists and political appointees who are invested in the status quo, committed to increased payrolls and broader missions, and able to outlast the shifting preferences of elected officials. The programs are, in economic terms, “sticky down”—easier to grow than shrink.
Thus when the CIA asked for authority to expand its drone program and launch new paramilitary operations, President Obama famously told his advisers, “The CIA gets what it wants.” Security managers elsewhere also get what they want. During deliberations on the Afghanistan troop surge, the President complained that the military “are not going to give me a choice.” The admirals and generals, his staff said, were “boxing him in.” More recently, the White House claimed that President Obama was unaware of NSA spying on world leaders; Secretary of State John Kerry explained that some US surveillance activities are “on autopilot.” The President in response formed a supposedly independent panel to safeguard civil liberties and restore public confidence—which, it turns out, operated under the auspices of Director of National Intelligence James Clapper, who oversees the NSA.
America’s new security system is best captured by an earlier concept: “double government.” The term is Walter Bagehot’s, the celebrated scholar of the English Constitution, who in 1867 described how Britain’s government had slowly changed in substance but not in form as it moved to a “disguised republic.” The monarchy and House of Lords, he suggested, provided the grand public façade needed to generate public deference, while another set of institutions—the House of Commons, the cabinet, and prime minister—efficiently worked behind the scenes to carry out the actual work of governing.
In the realm of national security, the US government also has changed in substance but not in form—but American double government has evolved in the opposite direction, toward greater centralization and away from democracy. Congress, the presidency, and the courts appear to exercise decisional authority, yet their control is increasingly illusory. The real shaping of security policy is carried out quietly, in highly classified facilities, by anonymous managers the public never sees.
As the NSA’s ubiquity gradually has been unveiled, the Watergate-era questions were asked again: “What did the President know and when did he know it?” The answers to those questions now matter little, however. The remedies of earlier times have proven ineffectual, and the structural forces that eroded accountability and empowered the security elite remain strong. The system’s vaunted capacity for self-correction is therefore severely limited. In this new epoch of American double government, the disquieting question is: Who really is in charge? Unless the United States confronts that question squarely, Congress, the judiciary, and the presidency itself will continue, slowly and quietly, to fade into museum pieces.
The theme of this year’s meeting is “International Law in a Time of Chaos”, exploring the role of international law in conflict mitigation. Panel discussions will examine various aspects of both public international law and private international law, including trade, investment, arbitration, intellectual property, combatting corruption, labor standards in the global supply chain, and human rights, as well as issues of international organizations and international security.
ILW is sponsored and organized by the American Branch of the International Law Association (ABILA) and the International Law Students Association (ILSA). Every year more than one thousand practitioners, academics, diplomats, members of the governmental and nongovernmental sectors, and students attend this conference.
This year’s conference highlights include:
This year’s keynote from Lori Damrosch, Hamilton Fish Professor of International Law and Diplomacy, Columbia Law School, and President of the American Society of International Law. “Democratization of Foreign Policy and International Law, 1914-2014” Friday, 1:30PM (Room 2-02A)
Top practitioners in the field discuss “International Investment Arbitration and the Rule of Law”, Friday 4:45PM (Room 2-02A). (Sign up for our Free Investment Claims Webinar on October 20th to brush up on VCLT in BIT arbitrations in time for this panel.)
Looking for career advice? Attend this roundtable discussion on Saturday afternoon “Careers in International Human Rights, International Development, and International Rule of Law,” Saturday, 3:30PM (Room 2-02B)