How to use this Page

Learned Hand (1872-1961) served on the United States District Court and is commonly thought to be the most influential justice never to serve on the Supreme Court. He corresponded with people in different walks of life, some who were among his friends and acquaintances, others who were strangers to him. In the letter below, Hand writes to Mary McKeon, a New Yorker troubled by Hand’s decision to invalidate the warrantless search and consequent arrest of the Soviet spy, Judith Coplon.

To Mary McKeon

December 28, 1950

Dear Miss McKeon:

I have your letter about the Coplon case and I can understand why you are troubled about the result; and because you were not abusive, I am going to try to explain it to you. 

It is a rule — well settled by the decisions of the Supreme Court — that evidence which the Government secures by its own violation of law it may not use against the person whose rights have been invaded. An extreme example of this would be in case a United States marshal were to break into the house of an accused person and seize his papers; the Government would not be allowed to use the papers against the person whose house had been entered. The same thing is true of documents found upon the person of one who is unlawfully arrested as was Judith Coplon. That was one ground for the reversal. The other was that during the trial it became necessary for the Government to depend upon evidence which it was unwilling to let her see. The Constitution provides that a person accused of crime is entitled to have all witnesses, who are called against him, brought into court at the trial.

Thus in these two instances the rights of the accused were violated, which is entirely consistent with her guilt. Perhaps, if you reflect, you will agree that it is not desirable to convict people, even though guilty, if to do so it is necessary to violate those rules on which the liberty of all of us depends.

Truly yours,

Learned Hand

The letter above was excerpted from Reason and Imagination: The Selected Letters of Learned Hand, edited by Constance Jordan, a retired professor of comparative literature and also Hand’s granddaughter. In 1944, Coplon, who worked for the Foreign Agents Registration section, was recruited as a spy by the NKGB, i.e., the People’s Commissariat for State Security. In 1949, FBI agents detained Coplon as she met with Valentin Gubitchev, a KGB official employed by the United Nations, while carrying what she thought were secret U.S. government documents; in actuality, they were fakes, planted in her purse at the order of J. Edgar Hoover. Declared guilty of espionage by the United States District Court for the Southern District of New York in 1949, Coplon appealed to the United States Court of Appeals for the Second Circuit. In United States v. Coplon, in an opinion authored by Hand and announced on December 5th, her conviction was overturned.

Subscribe to the OUPblog via email or RSS.
Subscribe to only law articles on the OUPblog via email or RSS.
Image credit: Judge Learned Hand circa 1910. Public domain via Wikimedia Commons.

The post A letter from Learned Hand appeared first on OUPblog.

Add a Comment

By Bryan Fanning and Denis Dillon

The Tottenham riots in the London Borough of Haringey took place in August 2011. We examined three responses to them: reports by North London Citizens, an alliance of 40 mostly faith community institutions including schools, the Tottenham Community Panel established by Haringey Council, and the Riots, Communities and Victims Panel established by Parliament.

The riots coincided with the end of an era of British urban policy when various community-centred regeneration programmes introduced by the previous New Labour Government, were being wound down. One of its flagship initiatives was the New Deal for Communities (NDC), a ten year programme which invested £50 million in each of thirty deprived areas including Tottenham.  More recently, David Cameron has promoted the idea of the Big Society with an accompanying rhetoric that blames big government for enfeebling the civic sphere.

Two of the three analyses of the Tottenham riots that we examined shared this perspective. North London Citizens emphasised the need to create new community leaders; the Riots Communities and Victims Panel emphasised an on-going failure of services to engage with communities and vaguely endorses an agenda of neighbourhood-level community empowerment. Cameron’s Big Society agenda envisioned communities and neighbourhoods becoming empowered to take local decisions and solve local problems taking over the running of services and facilities where appropriate. None of the three reports make such recommendations for Tottenham. Rather, they restate in minor key the need for greater responsiveness to communities with no clear ideas about how this might be achieved.

All three reports emphasised a deficit in community cohesion. All three identified inadequate engagement by local service providers with residents as part of the problem. But Tottenham has been here before. The aftermath of the 1985 riot saw considerable effort to improve, foster and build community cohesion in Tottenham. Many of the buildings that were looted and burned in 2011 had been the focus of regeneration efforts.

We had just completed research on the efficacy of such policies when the riots occurred. Our 2011 book Lessons for the Big Society: planning, regeneration and the politics of community participation (Ashgate, 2011) examined a long history of failed efforts by the local authority to secure such participation. There were many reasons for this. Labour held a political monopoly in Tottenham. Community activism not sponsored by the party was often ignored. The institutional culture of the local authority councillors and officials was often hostile to community participation in decision-making even if official rhetoric claimed otherwise. Well-to-do parts of the borough had articulate well-organised groups capable of putting pressure on officials and councillors. Community groups in Tottenham lacked the skills and cultural capital that worked to win responsiveness from institutional actors.

The kind of community capacity that regeneration programmes in Tottenham sought to introduce appeared feeble compared to the on-going capacity for unsolicited activism found in well-to-do areas – expressed through single issue campaigns, the establishment of long-standing amenity groups and well-organised networks able to compel responsiveness from Council officials and councillors. The New Labour diagnosis was that areas like Tottenham lacked the necessary social capital. But the regeneration programmes it put in place engendered only a limited form of community capacity, and this depended on the life-support of funding that has since ended.

What then for Cameron’s Big Society? Even after decades of community-focused urban renewal in Tottenham, both community-institutional relationships and community cohesion remain weak. However, this does not justify the withdrawal of state support or bucolic expectations that civil society can fill the resulting void with minimal support. The very localities that need community empowerment also need state support the most.

We argue that what might work for Tottenham is an approach that seriously interrogates why past regeneration efforts were unable to empower local communities but at the same time accepts that such empowerment cannot be realised without significant state funding. It would take seriously the scepticism-bordering-on-hostility of the Big Society to local authority officialdom. But what Tottenham needs for the foreseeable future is big government willing to learn from past mistakes.

Professor Bryan Fanning is the Head of the School of Applied Social Science at University College Dublin. Dr Denis Dillon is employed by Community Services Volunteers (CSV) in North London. They are the co-authors of Lessons for the Big Society: planning, regeneration and the politics of community participation (Ashgate, 2011). Their article, The Tottenham riots: the Big Society and the recurring neglect of community participation, appears in Community Development Journal.

Since 1966 the leading international journal in its field, Community Development Journal covers a wide range of topics, reviewing significant developments and providing a forum for cutting-edge debates about theory and practice. It adopts a broad definition of community development to include policy, planning and action as they impact on the life of communities. It publishes critically focused articles which challenge received wisdom, report and discuss innovative practices, and relate issues of community development to questions of social justice, diversity and environmental sustainability.

Subscribe to the OUPblog via email or RSS.
Subscribe to only current affairs articles on the OUPblog via email or RSS.
Image credit: After the Riot – View from near Scotland Green. Photo by Alan Stanton, 2011.  Creative Commons Licence. (via Wikimedia Commons)

The post The Tottenham riots, the Big Society, and the recurring neglect of community participation appeared first on OUPblog.

Add a Comment

By Grahame Thompson

Have we seen a potentially new form of global governance quietly emerging over the last decade or so, one that is establishing a surrogate and informal process of the constitutionalization of global economic and political relationships, something that is creeping up on us almost unnoticed?  This issue of ‘global constitutionalization’ has become an important topic of analysis over recent years. Its development is most obvious in the case of business and corporate activity but I suggest it has a much wider provenance and is threatening to encompass many other aspects of global governance like human rights, security and warfare, environmental regulation, and more besides. One difficulty in analyzing this trend is to define its characteristics and parameters since it represents a rather loose configuration, one that is not easy to pin down.

Quasi-constitutionalization is a surrogate process of constitutionalization, not a coherent program with a rounded set of outcomes but full of contradictory half-finished currents and projects: an ‘assemblage’ of many disparate advances and often directionless moves – almost an accidental coming together of elements. So it does not amount to a ‘system’ in any conventional sense. This means it marshals together a complex bricolage of resources: material techniques and devices like models, documents, court decisions, legal statutes and treaties; institutional orders like legal apparatuses, bodies  and governance organizations; and discursive expertise, theoretical knowledges and instruments. But it is a process nonetheless: it is building norms of conduct, rule-making, and a distribution of powers in a ‘global polity’.

I call this a quasi-constitutional process because while it resembles a constitution in many respects it is difficult to transpose constitutionality directly into an international environment where there is no single competent authority that might foster or enforce such a constitution.

In turn, this connects to various senses of the juridicalization of international corporate and other affairs, where new or revitalized types of law are increasingly being brought into play as the mechanisms for resolving disputes or organizing governance. This involves new forms of public law, private law, customary law, regulatory and administrative law, all of which are rapidly evolving in the international arena alongside traditional international law. Institutions that embody such a process are the WTO, various agencies of the UN, the OECD, Bilateral Trade and Investment treaties, and a huge number of standard setting and benchmarking organization many of which are private in character but which both claim and exercise a public power at the global level. This is the site of a reinvigorated private law and private authority operating in the international domain. In the case of companies, they are increasingly adopting the language of global corporate citizenship to characterize their activity as civic actors in this evolving quasi-constitutional environment, and they are being addressed as such by bodies like the World Economic Forum and the UN’s Global Compact. Bilateral trade and investment treaties have mushroomed over recent years. Investment treaties are an example of global private administrative law in action.

On the other hand we have the OECD in its capacity as sponsor of socially responsible conduct by multinational companies (Guidelines for Multinational Enterprises) which has become an instrument of global public administrative law. John Ruggie’s recent attempt to introduce a comprehensive regime of human rights into the business world (the UNs Protect, Respect and Remedy Framework) is another case in point of the creeping quasi-constitutionalizing process.

But a major issue of concern is whether quasi-constitutionalization leads to the Rule by Laws (RbLs) rather than the Rule of Law (RoL) in the international system? The RoL may be being given away as RbLs replace a comprehensive system of democratically constituted judicial review, which cannot happen in the case of global quasi-constitutionality.

Thus in this evolving environment, instead of the rule by elected and accountable political officials we are seeing the emergence of rule by lawyers and by aged judges and law professors in international commercial and other matters. These are the actors that are leading the process of institutional rule-making. Public and particularly private elites are making-up the rules as they go along, arbitrarily and on an ad hoc basis. I call this a rule by a new self-appointed Guild of Lawyers on the one hand and a new Clerisy of the Law on the other. In effect, we are giving up any form of democratic legitimacy and accountability with this introduction of global quasi-constitutionalization.

Grahame F. Thompson is Professor of Political Economy at the Copenhagen Business School (Denmark), and Emeritus Professor at the Open University (England). His research and teaching interests have been in international political economy matters, and globalization; with a recent focus on the role of business organization in the context of international economic matters. He is the author of The Constitutionalization of the Global Corporate Sphere? (OUP, 2012).

Subscribe to the OUPblog via email or RSS.
Subscribe to only articles on law and politics on the OUPblog via email or RSS.
Subscribe to only business and economics articles on the OUPblog via email or RSS.
Image credit: Cover of U.S. Constitution by giftlegacy via iStockphoto. 

The post Should we be worried about global quasi-constitutionalization? appeared first on OUPblog.

Add a Comment

By Elvin Lim

The tragic shootings in Newtown, CT, have plunged the nation into the foundational debate of American politics.

Over at Fox News, the focus as been on mourning and the tragedy of what happened. As far as the search for solutions go, the focus has been on how to cope, what to say to children, and what to do about better mental health screening. It is consistent with the conservative view that when bad things happen, they happen because of errant individuals, not flawed societies. The focus on mourning indicates the view that when bad things happen, they are the inevitable costs of liberty.

At MSNBC, the focus has been on tragedy as a wake up call, not a thing in itself to simply mourn; on finding legislative and governmental solutions — gun control. This is consistent with the liberal view that when bad things happen, they happen because of flawed societies, not just the result of errant individuals or evil as an abstract entity.

The question of which side is right is an imponderable. Conservatives believe that in the end, our vigilance against tyrannical government is our first civic duty. This was the logic behind the Second Amendment. It comes from a long line of Radical Whig thinking that the Anti-Federalists inherited. That is why Second Amendment purists can reasonably argue that that citizens should continue to have access to (even) semi-automatic guns. They will say that the Second Amendment is not just for hunting; it is for liberty against national armies. Liberals, on the other hand, believe that a government duly constituted by the people need not fear government; and it is citizen-on-citizen violence that we ought to try to prevent. This line of thinking began with Hobbes, who had theorized that we lay down our arms against each other, so that one amongst us alone wields the sword. Later, we called this sovereign the state. The Federalists leaned in this tradition.

Should we fear government more or fellow citizens who have access to guns? Should government or citizens enjoy the presumption of virtue? Who knows. There is no answer on earth that would permanently satisfy both political sides in America, because conservatives believe that most citizens, most of the time, are virtuous, and there is no need to take a legislative sledgehammer to restrict the liberty of a few errant individuals at the expense of everybody else. Liberals, conversely, believe that government and regulatory activity are virtuous and necessary most of the time, and there is little practical cost to most citizens to restrict a liberty (to bear arms) that is rarely, if ever, invoked. Put another way: conservatives focus on the vertical dimension of tyranny; liberals fear most the horizontal effects of mutual self-destruction.

What is a president to do? It depends on which side of the debate he stands. Barack Obama believes that the danger we pose to ourselves exceeds the danger of tyrannical government (for which a right to bear arms was originally codified). The winds of public opinion may be swaying in his direction, and Obama appeared to be ready to mould it when he asked: “Are we really prepared to say that we are powerless in the face of such carnage?”

Here is one neo-Federalist argument that Obama can use, should he take on modern Anti-Federalists. If the Constitution truly were of the people, then it is self-contradictory to speak of vigilance against it. In other words, the Second Amendment is anachronistic. It was written in an era of monarchy, as a bulwark against Kings. To those who claim to be constitutional conservatives, Obama may reasonably ask: either the federal government is not sanctioned by We the People, and therefore we must forever be jealous of it; or, the federal government represents the People and we need not treat it as a distant potentate and overstate our fear of it.

If this is to be the age of renewed faith in government, as it appears to be Obama’s mission, then the President will be more likely to convince Americans to lay down our arms; he will persuade us that our vigilance against government by the people is counter-prouctive and anachronistic. But, to move “forward,” he must first convince the NRA and its ideological compatriots that we can trust our government. Only the greatest of American presidents have succeeded in this most herculean of tasks, for our attachment to the spirit of ’76 cannot be understated.

Elvin Lim is Associate Professor of Government at Wesleyan University and author of The Anti-Intellectual Presidency, which draws on interviews with more than 40 presidential speechwriters to investigate this relentless qualitative decline, over the course of 200 years, in our presidents’ ability to communicate with the public. He also blogs at www.elvinlim.com and his column on politics appears on the OUPblog regularly.

Subscribe to the OUPblog via email or RSS.
Subscribe to only politics and law articles on the OUPblog via email or RSS.

The post On the Second Amendment: should we fear government or ourselves? appeared first on OUPblog.

Add a Comment

By Edward Zelinsky

One widely-discussed possibility for reforming the federal income tax is limiting the deduction for charitable contributions. Whether or not Congress amends the Code to restrict the income tax deduction for charitable contributions, Congress should limit the charitable contribution deduction under the federal estate and gift taxes. Such a limit would balance the need for federal revenues with the desirability of encouraging charitable giving.

On December 11th, the advocacy group Responsible Wealth called for the federal government to tax estates over $4,000,000 at rates starting at 45%. Among those joining this call were heirs to old fortunes such as Abigail Disney and Richard Rockefeller and owners of new wealth such as Bill Gates, Sr. Most notably, Warren Buffett agreed (as he has in the past) with this recent plea for higher estate taxes.

I am a fan of my fellow Nebraskan and agree with him that the federal government should impose estate taxes, particularly on large fortunes. I also admire Mr. Buffett for the Giving Pledge which he has promoted with the younger Mr. Gates. Under that Pledge, wealthy individuals commit to giving at least half of their wealth to philanthropy.

There is, however, considerable tension between the Buffett commitment to federal estate taxation and the Buffett commitment to philanthropy. By virtue of the estate tax charitable deduction, when a wealthy decedent leaves part or all of his estate to charity, no estate tax is paid on these contributed amounts.

It is perfectly plausible to call for estate taxation only for those who don’t distribute their wealth to philanthropy. It is, however, hard to reconcile that position with Responsible Wealth’s advocacy of strong estate taxation. Mr. Gates, Sr., for example, declared that “it would be shameful to leave potential revenue on the table from those most able to pay.” However, that is precisely what happens when large estates go to charity, namely, estate tax revenue which would otherwise flow to the federal government is instead diverted to charity. Such charity may be worthwhile but it does nothing to reduce the federal deficit.

Similarly, Ms. Disney argued that “a weak estate tax” falls “on the backs of the middle class,” presumably because the federal government will respond to reduced estate tax revenues by deficit financing, by raising other taxes on the middle class or by reducing government spending. However, when an estate is distributed to charity free of estate taxation, the government confronts these same choices.

A compromise could preserve the incentive for charitable giving while also generating some estate tax revenues for the federal government: Limit the estate (and gift) tax charitable deduction.

Many, including President Obama, have suggested such limitations on the income tax charitable deduction. If, for example, an individual is in the 35% federal income tax bracket, the President has proposed that the donor receive a deduction as if he or she were in the 28% bracket. In a similar fashion, the estate tax charitable deduction could be curbed, thereby generating some additional revenues for the federal fisc while also keeping a tax-incentive for charitable giving.

Consider, for example, a billionaire who leaves his entire estate of $1,000,000,000 to charity. To simplify the math, let’s assume that this billionaire would pay estate tax at the 40% rate if he did not bequeath all his assets to philanthropy. Because this $1,000,000,000 bequest is fully deductible for federal estate tax purposes, no tax is paid in this example. If this billionaire had not made this charitable bequest but had instead left his money to his children, the federal government would have received estate tax revenues of $400,000,000.

Suppose now that Congress limits the federal estate tax deduction to 70% of the amount donated to charity. In this case, the billionaire would leave a taxable estate of $300,000,000. At a 40% rate, this would require a federal estate tax payment of $120,000,000.

To provide the cash to pay this tax, this billionaire would probably reduce his charitable bequest to retain cash to pay this estate tax. However, at the end of the day, charity would receive the bulk of this billionaire’s assets while the federal government would receive some estate tax.

A limit on the estate tax charitable deduction could be constructed to fall only on relatively larger estates. For example, the first $10 million of charitable bequests could be fully deductible for estate tax purposes and only the amount gifted over that threshold would be deductible in part.

Alternatively, the limit could be phased in as charitable contributions increase. For example, the first $10 million of charitable bequests could be fully deductible for estate tax purposes. Then the next $50 million of philanthropic gifts could be 90% deductible and any further gifts would be 70% deductible for federal estate tax purposes.

The details are less important than the basic policy: By limiting the estate tax charitable deduction, all large estates donated to philanthropy would pay some federal estate tax revenues at a reduced rate. This would balance the need for federal revenues with the encouragement of the kind of charitable bequests quite commendably encouraged by Mr. Buffett and the Giving Pledge.

Edward A. Zelinsky is the Morris and Annie Trachman Professor of Law at the Benjamin N. Cardozo School of Law of Yeshiva University. He is the author of The Origins of the Ownership Society: How The Defined Contribution Paradigm Changed America. His monthly column appears here.

Subscribe to the OUPblog via email or RSS.
Subscribe to only business and economics articles on OUPblog via email or RSS.
Image credit: Macro shot of the seal of the United States on the US one dollar bill. Photo by briancweed, iStockphoto.

The post Limit the estate tax charitable deduction appeared first on OUPblog.

Add a Comment

By Jonathan P. Caulkins, Angela Hawken, and Mark A.R. Kleiman

As officials in Washington State and Colorado try to decide how to implement the marijuana-legalization laws passed by their voters last month, officials in Washington, DC, are trying to figure out how to respond. Below, a quick guide to what’s at stake.

WHAT DO THE WASHINGTON AND COLORADO LAWS SAY?

Lots of crucial details remain to be determined, but in outline:

In both states, adults may — according to state but not federal law — possess limited amounts of marijuana, effective immediately.

In both states, there are to be licensed (and taxed) growers and sellers, under rules to take effect later this year.

Sales to minors and possession by minors remain illegal.

Colorado, but not Washington, now allows anyone person over the age of 21 to grow up to six marijuana plants (no more than three of them in the flowering stage) in any “enclosed, locked space,” and to store the marijuana so produced at the growing location. That marijuana can be given away (up to an ounce at a time), but not sold.

HOW MUCH OF THIS CAN THE FEDERAL GOVERNMENT PREVENT?

Paradoxically, the regulated activity permitted by these laws is easy to stop, but the unregulated activity is hard to stop.

Although everything allowed by the new state laws remains forbidden by federal law, if thousands of Coloradans start growing six pot plants each in their basements there wouldn’t be enough DEA agents to ferret them out. The same applies to possession for personal use.

On the other hand, the federal government has ample legal authority to shut down the proposed systems of state-licensed production and sale. Once someone formally applies to Colorado or Washington for permission to commit what remains a federal felony, a federal court can enjoin that person from doing any such thing, and such orders are easily enforced. So the federal government could make it impossible to act as a licensed grower or seller in either state.

Moreover, it could do so at any time. The lists of license-holders will always be available, and at any point they could be enjoined from continuing to act under those licenses. That creates a “wait-and-see” option unusual in law enforcement situations; in general, an illicit activity becomes harder to suppress the larger it is and the longer it has been established.

WHAT IMPACT WILL THE LAWS HAVE ON DRUG ABUSE?

It is possible that removing the state-level legal liability for possession and use of marijuana will increase demand, but there is little historical evidence from other jurisdictions that changing user penalties much affects consumption patterns.

There is no historical evidence concerning how legal production and sale might influence consumption, for the simple reason that no modern jurisdiction has ever allowed large-scale commercial production. But commercialization might matter more than mere legality of use. It could affect consumption by making drugs easier to get, by making them cheaper, by improving quality and reliability as perceived by consumers, and by changing attitudes: both consumer attitudes toward the drugs and the attitudes of others about those who use drugs. How great the impacts would be remains to be seen; it would depend in part on yet-to-be-determined details of the Colorado and Washington systems.

Washington’s legislation is designed to keep the price of legally-sold marijuana about the same as the current price of illegal marijuana. Colorado’s system might allow substantially lower prices. Falling prices would be expected to have a significant impact on consumption, especially among very heavy users and users with limited disposable income: the poor and the young.

WHAT EFFECT WILL THE LAWS HAVE ON DRUG TRAFFICKING?

If the laws affect Mexican drug trafficking organizations at all, the impact will be to deprive them of some, but not the bulk, of their revenues. Transnational drug trafficking organizations currently profiting from smuggling marijuana into the US or organizing its production here cannot gain from increased competition.

The open question is how much, if any, revenue they would lose from either falling prices or reduced market share. The oft-cited figure that the big Mexican drug trafficking groups derive 60% of their drug-export revenue from marijuana trafficking has been thoroughly debunked; the true figure is closer to 25%, and that doesn’t count their ill-gotten gains from domestic Mexican drug dealing or from extortion, kidnapping, and theft. So don’t expect Los Zetas to go out of business, whatever happens in Colorado.

Legal marijuana in Washington State is likely to be too expensive to compete on the national market. But prices in Colorado might be low enough to make legal cannabis from Colorado retailers competitive with illicit sellers of wholesale cannabis as a supply for marijuana dealers in other states. To take advantage of that opportunity, out-of-state dealers could organize groups of “smurfs” to buy one ounce each at multiple retail outlets; a provision of the Colorado law forbids the state from collecting the sort of information about buyers that might discourage smurfing. Marijuana prices might fall substantially nationwide, with harmful impacts on drug abuse but beneficial impacts on international trafficking. (The state government could even gain revenue if Colorado became a national source of marijuana.)

The other wild card in the deck is the Colorado “home-grow” provision. Marijuana producers in Colorado will be able to grow the plant without any risk of enforcement action by the state, and also without any registration requirement or taxation, as long as they grow no more than three flowering plants and three plants not yet in flower at any given location. By developing networks of grow locations each below the legal limit, entrepreneurs could create large-scale production operations with a significant cost advantage over states where growing must be concealed from state and local law enforcement agencies.

Only time will tell whether Colorado “home-grown” could compete with California and Canada in the national and international market for high-potency cannabis or with Mexico in the market for “commercial-grade” cannabis. But the risks imposed by local law enforcement, and the costs of concealment to avoid those risks, constitute such a large share of the costs of illegal marijuana growing that avoiding those costs would constitute a very great competitive advantage, and illicit enterprise has proven highly adaptable to changing conditions.

IS THERE A BASIS FOR A BARGAIN?

Maybe. Federal and state authorities share an interest in preventing the development of large interstate sales from Colorado and Washington, and the whole country might gain from learning about the experience of legalization in those two states: as long as the effects of those laws could be mostly contained within those states. The question is whether the federal government might be willing to let Colorado and Washington try allowing in-state sales while working hard to prevent exports, and whether those states, with federal help (and the threat of a federal crackdown on their licensed growers and sellers if Washington and Colorado product started to show up in New York and Texas), could succeed in doing so. If that happens, it would be vital to have mechanisms in place to learn as much as possible from the experiment.

Things will get even more complex if other states decide to join the party.

So buckle your seat belts; this could be a rather bumpy ride.

Mark A.R. Kleiman, Jonathan P. Caulkins, and Angela Hawken are the authors of Drugs and Drug Policy: What Everyone Needs to Know. Mark A.R. Kleiman is Professor of Public Policy at UCLA, editor of The Journal of Drug Policy Analysis, and author of When Brute Force Fails and Against Excess. Jonathan P. Caulkins is Stever Professor of Operations Research and Public Policy at Carnegie Mellon University. Angela Hawken is Associate Professor of Public Policy at Pepperdine University.

Subscribe to the OUPblog via email or RSS.
Subscribe to only law and politics articles on the OUPblog via email or RSS.

The post Semi-legal marijuana in Colorado and Washington: what comes next? appeared first on OUPblog.

Add a Comment

By James H. Mills

It was announced on 10 December as an outcome of the recent Commission into cannabis that the UK Government has decided to reorganise its ‘ganja administration’ with the objective of taxing sales of the drug in order to generate revenues and to control the price in order to discourage excessive consumption. The Government will work with partners from the private sector to ensure that products of a consistent quality are available to consumers. A source at one of the cannabis corporations has stated that they are happy to make a full contribution to the Government’s finances, although critics have argued that they deploy a range of strategies to avoid paying tax.

The Home Affairs Committee’s Ninth Report, with the title Drugs: Breaking the Cycle, generated plenty of controversy early in December when the Prime Minister rejected its recommendation that a Royal Commission on Drugs Policy be established. The controversy may well have been a furore had an announcement along the lines of the above been included in its pages. Yet mention in the Committee’s report of state cannabis monopolies, of the legal consumption of the drug, and of permissive control regimes in faraway countries, invite comparisons to a previous period in British history, as does the Prime Minister’s allusion to a Royal Commission. This was a period when the paragraph above would have raised few eyebrows as British tax collectors skimmed off revenues from some of the world’s largest cannabis consuming societies.

The period, of course, is the 1890s. The Commission in question was the Indian Hemp Drugs Commission which was ordered in the House of Commons in 1893 and which reported in 1894. This Commission was the forerunner of the better known Royal Opium Commission which came to its conclusions in 1895. The enquiry into ‘Indian Hemp’, or cannabis, was focused on the colonial administration in India and its handling of the cannabis trade there. Critics of the opium trade had discovered that the Government of India was also making money from cannabis through a tax on the local market there, and seized on this as further evidence of the corruption of British rule. William Caine, one of the most passionate of these critics declared that cannabis was ‘the most horrible intoxicant the world has yet produced’ and started a campaign that forced the inquiry.

What the inquiry revealed was a thriving market for cannabis products in Britain’s colonies in south Asia. These substances had long-been been used for medication and intoxication there, and complex local beliefs about their uses and dangers were well-established before the British arrived. Colonial scientists and doctors proved to be curious about the potential of cannabis, and William O’Shaughnessy, Professor of Chemistry and Medicine in the Medical College of Calcutta, championed its virtues as a wonder-drug in the 1840s. However, the most sustained interest in the substance on the part of the British was from the Excise officials charged with taxing it as by the 1890s revenue from commercial cannabis was in the region of £150000 per annum, or around nine million pounds in today’s money.

Many of these officials worked readily alongside India’s cannabis producers in the trade. One magistrate reported that ‘they are singularly peaceable and law abiding and they are remarkably wealthy and prosperous’ and went on to note that:

The ganja cultivators contributed amongst them Rs. 5000 for the creation of the Higher English School at Naugaon. If a road or a bridge is wanted, instead of waiting for the tardy action of a District Board or committing themselves to the tender mercies of the PWD the cultivators raise a subscription among themselves and the road or bridge is constructed.

Other British officials were more suspicious of these producers however. As early as the 1870s fears were expressed that all manner of strategies were devised by those in the trade to evade the administration’s efforts to tax it. Storing crops away from the eyes of inspectors, claiming that fires had destroyed full storage facilities and clandestine shipments of the drug were all uncovered. Officials regularly swapped stories like the following:

In December, a couple of police constables and a village watchman were, about 9pm, on their way to Bálihar, when they saw two persons crossing the field with something on their heads. On their shouting out, the men dropped their loads and ran off. It was then found that they had dropped 36 ½ kutcha seers of flat hemp. The drug was taken possession of by the constables but the culprits were never traced.

Perhaps because of such episodes the British continued to tighten their grip on commercial cannabis into the twentieth-century and reforms in the wake of the Indian Hemp Drugs Commission included price fixing, government-controlled warehousing of all crops, and licensing of both wholesale and retail transactions. The example of cannabis-taxation in India was followed elsewhere, with colonial administrations as far apart as Burma and Trinidad abandoning initial attempts at prohibition. In fact it emerged in 1939 that the Government in India had been supplying cannabis to markets in both Burma and Trinidad in contravention of the international controls on the drug that had been imposed in 1925 at the Geneva Opium Conference.

While the Home Affairs Committee is right to look to current experiments with control regimes for cannabis in Washington, Colorado and Uruguay, perhaps the stories above are reminders that British history too provides plenty of evidence for assessing ‘the overall costs and benefits of cannabis legalisation’. These stories provide glimpses of a world where cannabis transactions provide state revenues rather than act as drains on resources, where suppliers club together to pay for educational facilities rather than hang around school-gates plying their wares, and where doctors work freely with a useful drug. But they also seem to warn of the moral complexities of state-sponsored markets in psycho-active substances, and of the problems that any control system will face when confronted by those keen to maximise their profits from such drugs.

James H. Mills is Professor of Modern History at the University of Strathclyde and Director of the Strathclyde hub of the Centre for the Social History of Health and Healthcare (CSHHH) Glasgow. Among his publications are Cannabis Nation: Control and consumption in Britain, 1928-2008, (Oxford University Press 2012), Cannabis Britannica: Empire, trade and prohibition, 1800-1928, (Oxford University Press 2003) and (edited with Patricia Barton) Drugs and Empires: Essays in modern imperialism and intoxication, 100-1930, (Palgrave 2007). The extracts above are all taken from his books.

Subscribe to the OUPblog via email or RSS.
Subscribe to only law and politics articles on the OUPblog via email or RSS.
Image credit: Photograph of cannabis indica foliage bygaspr13 via iStockphoto. 

The post Ganja administration appeared first on OUPblog.

Add a Comment

By Sandesh Sivakumaran

The last couple of years have been bad for journalists. I’m not referring to phone-hacking, payments to police, and the like, which have occupied much attention in the United Kingdom these last months. Rather, I’m referring to the number of journalists who have been killed in wartime.

These last two years alone have seen eminent journalists such as Marie Colvin and Tim Hetherington killed while reporting on armed conflicts. Just last month, two journalists were killed while reporting in Syria. Deaths of journalists during conflicts are not new — Robert Capa and Gerda Taro both died while serving as war photographers. Increasingly, though, we are witnessing the targeting of journalists because they are journalists.

Why are journalists targeted?

Journalists play a critical role in wartime — reporting on events, revealing the horrors of war, investigating abuses by the parties. Their role is a particularly important one given the fog of war. It’s often through media reporting that the public takes notice of a situation and the international community is pushed into action. For these very reasons, journalists are not infrequently viewed as a thorn in the side of the government or the armed group. They may be considered unwanted witnesses to what is going on and targeted for their reporting.

How does the law of armed conflict protect journalists?

The law of armed conflict distinguishes between different types of journalists:

1. Journalists who work for media outlets or information services of the armed forces.
2. Journalists who accompany the armed forces and are authorized to do so, but who aren’t members of the armed forces, e.g., the embedded reporter.
3. Journalists who are undertaking professional activities in areas affected by hostilities but who aren’t accompanying the armed forces, e.g., the broadcaster who is presenting from a conflict zone but who isn’t embedded with the troops.

The first category of journalists constitutes members of the armed forces. Accordingly, they don’t benefit from the protections afforded to civilians and their deaths don’t constitute a violation of the law.

The latter two categories of journalists are civilians. Accordingly, they can’t be attacked, unless and for such time as they take a direct part in hostilities. Reporting on events and investigating abuses committed by the parties can never constitute taking a direct part in hostilities, even if the investigations lead to greater support for one side or another.

Journalists may, however, prove to be casualties of lawful attacks. This is a particular risk for journalists who are embedded with troops. The law allows for the targeting of troops and that targeting may result in bystanders or embedded reporters becoming casualties. In order to judge the legality of such an attack, the law utilizes the principle of proportionality, ie we have to weigh up the expected loss of civilian life, injury to civilians, and damage to civilian objects with the concrete and direct military advantage anticipated. Only where the former is excessive when compared to the latter will the attack be unlawful. Although any loss of life is regrettable, the legal test means that deaths don’t necessarily imply that unlawful acts have been committed.

Particular controversies

One particularly controversial area of the law is the targeting of TV and radio stations. Civilian broadcasting services are protected from attack. They may be legitimate targets, however, if they constitute military objectives. In legal terms, this refers to objects that, “by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage.”

This would render dual purpose broadcasters that broadcast civilian programmes and which are used for military communications possible targets. Civilian broadcasters that broadcast propaganda are not generally considered military objectives, as propaganda doesn’t satisfy the test for a military objective. Thus, following NATO’s targeting of the RTS studio in Belgrade during the conflict in Kosovo, the Committee established by the Prosecutor of the International Criminal Tribunal for the former Yugoslavia to Review the NATO Bombing Campaign against the Federal Republic of Yugoslavia noted that, “if the attack on the RTS was justified by reference to its propaganda purpose alone, its legality might well be questioned by some experts in the field of international humanitarian law” (para. 76). Compare that to Radio Mille Collines, the broadcaster that was inciting genocide in Rwanda and which many people consider a legitimate target. The dividing line is a tricky one to draw.

Sandesh Sivakumaran is Associate Professor and Reader in International Law, University of Nottingham. He is the author of The Law of Non-International Armed Conflict (OUP, 2012), co-editor of International Human Rights Law (OUP, 2010) and recipient of the Journal of International Criminal Justice Giorgio La Pira Prize and the Antonio Cassese Prize. He advises and acts as expert for a range of states, inter-governmental organizations, and non-governmental organizations on issues of international law.

Subscribe to the OUPblog via email or RSS.
Subscribe to only law and politics articles on the OUPblog via email or RSS.

The post Killing journalists in wartime: a legal analysis appeared first on OUPblog.

Add a Comment

Jolyon Mitchell

It was agonizing, just a few weeks before publication of Martyrdom: A Very Short Introduction, to discover that there was a minor mistake in one of the captions. Especially frustrating, as it was too late to make the necessary correction to the first print run, though it will be repaired when the book is reprinted. New research had revealed the original mistake. The inaccuracy we had been given had circulated the web and had been published by numerous press agencies and journalists too. What precisely was wrong?

To answer this question it is necessary to go back to Iran. During one of the demonstrations in Tehran following the contested re-election of President Ahmadinejad in 2009, a young woman (Neda Agha-Soltan) stepped out of the car for some fresh air. A few moments later she was shot. As she lay on the ground dying her last moments were captured on film. These graphic pictures were then posted online. Within a few days these images had gone global. Soon demonstrators were using her blood-spattered face on posters protesting against the Iranian regime. Even though she had not intended to be a martyr, her death was turned into a martyrdom in Iran and around the world.

Many reports also placed another photo, purportedly of her looking healthy and flourishing, alongside the one of her bloodied face. It turns out that this was not actually her face but an image taken from the Facebook page of another Iranian with a similar name, Neda Soltani. This woman is still alive, but being incorrectly identified as the martyr has radically changed her life. She later described on BBC World Service (Outlook, 2 October 2012) and on BBC Radio 4 (Woman’s Hour, 22 October 2012) how she received hate mail and pressure from the Iranian Ministry of Intelligence to support the claim that the other Neda was never killed. The visual error made it almost impossible for Soltani to stay in her home country. She fled Iran and was recently granted asylum in Germany. Neda Soltani has even written a book, entitled My Stolen Face, about her experience of being mistaken for a martyr.

The caption should therefore read something like: ‘A protestor holds a picture of a blood spattered Neda Agha-Soltan and another of a woman, Neda Soltani, who was widely misidentified as Neda Agha-Soltan.’ This mistake underlines how significant the role is of those who are left behind after a death. Martyrs are made. They are rarely, if ever, born. Communities remember, preserve, and elaborate upon fatal stories, sometimes turning them into martyrdoms. Neda’s actual death was commonly contested. Some members of the Iranian government described it as the result of a foreign conspiracy, while many others saw her as an innocent martyr. For these protestors she represents the tip of an iceberg of individuals who have recently lost their lives, their freedom, or their relatives in Iran. As such her death became the symbol of a wider protest movement.

This was also the case in several North African countries during the so-called Arab Spring. In Tunisia, in Algeria, and in Egypt the death of an individual was put to use soon after their passing. This is by no means a new phenomenon. Ancient, medieval, and early modern martyrdom stories are still retold, even if they were not captured on film. Tales of martyrdom have been regularly reiterated and amplified through a wide range of media. Woodcuts of martyrdoms from the sixteenth century, gruesome paintings from the seventeenth or eighteenth centuries, photographs of executions from the nineteenth century, and fictional or documentary films from the twentieth century all contribute to the making of martyrs. Inevitably, martyrdom stories are elaborated upon. Like a shipwreck at the bottom of the ocean, they collect barnacles of additional detail. These details may be rooted in history,unintentional mistakes, or simply fictional leaps of the imagination. There is an ongoing debate, for example, around Neda’s life and death. Was she a protestor? How old was she when she died? Who killed her? Was she a martyr?

Martyrdoms commonly attract controversy. One person’s ‘martyr’ is another person’s ‘accidental death’ or ‘suicide bomber’ or ‘terrorist’. One community’s ‘heroic saint’ who died a martyr’s death is another’s ‘pseudo-martyr’ who wasted their life for a false set of beliefs. Martyrs can become the subject of political debate as well as religious devotion. The remains of a well-known martyr can be viewed as holy or in some way sacred. At least one Russian czar, two English kings, and a French monarch have all been described after their death as martyrs.

Neda was neither royalty nor politician. She had a relatively ordinary life, but an extraordinary death. Neda is like so many other individuals who are turned into martyrs: it is by their demise that they are often remembered. In this way even the most ordinary individual can become a martyr to the living after their deaths. Preserving their memory becomes a communal practice, taking place on canvas, in stone, and most recently online. Interpretations, elaborations, and mistakes commonly cluster around martyrdom narratives. These memories can be used both to incite violence and to promote peace. How martyrs are made, remembered, and then used remains the responsibility of the living.

Jolyon Mitchell is Professor of Communications, Arts and Religion, Director of the Centre for Theology and Public Issues (CTPI) and Deputy Director of the Institute for the Advanced Study in the Humanities (IASH) at the University of Edinburgh. He is author and editor of a wide range of books including most recently: Promoting Peace, Inciting Violence: The Role of Religion and Media (2012); and Martyrdom: A Very Short Introduction (2012).

The Very Short Introductions (VSI) series combines a small format with authoritative analysis and big ideas for hundreds of topic areas. Written by our expert authors, these books can change the way you think about the things that interest you and are the perfect introduction to subjects you previously knew nothing about. Grow your knowledge with OUPblog and the VSI series every Friday!

Subscribe to the OUPblog via email or RSS.
Subscribe to only VSI articles on the OUPblog via email or RSS.
Subscribe to only articles on law and politics on the OUPblog via email or RSS.

Image credit: A protestor holds a picture of a blood spattered Neda Agha-Soltan and another of a woman, Neda Soltani, who was widely misidentified as Neda Agha-Soltan, used in full page context of p.49, Martyrdom: A Very Short Introduction, by Jolyon Mitchell. Image courtesy of Getty Images.

The post Making and mistaking martyrs appeared first on OUPblog.

Add a Comment

By Gérardine Goh Escolar

The relentless heat of the sun waned quickly as it slipped below the horizon. All around, ochre, crimson and scarlet rock glowed, the brief burning embers of a dying day. Clouds of red dust rose from the unseen depths of the dry canyon — Mars? I wish! We were hiking in the Grand Canyon, on vacation in that part of our world so like its red sister. It was 5 August 2012. And what was a space lawyer to do while on vacation in the Grand Canyon that day? Why, attend the Grand Canyon NASA Curiosity event, of course!

Wait, what? Space lawyers? Have they got their grubby hands on Mars now?

Well, quite the contrary, and in a manner of speaking, space law has been working to keep any grubby hands off Mars. In the heady aftermath of the Soviet launch of Sputnik-1 in 1957, nations flocked to the United Nations to discuss — and rapidly agree upon — the basic principles relating to outer space. Just a decade later, the 1967 Outer Space Treaty was concluded, declaring outer space a global commons, and establishing that the “exploration and use of outer space shall be carried on for the benefit and in the interests of all mankind”. Today, more than half of the world’s nations are Parties to the Outer Space Treaty, and its principles have achieved that hallowed status of international law — custom — meaning that they are binding on all States, Party or not.

More specifically, the 1967 Outer Space Treaty affirmed that outer space, including the Moon, planets, and other natural objects in outer space (such as Mars!), were not subject to appropriation, forbidding States from claiming any property rights over them. Enterprising companies and individuals have sought to exploit what they saw as a loophole in the Treaty, laying claim to extraterrestrial land on the Moon, Mars and beyond, and selling acres of this extraterrestrial property for a pretty penny. One company claims to have sold over 300 million acres of the Moon to more than 5 million people in 176 countries since 1980. The price of one Moon acre from this company starts at USD$29.99 (not including a deep 10% discount for the holiday season) — potentially making the owner of said company a very rich man. Other companies have also started a differentiated pricing model: “The Moon on a Budget” – only USD$18.95 per acre if you wouldn’t mind a view of the Sea of Vapours — vs. the “premiere lunar location” of the Sea of Tranquillity for USD$37.50 per acre. The package includes a “beautifully engraved parchment deed, a satellite photograph of the property and an information sheet detailing the geography of your region of the moon.” Land on Mars comes at a premium: starting at USD$26.97 per acre, or a “VIP” deal of USD$151.38 for 10 Mars acres.

Indeed, the USD$18.95 may be a good price for the paper that the “beautifully engraved parchment deed” is printed on. And that is likely all you will get for your money. Although the Treaty does not also explicitly forbid individuals or corporate entities from laying claim to extraterrestrial property, it does make States internationally responsible for space activities carried out by their nationals. Despite these companies’ belief that the Treaty only prohibits States from appropriating extraterrestrial property, it is disingenuous to say that on Mars and any other natural object in outer space, “apart from the laws of the HEAD CHEESE, currently no law exists.” International law does apply to the use and exploration of outer space and natural extraterrestrial bodies, including Mars. And that international law, including the prohibition on the appropriation of extraterrestrial property, applies equally to individuals and corporate entities through the vehicle of State responsibility in international law, and through domestic enforcement procedures.

Now, that’s not to say that the principle of non-appropriation is popular. It has been questioned by a caucus of concerned publicists, worried that it would stifle commercial interest in the exploration of Mars. Some other publicists — myself included — have come up with proposals for “fair trade/eco”-type uses of outer space that they contend should be an exception to the blanket ban. But the law at the moment stands as it is — Mars cannot be owned. Or bought. Or sold. For many private ventures into outer space, that is a “big legal buzzkill.” These days, it seems, NASA may even land a spacecraft on the asteroid you purport to own and refuse to pay parking charges — and the US federal court will actually dismiss your case as without legal merit. What is the world coming to?

On the bright side, international space law has meant that there has been a lot of international cooperation in outer space. This has mostly kept the peace in outer space (no Star Wars!) and has ensured the freedom of the exploration and use of outer space for the benefit of humanity. International space law has also contributed towards keeping the Martian (and outer space) environment pristine. And in a world where we worry about the future of our own blue planet, maybe having international law keep our grubby hands of her sister Red Planet isn’t such a bad idea after all.

Dr. Gérardine Goh Escolar is Associate Legal Officer at the United Nations. She is also Associate Research Fellow at the International Institute of Air and Space Law at Leiden University, and has taught international law and space law at various universities, including the National University of Singapore, the University of Cologne and the University of Bonn. She was formerly legal officer and project manager at a national space agency, as well as counsel for a satellite-geoinformation data company. She is currently working on her fourth book, International Law and Outer Space (Oxford International Law Library, OUP: forthcoming 2014). All opinions and any errors in this post are entirely her own.

The Max Planck Encyclopedia of Public International Law is a comprehensive online resource containing peer-reviewed articles on every aspect of public international law. Written and edited by an incomparable team of over 800 scholars and practitioners, published in partnership with the Max Planck Institute for Comparative Public Law and International Law, and updated through-out the year, this major reference work is essential for anyone researching or teaching international law. Articles on outer space law, free for a limited time, include: “Moon and Celestial Bodies” ; “Astronauts” ; “Outer Space, Liability for Damage” ; and “Spacecraft, Satellites, and Space Objects”.

Oxford University Press’ annual Place of the Year competition, celebrating geographically interesting and inspiring places, coincides with its publication of Atlas of the World – the only atlas published annually — now in its 19th Edition. The Nineteenth Edition includes new census information, dozens of city maps, gorgeous satellite images of Earth, and a geographical glossary, once again offering exceptional value at a reasonable price. Read previous blog posts in our Place of the Year series.

Subscribe to the OUPblog via email or RSS.
Subscribe to only law and politics articles on the OUPblog via email or RSS.
Image credit: Valles Marineris is a vast canyon system that runs along the Martian equator. Courtesy NASA/JPL-Caltech/USGS. Image has been altered from the original with the addition of a “FOR SALE” sign.

The post Mars, grubby hands, and international law appeared first on OUPblog.

Add a Comment

With the ongoing negotiations around the fiscal cliff — what taxes can we raise? what can we cut instead? — we’ve pulled a brief excerpt from Taxes in America: What Everyone Needs to Know by Leonard E. Burman and Joel Slemrod. When heated debates over taxation roil Congress and the nation, a better understanding of our tax system is of vital importance.

Taxes have always been an incendiary topic in the United States. A tax revolt launched the nation and the modern day Tea Party invokes the mantle of the early revolutionaries to support their call for low taxes and limited government.

And yet, despite the passion and the fury, most Americans are remarkably clueless about how our tax system works. Surveys indicate that they have no idea about how they are taxed, much less about the overall contours of federal and state tax systems. For instance, in a recent poll a majority of Americans either think that Social Security tax and Medicare tax are part of the federal income tax system or don’t know whether it is or not, and more than six out of ten think that low-income or middle-income people pay the highest percentage of their income in federal taxes. Neither is correct.

Thus, there is a desperate need for a clear, concise explanation of how our tax system works, how it affects people and businesses, and how it might be made better.

Should tax reform and deficit reduction be separated?

One critical point in the current debate about tax reform is whether it should be revenue-neutral. Some argue that it should be so as to follow the successful blueprint laid out in 1986. Also, many advocates of revenue-neutrality object to tax increases on principle. But some counter that our long-run budget problems are so severe that more revenues will be needed and potentially tying tax reform to lessening future debt burdens could be an effective strategy.

We side with those who think more revenue will be needed and that tax reform should be part of a revenue-raising, deficit-reducing plan. The two go together in that raising revenue is less damaging if done with a more efficient tax system. As discussed below, the Bowles-Simpson deficit reduction plan and the proposal by the Bipartisan Policy Center’s Debt Reduction Task Force both followed this approach. They would eliminate many tax expenditures to finance income tax rate cuts, as in 1986, but reserve some of the revenue gains for deficit reduction. The BPC plan cut fewer tax expenditures, but would introduce a new VAT to augment federal revenues.

Are there some sensible tax reform ideas?

Sure. President George W. Bush put together a blue ribbon panel to propose fundamental tax reform, and they came up with two alternative packages that would have each been simpler and more efficient than the existing tax code. One option would have radically simplified the tax code by eliminating many tax expenditures and converting many of the remaining tax deductions to flat credits. One insight of the Bush tax reform panel was that while tax experts view the standard deduction as a simplification—because people who do not itemize don’t need to keep records on charitable contributions, mortgage payments, taxes, and so on—most real people think it’s unfair that high income people can deduct those items while lower income people can’t. The proposal would have dispensed with itemization.

The “simplified income tax” under the Bush panel’s scheme would have reduced the number of tax brackets and cut top rates, eliminated the individual and corporate alternative minimum tax, consolidated savings and education tax breaks to reduce “choice complexity” and confusion, simplified the Earned Income and Child Tax Credits, simplified taxation of Social Security benefits, and simplified business accounting. The alternative “growth and investment” tax plan would have lowered the taxation of capital income compared with current law—somewhat similar to Scandinavian dual income tax systems.

The Bipartisan Policy Center Debt Reduction Task Force contained a tax reform plan aimed at simplifying the tax code enough so that half of households would no longer have to file income taxes. That plan would create a new value-added tax and use the revenue to cut top individual and corporate income tax rates to 27 percent.

President Obama empaneled another commission, commonly called the Bowles-Simpson Commission (after its two heads) with the mandate to reform the tax code and reduce the deficit. (The Bush panel had been instructed to produce a revenue-neutral plan.) The commission failed to achieve the super-majority required to force legislative consideration, but a majority supported the chairmen’s blueprint. Bowles-Simpson would have eliminated even more tax expenditures than the BPC Task Force, allowing substantial tax rate cuts without the need for a new VAT or other revenue source.

Senators Ron Wyden (D-OR) and Dan Coats (R-IN) produced a more incremental tax reform plan, designed to be revenue-neutral and preserve the most popular tax breaks. It would eliminate the AMT and cut the corporate tax rate to 24 percent while capping individual income tax rates at 35 percent. The cost of these provisions would be offset by closing or scaling back various tax expenditures. The proposal would raise tax rates on high income taxpayers’ long-term capital gains and dividends from 15 to 22.75 percent. It would revise the formula the federal government uses to adjust tax parameters for inflation, generally cutting the revenue cost of annual inflation adjustments. The plan would also reduce businesses’ interest deductions. It would consolidate and simplify individual tax breaks for saving and education. The most radical process change is that the plan would require the IRS to prepare pre-filled tax returns for lower-income filers.

Columbia law professor Michael Graetz has an even more sweeping proposal.6 He proposes to raise the income tax exemption level so high that 100 million households would no longer owe income tax. To make up the lost revenue a new 10 to 15 percent VAT would be enacted. Only families with incomes above $100,000 would have to file an income tax return. The plan would also substantially simplify the income tax for those few who continued to file, but the main simplification would be to take most households off the income tax rolls entirely. (However, households would still have to supply information to claim new refundable tax credits aimed at offsetting the regressivity of the VAT.)

Leonard E. Burman and Joel Slemrod are the author of Taxes in America: What Everyone Needs to Know. Leonard E. Burman is Daniel Patrick Moynihan Professor of Public Affairs at Maxwell School of Syracuse University. Joel Slemrod is Professor of Economics in the Department of Economics and the Paul W. McCracken Collegiate Professor of Business Economics and Public Policy in the Stephen M. Ross School of Business, at the University of Michigan.

Subscribe to the OUPblog via email or RSS.
Subscribe to only business and economics articles on the OUPblog via email or RSS.
Image credit: Macro shot of the seal of the United States on the US one dollar bill. Photo by briancweed, iStockphoto.

The post Tax reform and the fiscal cliff appeared first on OUPblog.

Add a Comment

By Mark Bevir

Governance, governance everywhere – why has the word “governance” become so common? One reason is that many people believe that the state no longer matters, or at least the state matters far less than it used to. Even politicians often tell us that the state can’t do much. They say they have no choice about many policies. The global economy compels them to introduce austerity programs. The need for competitiveness requires them to contract-out public services, including some prisons in the US.

If the state isn’t ruling through government institutions, then presumably there is a more diffuse form of governance involving various actors. So, “governance” is a broader term than “state” or “government”. Governance refers to all processes of governing, whether undertaken by a government, market, or network, whether over a family, corporation, or territory, and whether by laws, norms, power, or language. Governance focuses not only on the state and its institutions but also on the creation of rule and order in social practices.

The post Does the state still matter? appeared first on OUPblog.

Add a Comment

By James Ker-Lindsay

There has rarely been a more interesting time to study secession. It is not just that the number of separatist movements appears to be growing, particularly in Europe, it is the fact that the international debate on the rights of people to determine their future, and pursue independence, seems to be on the verge of a many change. The calm debate over Scotland’s future, which builds on Canada’s approach towards Quebec, is a testament to the fact that a peaceful and democratic debate over separatism is possible. It may yet be the case that other European governments choose to adopt a similar approach; the most obvious cases being Spain and Belgium towards Catalonia and Flanders.

However, for the meanwhile, the British and Canadian examples remain very much the exception rather than the rule. In most cases, states still do everything possible to prevent parts of their territory from breaking away, often using force if necessary.

It is hardly surprising that most states have a deep aversion to secession. In part, this is driven by a sense of geographical and symbolic identity. A state has an image of itself, and the geographic boundaries of the state are seared onto the consciousness of the citizenry. For example, from an early age school pupils draw maps of their country. But the quest to preserve the borders of a country is rooted in a range of other factors. In some cases, the territory seeking to break away may hold mineral wealth, or historical and cultural riches. Sometimes secession is opposed because of fears that if one area is allowed to go its own way, other will follow.

For the most part, states are aided in their campaign to tackle separatism by international law and norms of international politics. While much has been made of the right to self-determination, the reality is that its application is extremely limited. Outside the context of decolonisation, this idea has almost always taken a backseat to the principle of the territorial integrity of states. This gives a country fighting a secessionist movement a massive advantage. Other countries rarely want to be seen to break ranks and recognise a state that has unilaterally seceded.

When a decision is taken to recognise unilateral declarations of independence, it is usually done by a state with close ethnic, political or strategic ties to the breakaway territory.Turkey’s recognition of the Turkish Republic of Northern Cyprus and Russia’s recognition of Abkhazia and South Ossetia are obvious examples. Even when other factors shape the decision, as happened in the case of Kosovo, which has been recognised by the United States and most of the European Union, considerable effort has been made by recognising states to present this as a unique case that should be seen as sitting outside of the accepted boundaries of established practice.

However, states facing a secessionist challenge cannot afford to be complacent. While there is a deep aversion to secession, there is always the danger that the passage of time will lead to the gradual acceptance of the situation on the ground. It is therefore important to wage a concerted campaign to reinforce a claim to sovereignty over the territory and prevent countries from recognising – or merely even unofficially engaging with – the breakaway territory.

At the same time, international organisations are also crucial battlegrounds. Membership of the United Nations, for example, has come to be seen as the ultimate proof that a state has been accepted by the wider international community. To a lesser extent, participation in other international and regional bodies, and even in sporting and cultural activities, can send the same message concerning international acceptance.

The British government’s decision to accept a referendum over Scotland’s future is still a rather unusual approach to the question of secession. Governments rarely accept the democratic right of a group of people living within its borders to pursue the creation of a new state. In most cases, the central authority seeks to keep the state together; and in doing so choosing to fight what can often be a prolonged campaign to prevent recognition or legitimisation by the wider international community.

James Ker-Lindsay is Eurobank EFG Senior Research Fellow on the Politics of South East Europe at the European Institute, London School of Economics and Political Science. He is the author of The Foreign Policy of Counter Secession: Preventing the Recognition of Contested States (2012) and The Cyprus Problem: What Everyone Needs to Know (2011), and a number of other books on conflict, peace and security in the Balkans and Eastern Mediterranean.

Subscribe to the OUPblog via email or RSS.
Subscribe to only articles on law and politics on the OUPblog via email or RSS.

The post Secession: let the battle commence appeared first on OUPblog.

Add a Comment

By David Sugarman

This recording of my lengthy interview with H.L.A. Hart (1907–1992) has been resurrected from my audio tapes and given new life. Dusted and digitalized, the result is something quite beautiful. Here is Hart in his own words recorded in 1988, reviewing his life, his work, and his significance. The interview presents Hart as three individuals: legal philosopher, interviewee, and critic. The recording adds another dimension to our understanding of Hart that must be incorporated into our collective memory.

Within the English-speaking world, Hart is frequently regarded as the twentieth century’s foremost legal philosopher. He revived the moribund discipline of jurisprudence, re-orientating it so that the qualities associated with analytical philosophy in the second half of the 20th century — rigorous standards of rational argument, clarity and lucidity, a preoccupation with subtle conceptual distinctions, and a sensitivity to language and its logic — were applied to the investigation of the most fundamental concepts of law and to major public issues, notably, the complex relation between law and morality. As a colleague, teacher, mentor and author, Hart exercised a profound influence, an influence that extended to the “real world” and “real issues”. From the late 1950’s onwards, he championed a new humaneness in punishment, speaking and writing for a right to abortion and against both the death penalty and the prosecution of people because of their sexual preferences. His exploration of the balance between the modern welfare state and individual liberty — in particular, the legitimate use of state power to impose standards of private morality — produced an eloquent and highly influential manifesto for modern political liberalism. As Tony Honoré, his close colleague at Oxford, put it, “He was the most widely read British legal philosopher of the twentieth century and his work will continue to be a focus of discussion.”

The present interview with Hart took place in his rooms at University College, Oxford, on 9 November 1988. The interview delineates the particulars of Hart’s life and work: his background, early education, and undergraduate studies; learning law, practising at the Bar, and journalism; working in military intelligence; the early years as a philosophy don and the principal philosophical influences that shaped his work; and the state of Oxford jurisprudence in the 1940s and 1950s. It then addresses Hart’s work and ideas between 1945 and the 1980’s: his appointment to the Chair of Jurisprudence at Oxford; the Hart-Fuller Debate and his year at Harvard; the writing of Causation in the Law and The Concept of Law ; the 1950’s, the Cold War, and the 1960’s; “The Hart-Devlin Debate”; and what Hart called, “the Thatcher world”. The interview also illuminates Hart’s work beyond legal and political philosophy — the seminars to Labour Party groups on closing loopholes in the tax law; and the duties he undertook for the Monopolies Commission (1967-73) and the Oxford University Committee on Staff-Student Relations (the “Hart Report”, 1968-69). The interview includes Hart’s assessement of Bentham, Nozick and Dworkin, a general discussion of the virtues and limitations of sociology, sociological jurisprudence and analytical jurisprudence, of legal education, and the relationship between university legal education and the legal profession. A succinct summary of Hart’s contribution to legal philosophy brings the interview to a close. The interview is published verbatim — save for one brief comment by Hart that he asked me not to reproduce. Whilst the ordering of the interview was broadly chronological, the too-and-fro of conversation meant that subjects were returned to or introduced out of sequence.

The interview was one of a series that I have undertaken since 1986 with leading British legal scholars as part of an on-going research project mapping the history of modern English legal education and scholarship. Nicola Lacey’s illuminating biography of Hart used this interview as one of its main sources, and an edited version of the interview, excluding the material on legal education at Oxford, was published in 2005. Since its publication, the interview has been frequently cited. It was one of the main sources used by Brian Simpson in his Reflections on ‘The Concept of Law’. Simpson told me that he listened to the audio tape of the interview again and again as he was writing the book, and that hearing Hart’s voice inspired him in his struggle to complete it during his final battle with cancer.

At the time of the interview, Hart was 81 and physically frail. But he was one of the cleverest people I have ever met. His mind was sharp, and he tended to respond quickly and very clearly. Once the interview was under way, we both started to relax and enjoyed what became a friendly but challenging exchange. The interview reveals an unpretentious, reserved man, concise, diffident, and with a wry sense of humour. He talks of the enormous intellectual stimulus afforded by his visit to the United States in 1967-7 at the invitation of Harvard University, the pleasure he derived from his membership of the Monopolies Commission, and his outrage at the policies of the Conservative Government of Margaret Thatcher. The intellectual, moral, and political underpinnings of his work are apparent. Likewise, his limited intellectual interest in law and legal education, his elevation of the value of a philosophical approach to legal material, and his suspicion of sociology and the sociology of law are evident, as is his preoccupation with challenges to his work, in particular, by his successor in the Oxford chair, Ronald Dworkin. Also apparent is a poignant tension between intellectual confidence and self-doubt about his legacy.

At the end of the interview, and with the tape recorder switched off, Hart continued to talk about a variety of topics. He encouraged me to learn Italian, so that I could read the work of the Italian legal and political philosopher, Norberto Bobbio (1909-2004). Hart said that he knew, and corresponded with, Bobbio; and that Bobbio was the contemporary legal and political philosopher he most admired and related to. There was also more talk that evinced Hart’s sensitivity to criticism; and his preoccupation with writing an “Answer to Dworkin”, as Hart called it. Hart concluded by saying that I was free to publish the interview, and that he had no wish to review or revise it.

H.L.A. Hart on Childhood and Early Career
[See post to listen to audio]

H.L.A. Hart on Major Philosophical Influences
[See post to listen to audio]

H.L.A. Hart on his Early Philosophical Work
[See post to listen to audio]

H.L.A. Hart on his Harvard visit and Fuller Exchange
[See post to listen to audio]

H.L.A. Hart on the Major Works
[See post to listen to audio]

H.L.A. Hart on Dworkin and the Nature of Legal Philosophy
[See post to listen to audio]

H.L.A. Hart on Public Work
[See post to listen to audio]

H.L.A. Hart on Analytic Philosophy and Legal Scholarship
[See post to listen to audio]

H.L.A. Hart on his Political Views, Legal Education, and Legacy
[See post to listen to audio]

I feel sure that the importance of the interview rests primarily in the fact that you hear Hart’s voice, both his vivid cadences and also aspects of his character that other work on Hart tends not to evoke. Part of Hart was confused and diffident. Part of him was confident, acerbic and somewhat intolerant of anything beyond his own approach. Yet he was always open to argument and persuasion. These contradictions are the essence of his complexity.

It is in listening to Hart’s voice that we can get closer to Hart. There has been much critical analysis of his ideas — most recently in the context of commemorating the 50th anniversary of his landmark work, The Concept of Law. The images of Hart derived from his scholarship, diaries and other sources, including photographs, and from his personal relations, as a teacher, mentor, colleague, husband and friend, have generated multiple discourses in which commentators have appraised Hart the jurist and Hart the person. In the interview we hear Hart in conversation. As he and I speak about Hart’s ideas and the evolution of his life, there are interruptions, hesitations, and awkward silences which, like a work of scholarship or a diary entry, can be interpreted in many ways. One can imagine the conversation, the glances back and forth between the legal philosopher and his interviewer. Nervousness and unease are apparent; but so are authority and certainty.

The wider availability of this recording will generate new opportunities to understand and assess Hart’s personality and scholarly reputation. The poet, Sylvia Plath, wrote in her journal, “Recreate life lived: that is renewed life.” In bringing Herbert Hart’s voice to us now, this interview will do just that.

Professor David Sugarman, FRHistS, is the Director of the Centre for Law and Society at Lancaster University Law School. HLA Hart was Professor of Jurisprudence at Oxford University and the Principal of Brasenose College, Oxford. He authored The Concept of Law, one of the seminal works of English-language jurisprudence. He passed away in 1992.

Subscribe to the OUPblog via email or RSS.
Subscribe to only law and politics articles on the OUPblog via email or RSS.
View more about this book on the

The post In his own voice: H.L.A. Hart in conversation with David Sugarman appeared first on OUPblog.

Add a Comment

By Edward Zelinsky

Among the bitter but unnecessary controversies of this election year was the dispute about the federal government’s mandate that employers provide contraception as part of their health care coverage for their employees. Employers religiously opposed to contraception believe this mandate infringes their right of Free Exercise of religion under the First Amendment. Advocates of the contraception mandate characterize it as vital to women’s health and choice.

This acerbic controversy is totally unnecessary. This dispute can be diffused by health savings accounts (HSAs) or similar employer-funded medical accounts under the employee’s control. Such a solution should be appealing to political leaders committed to civil discourse and mutual respect for opposing views. Unfortunately, such leaders appear to be in short supply.

Substantively, the most recent event in this controversy is the decision of US District Judge Reggie B. Walton. Judge Walton recently held that the contraception mandate violated the rights of Tyndale House Publishers, Inc., a Christian publishing company opposed on religious grounds to certain of the mandated forms of contraception. Judge Walton held that the contraception mandate violates the Religious Freedom Restoration Act.

Earlier in the year, Missouri’s legislature, overriding the veto of Governor Jay Nixon, declared that Missouri employers religiously opposed to contraception need not provide contraception as part of their employees’ medical coverage. This Missouri law directly defies the contrary federal mandate adopted as part of President Obama’s health reform package.

On this issue, serious and sincere people come to different conclusions. These differences can be accommodated by requiring employers with ethical or religious qualms about any particular type of medical care to fund HSAs or similar accounts under employees’ control. Such accounts enable the employees to make their own decisions about the medical services such employees obtain with their employer-funded health care dollars.

HSA supporters tout such accounts to control medical costs and to increase consumer autonomy. But HSAs can also diffuse religious and ethical controversy by shifting contentious choices from employers to employees.

If employers have religious or ethical scruples about providing contraception or other medical services, they should instead pay into independently-administered HSAs for their employees. Employees who want these services could then purchase such services with the pre-tax funds in these accounts – just as such employees can today purchase these services with their post-tax salary dollars.

Like all compromises, this proposal is imperfect. A religious employer might object that it knows that its payments to independently-administered HSAs are underwriting services to which the employer objects. But the employee can use his or her salary dollars in ways to which the employer objects. At some point, the religiously sincere employer must acknowledge that control of compensation has shifted from the employer to the employer’s employees. And health care dollars are part of the employee’s compensation package.

The proponents of birth control and other similar medical services can object that employees purchasing such services through HSAs or similar accounts will pay more than employers who can purchase such services more cheaply because of economies of scale. That is an argument for improving the operation of the market for medical services through better information about the prices of such services and for the proponents of such services to themselves harness economies of scale by aggregating purchasers.

Many details must be decided before implementing this proposal. Most obviously, we must decide how much the religious employer must contribute to each employees’ HSA for the employer to be released from the mandate he considers religiously objectionable. This concern, like others, can be resolved by those committed to civil management of our differences.

While the public discussion has to date been stimulated by employers religiously opposed to providing contraception and abortion services, there may be other employers whose religious convictions preclude them from providing other kinds of health care services. Some employers who are Christian Scientists, for example, might object to some or all of the package of medical services being mandated by the federal government. If so, these employers should also be given the alternative of funding HSAs or other similar accounts which shift control of health care dollars to the employees.

A genuinely diverse society must be tolerant of genuine diversity. In this spirit, employers with religious objections to particular medical practices and services should be given the alternative of funding employees’ HSAs instead.

Edward A. Zelinsky is the Morris and Annie Trachman Professor of Law at the Benjamin N. Cardozo School of Law of Yeshiva University. He is the author of The Origins of the Ownership Society: How The Defined Contribution Paradigm Changed America. His monthly column appears on the OUPblog.

Subscribe to the OUPblog via email or RSS.
Subscribe to only business and economics articles on OUPblog via email or RSS.
View more about this book on the

Image credit: Doctor With Piggy Bank. Photo by prosot-photography, iStockphoto.

Add a Comment

By John Louth and Merel Alstein

What is a state? We think we know but when we compare things that are (e.g. Monaco, Andorra, Liechtenstein) to things that are not (e.g. Scotland, Kosovo, Palestine) our understanding unravels. This is a core question of international law and the troubling thing is that the best experts in the subject wouldn’t give a consistent explanation for the differences between these examples.

The UN is the closest thing we have to a world government. It is founded on a legal document (The UN Charter), it has a Court to resolve disputes between members, it has a Parliament of states (the General Assembly), and crucially, unlike its predecessor the League of Nations, it can authorize collective enforcement of its will (via the Security Council). There are dozens of other international organizations getting on with regulating different aspects of the world’s behaviour, so how come in spite of this appearance of a legal order, international law seems incapable of addressing urgent problems of poverty, violence, and climate change? How come the powerful get away with breaking the law? Why does justice so often get trumped by expediency?

Maybe that’s not fair — our national governments suffer from these same failings too. They do some basic things well (international law does a great job co-ordinating postage and telecoms) but can’t seem to manage the big breakthroughs. Surely there is a difference though: we created the international system to improve on what our governments can achieve on their own. If it can’t do better, then what is the point?

Today more people than ever before are engaged with international law. Many are, as one would expect, learning and applying it, but an increasingly vocal proportion question its role, its effectiveness and even its very existence. If it is to fulfil its promise, international law needs to rise to the following challenges.

(1) Is it law or is it just about power?

International lawyers are tired of hearing this question but it isn’t addressed to them. It is addressed to the leaders who take part in a legal order yet subvert it at the same time. Every state sends and receives diplomats yet simultaneously carries out espionage. States choose to use law to enforce some obligations whilst insisting not to be bound by others. The late great Sir Ian Brownlie used to say “if you doubt the reality of international law, have a look at my bank balance”, i.e. his clients (states) were paying him so they must believe it in. But that is just the problem — the very actors that Brownlie cited as proof of the reality of the law are the ones who can also make it seem like an optional extra, not a source of obligation.

(2) Who does it apply to?

Nowadays many of the entities regulated by so-called international law are not nations: corporations, international organizations, indigenous peoples, individuals, armed resistance groups. Cases at the International Criminal Court pit its Prosecutor (an individual acting on behalf of an international organization) against an individual criminal defendant. Then a group comes along who certainly seem to merit the protection of international law, such as the Guantanamo detainees, and we find that they don’t fit into any accepted legal category. If states can insist that only those laws they consent to can bind them, what about all of these other entities? Do they get more of a say in the content and application of the law? Should there be gaps in protection from human rights abuses?

(3) Where does it reach?

This follows from the last question. International law claims to reach directly into domestic legal systems; treaties apply to situations and places that nobody ever expected when they were first agreed. Then we have the increased use of outer space and the virtual arena of cyber space to contend with. Will these develop as adaptations of international law and if so would that not begin to stretch “international law” to the point where it is so diverse as to be meaningless?

(4) Are we expecting too much from a legal system?

International law can only move forward when there is a political consensus that it should. In the absence of political will, it is impossible to subject new areas to international law or to increase its reach. It is hard to square this compromising approach with international law’s progressive and at times utopian spirit. The planned recognition of Palestine as a state is a good illustration of the pragmatic dilemma: the legal order is advanced (by recognizing a new state) whilst also undermined (by restricting what statehood means).

(5) How can we know the content of international law?

The two primary sources of international law are custom and treaties. Whilst nothing involving lawyers is ever clear cut, treaties are vastly easier to engage with than custom, the exact nature of which remains shrouded in mystery. How customary law is formed and who is bound by it are matters that are crying out for authoritative resolution. For international law to be taken more seriously it is vital that the processes and content of custom are clarified and made available to all those who might use it or be affected by it.

Scholarly legal publishing has its part to play. We cannot of course makes statesmen and women take their obligations more seriously nor put in place the economic prosperity in which ideas of justice and fairness have a better chance of taking root. We can however nurture scholarship which looks to clarify the nature, content, and scope of international law.

John Louth is editor-in-chief of academic law books, journals and online, and head of Oxford University Press’ US law office. Merel Alstein is commissioning editor for books in the area of international law.

Subscribe to the OUPblog via email or RSS.
Subscribe to only law and politics articles on the OUPblog via email or RSS.
View more about The Charter of the United Nations: A Commentary on the

Image credit: School of Law. Photo by SeanPavonePhoto, iStockphoto.

Add a Comment

By Jennifer Burns

How does being a guest on The Colbert Report compare to being a guest on The Daily Show? Here’s a breakdown!

More Face Time with Everyone: Backstage at The Daily Show was a blur; I had no sooner arrived than I was in make-up, met Jon, and was heading out into the lights. By contrast, I had lots of time at The Colbert Report to see the stage, meet the producers, and chat with sundry tech people. And I got way more face time with Stephen Colbert! “I’m not my character!” was pretty much the first thing he said to me. He explained that he would feign willful ignorance and my job was to educate him and the audience. And of course we talked about Ayn Rand. Colbert told me he read Anthem in a Christian ethics class in college, and then while backpacking in Europe traded somebody for Atlas Shrugged. But he only made it to the scene where Dagny discovers world renowned philosopher Dr. Hugh Akston flipping burgers at a roadside diner and recognizes his genius by the way he handled a spatula — this stretched credulity for Colbert and he gave up on reading the rest!

The Audience: The audience was a much more intimate part of The Colbert Report than The Daily Show, where guests make a grand entrance and can’t even see the audience because of the blinding lights. This time, I was seated on the set for about a minute beforehand in full view of the audience, and their laughter and response seemed a bigger part of the interview. While I was waiting to go on, I could hear everyone laughing uproariously, clearly having a great time, and that made me feel excited and ready.

The Host: The biggest difference, of course, is Jon vs. Stephen, but I had an unexpected reaction. Where most people seem to think Stephen Colbert would be a more difficult interview, I actually found him to be personally warmer and easier to talk to than Jon Stewart. Some of this was because I felt more confident the second time around. But the interview itself was also less serious and more of a performance, whereas on The Daily Show I felt I was being grilled by a formidable intellect. Before The Daily Show interview, the producer told me it would be extemporaneous, and that Jon didn’t have notes. But as I was waiting for my interview with Colbert to start, I was told he was finalizing his jokes. When I was seated on the set, I could see a detailed note card on Stephen’s side of the table. I’m pretty sure we veered off the script, but that level of planning was reassuring. The Colbert producer also did a great job of helping me understand what would create a good interview. Her top piece of advice (which I also heard at The Daily Show): “Don’t be funny!”

Author Jennifer Burns on The Colbert Report

Author Jennifer Burns on The Daily Show with Jon Stewart

Jennifer Burns is Assistant Professor of History at Stanford University and the author of Goddess of the Market: Ayn Rand and the American Right. A nationally recognized authority on Rand and conservative thought, she has discussed her work on The Daily Show, The Colbert Report, Book TV, and has been interviewed on numerous radio programs. Read her previous blog post: “Top Three Questions About My Interview On The Daily Show”

Subscribe to the OUPblog via email or RSS.
Subscribe to only American history articles on the OUPblog via email or RSS.
Subscribe to only law and politics articles on the OUPblog via email or RSS.
Subscribe to only business and economics articles on the OUPblog via email or RSS.
View more about this book on the

Add a Comment

By David Karpf

Clint Eastwood took the stage at the Republican convention last week and gave a… well, let’s call it a memorable performance. I’m not sure if there’s ever been such a bizarre prime time address given at a national convention. The celebrated actor/director spent eleven minutes in a mumbling debate with an empty chair representing President Obama. Political conventions are highly-scripted events. Eastwood’s extended, failed ad lib was anything but scripted.

In years past, such a performance would have provided fodder for late-night comedians, but little more. Saturday Night Live and Letterman could weigh in, while you and I were left to passively chuckle. Living in the age of social media, events unfolded at a different pace and among different participants.

Within minutes, an anonymous Twitter user registered the name @InvisibleObama. Conjuring shades of @MayorEmanuel, the participatory features of the hybrid news environment allowed formerly-passive members of the audience to swap jokes. That evening, Twitter users launched a new hashtag, “#eastwooding,” wherein individuals post pictures of themselves pointing at empty chairs. Thusly a new “meme” was born.

Within less than a day, @InvisibleObama has attracted over 55,000 Twitter followers. Newsweek/DailyBeast has posted an #Eastwooding “best of” list. CNN covered it as well. Participatory engagement with Eastwood’s odd performance made itself became the subject of news.

The President himself even weighed in, tweeting “This Seat’s Taken.”

This is all in good fun, of course. Twitter during national events adopts the texture of a giant Mystery Science Theater 3000 episode. But in the course of this distraction, one might wonder, does it actually make any difference?

I would argue that political memes and twitter games like #eastwooding have a very specific, but very limited, effect.

Let’s start with the obvious limitations: @InvisibleObama and #Eastwooding will have no direct impact on the outcome of the 2012 election. These are games played by the already-politically-engaged. 55,000 Twitter followers is a drop the ocean compared to the ~38 million total viewers of the Republican National Convention, or the 100 million+ citizens who will cast a vote in the November election. Individuals who #Eastwood are among the most attentive segments of the populace. They’re also more likely to be liberal. Conservatives have taken to defending Eastwood’s display as counter-intuitively good for Romney. #Eastwood’ers have already made up their minds, and they each only have one vote.

Secondary effects are also pretty limited. Politically-aware Twitter users tend to be connected to one another (social network theorists call this phenomenon “homophily”). We should not expect individuals who chose to ignore the RNC convention to pick up on it after-the-fact due to social media chatter.

Furthermore, memes of this sort have a pretty brief half-life. With the Democratic National Convention scheduled for this week, the hybrid media system will quickly turn its attention to a new set of images and statements. One impact of new media on political news is that the “churn” of the news cycle has sped up. Congressman Todd Akin’s outlandish claims about female biology already seem part of the distant past. By the time of the October Presidential debates, #Eastwooding will have been replaced a half-dozen times. We shouldn’t expect it to be on anyone’s mind when they enter the voting booth.

That said, the limited size and duration of these Twitter memes doesn’t render them useless. In very particular ways, this participatory nature of the new media system has an important effect on media and politics today.

Consider this post as an example:

BuzzFeedBen is Ben Smith, formerly of Politico.com, current editor-in-chief of Buzzfeed.com. Ryan Lizza is an accomplished political journalist whose work has appeared in The New Yorker, The New Republic, The Atlantic, and Vanity Fair. Other journalists, such as Slate’s Dave Weigel, also joined in the fun.

These journalists aren’t revealing some hidden liberal bias through their actions; they are revealing a participatory bias. A small segment of the US population pays a lot of attention to politics. The hybrid media environment allows journalists to engage with these attentive citizens. The interactions can help shape news coverage, or (in cases where the media runs stories on #Eastwooding) become the subject of news coverage. Rather than writing about the policy details (or lack thereof) in Romney’s acceptance speech, many news outlets turned instead to Eastwood’s odd performance, and the global audience’s playful reaction. This changes the texture and content of media coverage.

The Internet didn’t cause this merger of news and entertainment. It began in the 1980s, as newsrooms sought higher ratings and larger profits. Political communication scholars raised concerns about “infotainment” before the average citizen owned a modem. Twitter isn’t the cause of this merger; it is merely the latest iteration.

The limitations of these incidents are likewise nothing new. Everyday political gaffes don’t determine the outcome of a national election. Today’s media environment churns faster, so we see more of the gaffes. It is also more segmented, so those of us who aren’t interested in seeing them can tune out more easily.

Cases like #Eastwooding provide a variation on these longstanding trends. American politics has accepted the blurring of political news and political entertainment. Social media provides a participatory element, making the entertainment aspects much more entertaining.

David Karpf is an Assistant Professor in the School of Media and Public Affairs at George Washington University. He is the author of The MoveOn Effect: The Unexpected Transformation of American Political Advocacy. His research focuses on the Internet’s disruptive effect on organized political advocacy. He blogs at shoutingloudly.com and tweets at @davekarpf.

Oxford University Press USA is putting together a series of articles on a political topic each week for four weeks as the United States discusses the upcoming American presidential election, and Republican and Democratic National Conventions. Our scholars previously tackled the issues of money and politics, and the role of political conventions. This week we turn to the role of media in politics. Read the previous article in this series: “Networked politics in 2008 and 2012.” And you can see OUP’s contribution to #Eastwooding on Google Plus.

Subscribe to the OUPblog via email or RSS.
Subscribe to only law and politics articles on the OUPblog via email or RSS.
Subscribe to only media articles on the OUPblog via email or RSS.
View more about this book on the

Image credits: Both screencaps were taken on 4 September 2012 at 11:11 am ET.

Add a Comment

By Darren Meale

The fact that the Internet is so hard to police — and that no single authority is in a position to dictate what it should and should not contain — should be cause for celebration for anyone with an interest in the freedom of speech, expression, and the sharing of ideas. But the Internet has two faces. For every positive exercise of those and other freedoms, there’s an act of fraud, counterfeiting, and copyright infringement. How is the law — in particular the English legal system — attempting to stem the tide of the last problem (online infringement) and take pirates down?

Attacks are being made on two main fronts in the UK. The first is via section 97A of the Copyright, Designs and Patents Act 1988. This permits a court to order a service provider — which could be an ISP, a search engine, or a social networking website — to block its users from accessing infringing material. To take ISPs as an example: when there are perhaps millions of infringing users in the UK using the internet access services of only six major ISPs, it’s going to be much easier to pursue those intermediaries than it is the individuals.

Although section 97A has been around since 2003, the first real attempt to use it wasn’t until 2011. The film industry brought a test case against the UK’s largest ISP, BT, seeking a court-ordered block of an infringing service called NewzBin2. BT heavily resisted the attempt, but every ground it raised was dismissed by the High Court and a block was ordered. This year it was the turn of the music industry, which sought blocks from BT and the remaining five major UK ISPs against the celebrity poster-boy of internet piracy: The Pirate Bay (TPB). With none of the ISPs willing to defend such an obviously dubious service, the High Court easily found TPB to be infringing copyright in February of this year. With little to distinguish TPB from NewzBin2, the ISPs then largely gave up the fight and dropped any opposition to a block. This was then ordered in May.

While section 97A has been making waves since its first appearance last year, the second front has been bobbing along in calm waters. Key provisions of the Digital Economy Act 2010 impose obligations upon ISPs to notify their subscribers, once those ISPs have been informed by copyright owners that those subscribers are suspected of infringing copyright, mostly likely via peer-to-peer file sharing (via sites such as TPB). Repeat offenders are put on what is effectively a “naughty list” and copyright owners can use those lists to pick juicy targets for taking further action. Two major ISPs tried to knock the Act out by launching judicial review proceedings, complaining that it offended European and human rights laws. They failed overall, but their actions have delayed the introduction of the Act’s notification regime. A final draft of the Initial Obligations Code (the Code), which sets out the details of the regime’s operation, has now been prepared by Ofcom (the UK’s communications regulator) and was put out for a consultation which ended in July. But there is a lot of work to be done before the regime begins. For example, an independent appeals body is to be created to deal with subscribers who wish to appeal an allegation of infringement. Accordingly, the Government does not expect the first notification letter to be sent until 2014. In the immediate term the Code will not provide for any real sanctions against subscribers beyond receipt of the letter, and accordingly can be criticised as lacking teeth.

While introducing the Digital Economy Act is probably better than doing nothing, the Newzbin2 and TPB cases suggest that section 97A is the far more effective weapon against piracy. Service providers may now be more motivated to assist copyright owners to police their services, if the alternative is to face the cost and bother of a section 97A application that the odds are they’ll lose. There is no direct connection, but in response to industry pressure Google (which may be the next target for a section 97A application) has recently agreed to demote websites from its search results where it has repeatedly received reports of those sites hosting infringing material. It’s a start, but it won’t remove them from its listings altogether.

The UK can’t, of course, solve this problem alone. A number of jurisdictions now have bespoke anti-file-sharing laws in place. These include France (HADOPI); Spain (Ley Sinde); South Korea and New Zealand. Others are in development. As well as being legally challenging, these sorts of measures are also proving politically controversial. Proposed legislation in the USA — SOPA (Stop Online Piracy Act) and PIPA (PROTECT IP Act) — met with huge public opposition earlier this year and are being reconsidered, but may still come to pass in some form. Before leaving power, President Sarkozy of France hailed HADOPI as hugely successful. The new government in France is reported to be less enthusiastic about the law and its multi-million Euro yearly cost.

It’s worth finishing with a note on circumvention. Very few, if any, of the measures discussed above are foolproof. Many (website blocks for example) are fairly straightforward to get around. Although a large proportion of casually infringing Internet users may not know how, a Google search for “How do I get around The Pirate Bay block?” reveals plenty of results, including several videos on Google’s own YouTube. Ironically, when I clicked on the first video in the list, I was presented with an advert for one of 20th Century Fox’s soon to be released (and no doubt, pirated) movies. Evidently, there’s still a lot of work to be done.

Darren Meale is a Senior Associate and Solicitor-Advocate at SNR Denton, specialising in intellectual property litigation and advice. He has particular expertise and interest in digital rights issues, including the way in which the Internet and new digital technologies interact with and potentially infringe intellectual property rights. His recent paper, ‘Avast, ye file sharers! The Pirate Bay is sunk’, has been made freely available for a limited time by the Journal of Intellectual Property Law and Practice.

JIPLP is a peer-reviewed monthly journal. It is specifically designed for IP lawyers, patent attorneys and trade mark attorneys both in private practice and working in industry. It is also an essential source of reference for academics specialising in IP, members of the judiciary, officials in IP registries and regulatory bodies, and institutional libraries. Subject-matter covered is of global interest, with a particular focus upon IP law and practice in Europe and the US.

Subscribe to the OUPblog via email or RSS.
Subscribe to only law and politics articles on the OUPblog via email or RSS.

Image credit: Pirate button on computer keyboard. Photo by Sitade, iStockphoto.

Add a Comment

By Elvin Lim

The Republicans’ convention bump for Mitt Romney appears to be muted. Why? There was a lot of bad luck. Holding the convention before the Labor Day weekend caused television viewership to go down by 30 percent, as did the competing and distracting news about Hurricane Isaac. The Clint Eastwood invisible chair wasn’t a disaster, but a wasted opportunity that Romney’s advisors should have vetted. Valuable time that could have been spent promoting Romney (such as the video of him that had to be played earlier) before he came out to speak on prime time, was instead spent in a meandering critique of Obama.

Obama’s first remarks about the convention was that it was something you would see on a black-and-white tv — a new spin on the Republican Party as allegedly backward, as opposed to the Democrat’s who lean “Forward.”

The most revealing thing about the convention was that President George W. Bush wasn’t asked to speak. Instead, he appeared in a video with the older Bush, possibly in a bid to mollify the presence of the younger. Republicans are still divided over Bush, which is why they continued their hagiography of Reagan in the convention. For all of Jeb Bush’s intonations for the Obama campaign to stop putting blame on the previous administration, the fact is that the convention conceded that George W. Bush was indeed a liability. “Forward” is a narrative that can work as long as the look immediately backwards isn’t too satisfying.

On the other side, Bill Clinton will of course make an appearance in Charlotte in next week. The Democrats have also wisely flooded the speakers’ list with women, to show that the Republicans’ paltry presentation of just five women represent the tokenism narrative that Democrats are trying to paint. Women are America’s numerically biggest demographic and they are more likely to turn out than men (by 4% in 2008).

In this final stretch, the gurus are gunning straight for the demographics. Campaigning has become a science, albeit an imperfect one. The Romney campaign now knows that a generic refutation of the Obama’s performance about the economy, jobs, the national debt — which we’ve been hearing for nearly four years — is not going to change the underlying tectonics of voter sentiment. This is why they tried to elevate the Medicare issue last week, and why they’re trying the personalize Romney strategy this week. The latter is more likely to work, and it should be done quickly, because next week, the DNC intends to make America fall in love with Barack Obama again.

Elvin Lim is Associate Professor of Government at Wesleyan University and author of The Anti-Intellectual Presidency, which draws on interviews with more than 40 presidential speechwriters to investigate this relentless qualitative decline, over the course of 200 years, in our presidents’ ability to communicate with the public. He also blogs at www.elvinlim.com and his column on politics appears on the OUPblog regularly.

Subscribe to the OUPblog via email or RSS.
Subscribe to only politics and law articles on the OUPblog via email or RSS.
View more about this book on the  

Add a Comment

By Andrew J. Polsky

No Easy Day, the new book by a member of the SEAL team that killed Osama bin Laden on 30 April 2011, has attracted widespread comment, most of it focused on whether bin Laden posed a threat at the time he was gunned down. Another theme in the account by Mark Owen (a pseudonym) is how the team members openly weighed the political ramifications of their actions. As the Huffington Post reports:

Though he praises the president for green-lighting the risky assault, Owen says the SEALS joked that Obama would take credit for their success…. one SEAL joked, “And we’ll get Obama reelected for sure. I can see him now, talking about how he killed bin Laden.”

Owen goes on to comment that he and his peers understood that they were “tools in the toolbox, and when things go well [political leaders] promote it.” It is an observation that invites only one response: Duh.

Of course, a president will bask in the glow of a national security success. The more interesting question, though, is whether it translates into gains for him and/or his party in the next election. The direct political impact of a military victory, a peace agreement, or (as in this case) the elimination of a high-profile adversary tends to be short-lived. That said, events may not be isolated; they also figure in the narratives politicians and parties tell. For Barack Obama and the Democrats in 2012, this secondary effect is the more important one.

Wartime presidents have always been sensitive to the ticking of the political clock. In the summer of 1864, Abraham Lincoln famously fretted that he would lose his reelection bid. Grant’s army stalled at Petersburg after staggering casualties in his Overland campaign; Sherman’s army seemed just as frustrated in the siege of Atlanta; and a small Confederate army led by Jubal Early advanced through the Shenandoah Valley to the very outskirts of Washington. So bleak were the president’s political fortunes that Republicans spoke openly of holding a second convention to choose a different nominee. Only the string of Union victories — at Atlanta, in the Shenandoah Valley, and at Mobile Bay — before the election turned the political tide.

Election timing may tempt a president to shape national security decisions for political advantage. In the Second World War, Franklin Roosevelt was eager to see US troops invade North Africa before November 1942. Partly he was motivated by a desire to see American forces engage the German army to forestall popular demands to redirect resources to the war against Japan, the more hated enemy. But Roosevelt also wanted a major American offensive before the mid-term elections to deflect attention from wartime shortages and labor disputes that fed Republican attacks on his party’s management of the war effort. To his credit, he didn’t insist on a specific pre-election date for Operation Torch, and the invasion finally came a week after the voters had gone to the polls (and inflicted significant losses on his party).

The Vietnam War illustrates the intimate tie between what happens on the battlefield and elections back home. In the wake of the Tet Offensive in early 1968, Lyndon Johnson came within a whisker of losing the New Hampshire Democratic primary, an outcome widely interpreted as a defeat. He soon announced his withdrawal from the presidential race. Four years later, on the eve of the 1972 election, Richard Nixon delivered the ultimate “October surprise”: Secretary of State Henry Kissinger announced that “peace is at hand,” following conclusion of a preliminary agreement with Hanoi’s lead negotiator Le Duc Tho. In fact, however, Kissinger left out a key detail. South Vietnamese President Nguyen Van Thieu balked at the terms and refused to sign. Only after weeks of pressure, threats, and secret promises from Nixon, plus renewed heavy bombing of Hanoi, did Thieu grudgingly accept a new agreement that didn’t differ in its significant provisions from the October version.

But national security success yields ephemeral political gains. After the smashing coalition triumph in the 1991 Gulf War, George H. W. Bush enjoyed strikingly high public approval ratings. Indeed, he was so popular that a number of leading Democrats concluded he was unbeatable and decided not to seek their party’s presidential nomination the following year. But by fall 1992 the victory glow had worn off, and the public focused instead on domestic matters, especially a sluggish economy. Bill Clinton’s notable ability to project empathy played much better than Bush’s detachment.

And so it has been with Osama and Obama. Following the former’s death, the president received the expected bump in the polls. Predictably, though, the gain didn’t persist amid disappointing economic results and showdowns with Congress over the debt ceiling. From the poll results, we might conclude that Owen and his Seal buddies were mistaken about the political impact of their operation.

But there is more to it. Republicans have long enjoyed a political edge on national security, but not this year. The death of Osama bin Laden, coupled with a limited military intervention in Libya that brought down an unpopular dictator and ongoing drone attacks against suspected terrorist groups, has inoculated Barack Obama from charges of being soft on America’s enemies. Add the end of the Iraq War and the gradual withdrawal of forces from Afghanistan and the narrative takes shape: here is a president who understands how to use force efficiently and with minimal risk to American lives. Thus far Mitt Romney’s efforts to sound “tougher” on foreign policy have fallen flat with the voters. That he so rarely brings up national security issues demonstrates how little traction his message has.

None of this guarantees that the president will win a second term. The election, like the one in 1992, will be much more about the economy. But the Seal team operation reminds us that war and politics are never separated.

Andrew Polsky is Professor of Political Science at Hunter College and the CUNY Graduate Center. A former editor of the journal Polity, his most recent book is Elusive Victories: The American Presidency at War. Read Andrew Polsky’s previous blog posts.

Subscribe to the OUPblog via email or RSS.
Subscribe to only law and politics articles on the OUPblog via email or RSS.
Subscribe to only American history articles on the OUPblog via email or RSS.
View more about this book on the 

Add a Comment

By Edward Zelinsky

By selecting Representative Paul Ryan as the Republican vice presidential nominee, Romney confirmed the decline of the traditional role of vice presidential candidates as providers of geographic balance. Ryan’s selection reinforces the shift to a more policy-oriented definition of the vice presidency. This shift reflects the nationalization of our culture and politics and the increased importance of the general election debate between vice presidential candidates.

Traditionally, a vice presidential candidate usually came from a large swing state in a section of the country removed from the presidential candidate’s home state. The classic (and most successful) instance of this once conventional pattern was John Kennedy’s selection in 1960 of Lyndon Johnson as Kennedy’s running mate. Johnson was picked to deliver the electoral votes of Texas and other southern states to a ticket headed by a candidate from Massachusetts. It worked.

A generation later, another Democratic presidential nominee from Massachusetts, Michael Dukakis, emulated Kennedy by selecting as his vice presidential nominee Texas Senator Lloyd Bentsen. This time it didn’t work, but the Dukakis-Bentsen ticket fell well within the tradition of geographic balancing.

The new, policy-oriented pattern commenced in the next election in 1992 when Bill Clinton of Arkansas named as his running mate the senator from next door, Tennessee’s Al Gore. In terms of geographic balance, a Clinton-Gore ticket made no sense — two southerners from neighboring states.

Clinton saw the role of the vice president differently. Gore possessed Washington experience and connections Clinton lacked. Gore thus provided, not geographic balance, but national experience and expertise. This departure from traditional geographic ticket balancing worked for the Democrats both in 1992 and in 1996.

When it was Gore’s turn to choose a running mate in 2000, Gore too departed from tradition, turning to Connecticut’s junior senator, Joe Lieberman. True, Lieberman came from a northern state, Connecticut. But the Nutmeg State, then with eight electoral votes, was not a great electoral prize nor was it in serious doubt for the Democratic ticket. Gore turned to Lieberman because the ethically-challenged image of the Clinton Administration was a problem for Gore. Lieberman’s reputation for ethical probity provided useful ballast to the Democratic ticket.

But it was the Bush-Cheney ticket in 2000 which truly broke the geographic balancing mold. Bush did not pick Cheney for the vice presidency to secure Wyoming’s three electoral votes. Rather, the Texas Governor selected Cheney to bring to the ticket Cheney’s perceived gravitas including his experience as Wyoming’s congressman, Secretary of Defense, and White House Chief of Staff.

By 2008, it was no longer innovative when Barack Obama selected Joseph Biden of Delaware as his vice presidential running mate. Biden was not placed on the ticket to secure Delaware’s three electoral votes or otherwise secure geographic balance. Like Gore and Cheney, Biden was perceived as a Washington insider and policy expert. Biden’s experience augmented a ticked headed by a presidential candidate whose tenure in the nation’s capital consisted of a single, not-yet-completed term in the US Senate.

Ryan fits comfortably within the newer, policy-oriented vision of the vice presidency. It doesn’t hurt that Ryan comes from Wisconsin, a state the Republicans are eager to put into play. But unlike some of the other individuals Romney considered for the vice presidential nomination (such as Senator Portman of Ohio or Senator Rubio of Florida), Ryan doesn’t come from a major swing state. Indeed, Ryan himself has never run for statewide office in Wisconsin.

Ryan was picked because he is a young, articulate conservative policy wonk. Romney chose Ryan because of Ryan’s ideas, not Ryan’s home state.

What has caused this evolution of the vice presidency? A key factor is the nationalization of our culture and our politics. Kennedy and Johnson (as well as Dukakis and Bentsen) were individuals deeply rooted in their respective home states. We have become a more mobile nation. Barack Obama (born and raised in Hawaii, educated in California, New York, and Massachusetts) was a senator from Illinois. But his biography is itself a story of geographic balance.

The same is true of Mitt Romney, born and raised in Michigan, educated in California, Utah, and Massachusetts. Romney’s business career occurred in Massachusetts as did his one term as the Bay State’s governor. But no one even expects Romney to carry Massachusetts in November.

Just as the life stories of the presidential candidates are no longer centered in their “home” states, the electorate reflects America’s mobility as a nation. Consequently, geographic ties mean less today than they did in the past; roughly 40% of Americans today live in a different state than the state in which they were born.

Moreover, modern communications instantly nationalize our political figures. Paul Ryan will soon be as well-known in Texas as he is in Wisconsin. In this world of mobility and instant national communications, geographic ticket-balancing is less compelling than it was in the past.

A second factor buttressing the evolution of the vice presidency is the emergence of the vice presidential debates. When Kennedy and Nixon conducted the first presidential debates in 1960, there was no vice presidential debate between Johnson and the Republican nominee, Henry Cabot Lodge.

Today, the vice presidential debate is an important event on the campaign calendar. In picking a running mate, a presidential candidate must consider this event. My son Aaron and his colleagues at the Presidential Debate Blog correctly observe that Senator Bentsen uttered the most famous line in presidential debating: “Senator, you are no Jack Kennedy.” However, debate skills don’t always correspond with geographic balance. Ryan was in large measure selected because of his ability to go toe-to-toe, rhetorically and intellectually, with Vice President Biden.

We will, no doubt, some day again see a presidential candidate select his or her vice presidential running mate from a large swing state in a section of the country far from the presidential candidate’s home state. But that geographic balancing mold is now longer dominant.

Edward A. Zelinsky is the Morris and Annie Trachman Professor of Law at the Benjamin N. Cardozo School of Law of Yeshiva University. He is the author of The Origins of the Ownership Society: How The Defined Contribution Paradigm Changed America. His column ‘EZ Thoughts’ appears on the OUPblog monthly.

Subscribe to the OUPblog via email or RSS.
Subscribe to only law and politics articles on OUPblog via email or RSS.
View more about this book on the

Image credit: Seal of the Vice President of the United States. Source: Wikimedia Commons.

Add a Comment

Oxford University Press USA is putting together a series of articles on a political topic each week for four weeks as the United States discusses the upcoming American presidential election, and Republican and Democratic National Conventions. Our scholars previously tackled the issues of money and politics, and the role of political conventions. This week we turn to the role of media in politics.

By Daniel Kreiss

A recent Pew study on the presidential candidates’ use of social media described Barack Obama as having a “substantial lead” over Mitt Romney. The metrics for the study were the amounts of content these candidates post, the number of platforms the campaigns are active on, and the differential responses of the public.

Metrics such as these often tell us very little about how campaigns are actually using social media and the Internet more generally, and their relative strategies for and success in doing so. If there is anything that I found in my last six years of researching new media and electoral campaigns, it is that much of what makes for the successful uptake of new media is often the organizational decisions that receive scant scholarly and journalistic attention. A focus on platforms and content tells us little about the issues of campaign organization, staffing, and coordination of digital and field efforts around electoral strategy that have much more impact on electoral success.

For one, both the Obama and Romney campaigns have created organizational structures that make the heads of their respective new media teams senior leadership. The Romney campaign learned this by studying Obama’s 2008 campaign, which was among the first efforts to organize a campaign in this way.

This organizational role, in turn, helps integrate new media operations within the larger electoral strategy of the campaign. This is important because effective campaigns take up new media in accordance with their electoral goals, and investments in new media have to be evaluated in light of overall campaign strategy. There are very real differences between the presidential candidates, their parties, their supporter and donor bases, and electoral strategies — so much so that we should not expect them to have the same goals for, strategies of using, and investments in their use of new and social media.

During the 2008 cycle, for example, the Obama team took to new media early on, with the specific goal of using an array of tools to overcome the institutional advantages of Senator Hillary Clinton. For the campaign, this meant using new media as a fundraising and especially organizing tool in accordance with the larger electoral goal of expanding the electorate among groups favorable to Obama with historically low rates of turnout: youth and African Americans. Above all, it meant using new media to translate the incredible energy of supporters gathering around the candidate into resources that campaigns need: money, message, volunteers, and ultimately, votes. And yet, while this worked for Obama, other candidates with essentially the same tools could not inspire the same supporter mobilization. The story of the 2008 Obama campaign is neatly summed up in what Michael Slaby, the 2008 campaign’s chief technology officer and the 2012 campaign’s chief integration and innovation officer, said to me: “We didn’t have to generate desire very often. We had to capture and empower interest and desire…. We made intelligent decisions that kept it growing but I don’t think anybody can really claim we started something.”

In this light, the continual hope, exemplified in the Pew Study, for “transforming campaigning into something more dynamic, more of a dialogue,” and the inevitable let down when this does not occur, is a case of our democratic aspirations placing undo expectations on campaigns. Campaigns have very concrete metrics for success given electoral institutions. Campaigns are temporal entities with defined goals: garnering the resources and ultimately the votes necessary to win elections. They are not about democratic renewal, although certainly that can happen. Furthermore, much of the discourse calling for dialogue ignores a fundamental fact: the goals of campaigns and their supporters on social media are often closely aligned around defeating opponents. Supporters embrace tasks and respond to one-way messaging because their goal is to win on election day, not remake democratic processes.

Indeed, a close look at the networked tools campaigns across the aisle are now routinely using in 2012 reveals an emphasis on electoral gain, and integrating tools within larger electoral strategy. The story of the last decade in electoral campaigning has been both about a reinvestment in old fashioned, shoe leather campaigning coupled with new data infrastructures designed to more efficiently and effectively coordinate volunteers and leverage their time, efforts, and social networks. As Rasmus Nielsen has analyzed in his recent book, in the face of widespread practitioner recognition of the diminishing returns of broadcast television ads, fragmented audiences, narrowly decided contests, and social science findings, campaigns have increasingly enlisted humans as media through what he calls “personalized political communication.” Campaigns deploy field volunteers on the basis of voter modeling and targeting supported by a vast, national data infrastructure stitched together from a host of public (voter registration, turnout, and real estate records), commercial (credit card information, magazine subscription lists), party (historical canvass data), and increasingly social network data.

Leveraging people as media in the field complements the ways in which campaigns enlist supporters as the conduits of strategic communications to their strong and weak ties online. Campaigns seek to utilize the social affordances of platforms such as Facebook and Twitter to create what I call new “digital two step flows” of political communication, where official campaign content circulates virally through networks of supporters. On one level, geographic-based volunteering in supporters’ communities is now supported by networked devices, such as the Obama Dashboard volunteer platform that creates teams based on location, and mobile apps that display local voter contact targets and scripts for contacting them. On another, through networked media far-flung affinity, professional, and social ties can now serve as channels of political communication designed to mobilize donors and online volunteers. Campaigns believe that political communication coming from supporters contacting voters through their geographic and social networks is more persuasive.

Alongside the fashioning of supporters into media and their social networks into channels, campaigns have developed sophisticated “computational management” practices that leverage media as internal and external coordination devices. New media is a closed loop; every expenditure can be tracked in terms of its return on investment given the ability to generate real time results of supporters’ interactions with networked media. If creating digital two step flows remains more art than science as campaigns struggle to make content go viral, optimizing web content and online advertising is data-driven to probabilistically increase the likelihood that supporters will take the actions campaigns want them to. Optimization is based around continually running experimental trials of web content and design in order to probabilistically increase the likelihood of desired outcomes. This means campaigns vary the format, colors, content, shapes, images, and videos of a whole range of email and website content based on the characteristics of particular users to find what is most optimal for increasing returns. In 2008, for example, the Obama campaign created over 2,000 different versions of its contribution page, and across the campaign optimization accounted for $57 million dollars, which essentially paid for the campaign’s general election budgets in Florida and Ohio.

At the same time, while television advertising has dominated campaign expenditures for much of the last half century, campaigns are increasingly investing in online advertising, which is premised on being able to access new sources of behavioral, demographic, and affinity data that allows for the more sophisticated targeting and tailoring of political messages. Campaigns can match online IP addresses with party voter files, allowing them to target priority voters. Campaigns use this matching, along with behavioral, demographic, interest, and look-alike targeting (matching voters based on the characteristics they share with others with known political preferences), to deliver online ads for the purposes of list-building, mobilizing supporters to get involved, and persuading undecideds.

Despite the best attempts of staffers, campaigns remain messy, complicated affairs. While it would be easy to see things such as computational management and online advertising in Orwellian terms, the reality is that campaigns are continually creating and appropriating new tools and platforms because their control over the electorate is limited. Candidates still contend with intermediaries in the press, opponents engaging in their own strategic communications, and voters who have limited attention spans, social attachments, and partisan affiliations that mitigate the effects of even the most finely tailored advertising. Millions, meanwhile, refuse to engage in the process, a massive silent minority that campaigns only spend significant resources on if they have them. There must always be political desire that exists prior to any of these targeted communications practices, or else supporters and voters will tune them out like much else that is peripheral to their core concerns.

In the end, as another presidential general election takes shape, we see continuities in electoral politics in the face of considerable technological change.

Daniel Kreiss is Assistant Professor in the School of Journalism and Mass Communication at the University of North Carolina at Chapel Hill. Kreiss’s research explores the impact of technological change on the public sphere and political practice. In Taking Our Country Back: The Crafting of Networked Politics from Howard Dean to Barack Obama (Oxford University Press, 2012), Kreiss presents the history of new media and Democratic Party political campaigning over the last decade. Kreiss is an affiliated fellow of the Information Society Project at Yale Law School and received a Ph.D. in Communication from Stanford University. Kreiss’s work has appeared in New Media and Society, Critical Studies in Media Communication, The Journal of Information Technology and Politics, and The International Journal of Communication, in addition to other academic journals. You can find out more about Kreiss’s research at http://danielkreiss.com or follow him on Twitter at @kreissdaniel

Subscribe to the OUPblog via email or RSS.
Subscribe to only law and politics articles on the OUPblog via email or RSS.
View more about this book on the

Add a Comment

By Professor Ian Walden

Over the past two years there has been much furore over journalists accessing the voicemail of celebrities and other newsworthy people, particularly the scandal involving Milly Dowler. As a result of the subsequent police investigation, ‘Operation Weeting’, some 24 people have since been arrested and the first charges were brought by the Crown Prosecution Service in July 2012 against eight people, including Rebekah Brooks and Andy Coulson. The leading charge was one of conspiracy “to intercept communications in the course of their transmission, without lawful authority.” But what does ‘phone hacking’ mean and has the CPS got it right?

The charge, under section 1 of the Criminal Law Act 1977, relates to an offence under the ominously worded Regulation of Investigatory Powers Act 2000 (‘RIPA’), section 1(1). The RIPA is primarily concerned with the powers of law enforcement agencies to investigate criminality by listening into phone calls and other types of covert surveillance. The Act also criminalises the interception of communication by others, including journalists.

When drafting the 2000 Act, one of the objectives was to update the law of interception to reflect developments in modern telecommunication systems and services, especially email. One element of that reform was to recognise that telecommunication systems sometimes store messages on behalf of the intended recipient, to enable them to collect the message at their convenience. In such circumstances, according to section 2(7) of the RIPA, the communications shall be considered still ‘in the course of transmission’. One key issue to be decided in the forthcoming ‘phone hacking’ cases is therefore whether listening to somebody’s voicemail message falls within this exception.

So why does uncertainty arise? The issue for the court to decide is whether a distinction should be made between accessing voicemail messages that have been listened to by the intended recipient and those that have yet to be heard. In the former case, it can be argued, the communication is at an end and the voicemail service is simply being used as a storage medium. As such, no act of ‘interception’ has taken place.

Answering this seemingly simple question of interpretation is made more complex as a result of an apparent change of position on the part of the CPS. In November 2009, Keir Starmer QC, Director of Public Prosecutions, gave evidence before the Culture, Media and Sports Committee about the meaning of section 2(7). He argued, on the basis of the observations of Lord Woolf CJ in R (on the application of NTL) v Ipswich Crown Court [2002], that the provision should be interpreted narrowly, such that a message was only ‘in the course of transmission’ until it had been collected by the intended recipient. This statement led to a very public disagreement between Keir Starmer and John Yates, the then Acting Deputy Commissioner of the Metropolitan police, who argued for a wide interpretation of section 2(7). By July 2011, however, the CPS had committed a volte-face and decided to “proceed on the assumption that a court might adopt a wide interpretation.”

As a consequence of this legal uncertainty, there would appear to be a very real chance that the coming prosecutions may fail. As well as the considerable waste of police resource that would result, and the adverse impact on public confidence, this reliance on the crime of ‘interception’ seems unnecessary, as suggested by the moniker ‘phone hacking’. An alternative charge would seem to be available under section 1 of the Computer Misuse Act 1990, for ‘unauthorised access to computer material’. This was the original ‘hacking’ statute, and the offence carries the same maximum tariff as that for unlawful interception, i.e. two years imprisonment. There can be no question that a voicemail service is held on a ‘computer’, while it would seem relatively easy to show that the perpetrator, which can include both the private investigator and the requesting journalist, knew that such access was unauthorised.

The rationale for pursuing journalists for ‘intercepting’ rather than ‘hacking’ phones is not immediately clear, but the outcome of the forthcoming cases may simply represent another sorry stage in the long running saga of newspaper phone hacking.

Ian Walden is Professor of Information and Communications Law at the Centre for Commercial Law Studies, Queen Mary, University of London. His publications include Computer Crimes and Digital Investigations (2007), Media Law and Practice (2009) and Telecommunications Law and Regulation (4^th ed., 2012). Ian is a solicitor and Of Counsel to Baker & McKenzie.

Subscribe to the OUPblog via email or RSS.
Subscribe to only law and politics articles on the OUPblog via email or RSS.
View more about this book on the  

You may also like: Can Ignorance Ever Be An Excuse? 

Add a Comment

By Katherine Connor Martin

Back in January we published a short glossary of the jargon of the presidential primaries. Now that the campaign has begun in earnest, here is our brief guide to some of the most perplexing vocabulary of this year’s general election.

Nominating conventions

It may seem like the 2012 US presidential election has stretched on for eons, but it only officially begins with the major parties’ quadrennial nominating conventions, on August 27–30 (Republicans) and September 3–6 (Democrats). How can they be called nominating conventions if we already know who the nominees are? Before the 1970s these conventions were important events at which party leaders actually determined their nominees. In the aftermath of the tumultuous 1968 Democratic convention, however, the parties changed their nominating process so that presidential candidates are now effectively settled far in advance of the convention through a system of primaries andcaucuses, leaving the conventions themselves as largely ceremonial occasions.

Purple states, swing states, and battleground states

These three terms all refer to more or less the same thing: a state which is seen as a potential win for either of the two major parties; in the UK, the same idea is expressed by the use of marginal to describe constituencies at risk. The termbattleground state is oldest, and most transparent in origin: it is a state that the two sides are expected to actively fight over. Swing state refers to the idea that the state could swing in favor of either of the parties on election day; undecided voters are often called swing voters. Purple state is a colorful metaphorical extension of the terms red state and blue state, which are used to refer to a safe state for the Republicans or Democrats, respectively (given that purple is a mixture of red and blue). Since red is the traditional color of socialist and leftist parties, the association with the conservative Republicans may seem somewhat surprising. In fact, it is a very recent development, growing out of the arbitrary color scheme on network maps during the fiercely contested 2000 election between George W. Bush and Al Gore.

Electoral vote

What really matters on election day isn’t the popular vote, but the electoral vote. The US Constitution stipulates that the president be chosen by a body, theelectoral college, consisting of electors representing each state (who are bound by the results of their state election). The total number of electors is 538, with each state having as many electors as it does senators and representatives in Congress (plus 3 for the District of Columbia).  California has the largest allotment, 55. With the exception of Maine and Nebraska, all of the states give their electoral votes to the winner of the popular vote in their state on a winner-takes-all basis, and whichever candidate wins the majority of electoral votes (270) wins the election. This means it is technically possible to win the popular vote but lose the election; in fact, this has happened three times, most recently in the 2000 election when Al Gore won the popular vote, but George W. Bush was elected president.

Veepstakes

The choice of a party’s candidate for vice president is completely in the hands of the presidential nominee, making it one of the big surprises of each campaign cycle and a topic of endless media speculation. The perceived jockeying for position among likely VP picks has come to be known colloquially as theveepstakes. The 2012 veepstakes are, of course, already over, with Joe Biden and Paul Ryan the victors.

Super PAC

If there is a single word that most characterizes the 2012 presidential election, it is probably this one. A super PAC is a type of independent political action committee (PAC for short), which is allowed to raise unlimited sums of money from corporations, unions, and individuals but is not permitted to coordinate directly with candidates. Such political action committees rose to prominence in the wake of the 2010 Supreme Court ruling in Citizens United v. Federal Election Commission and related lower-court decisions, which lifted restrictions on independent political spending by corporations and unions. Advertising funded by these super PACs is a new feature of this year’s campaign.

501(c)(4)

It isn’t often that an obscure provision of the tax code enters the general lexicon, but discussions of Super PACS often involve references to 501(c)(4)s. These organizations, named by the section of the tax code defining them, are nonprofit advocacy groups which are permitted to participate in political campaigns. 501(c)(4) organizations are not required to disclose their donors. This, combined with the new Super PACs, opens the door to the possibility of political contributions which are not only unlimited but also undisclosed: if a Super PAC receives donations through a 501(c)(4), then the original donor of the funds may remain anonymous.

The horse race

As we’ve discussed above, what really matters in a US presidential election is the outcome of the electoral vote on November 6. But that doesn’t stop commentators and journalists from obsessing about the day-to-day fluctuations in national polls; this is known colloquially as focusing on the horse race.

The online magazine Slate has embraced the metaphor and actually produced an animated chart of poll results in which the candidates are represented as racehorses.

This article originally appeared on the OxfordWords blog.

Katherine Connor Martin is a lexicographer in OUP’s New York office.

Oxford Dictionaries Online is a free site offering a comprehensive current English dictionary, grammar guidance, puzzles and games, and a language blog; as well as up-to-date bilingual dictionaries in French, German, Italian, and Spanish. The premium site, Oxford Dictionaries Pro, features smart-linked dictionaries and thesauruses, audio pronunciations, example sentences, advanced search functionality, and specialist language resources for writers and editors.

Subscribe to the OUPblog via email or RSS.
Subscribe to only language, lexicography, word, etymology, and dictionary articles on the OUPblog via email or RSS.

Add a Comment