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CNN National Security Analyst Peter Bergen visited the Carnegie Council in New York City late last year to discuss Talibanistan, a collection he recently edited for Oxford University Press. Bergen, who produced the first television interview with Osama bin Laden in 1997, discussed the positive changes in Afghanistan over the past ten years: “Afghans have a sense that what is happening now is better than a lot of things they’ve lived through…”

Bergen was joined at the event by Anand Gopal, who wrote the first chapter in Talibanistan. Gopal recounts the story of Hajji Burget Khan, a leader in Kandahar who encouraged his fellow Afghans to support the Americans after the fall of the Taliban. But after US forces received bad intelligence, perceiving Hajji Burget Khan as a threat, he was killed in May 2002, which had a disastrous effect in the area, leading many to join the insurgency.

Peter Bergen on Afghanistan:

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Anand Gopal on the tragic mistake made by the American military:

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Peter Bergen is the director of the National Securities Studies Program at the New America Foundation, and is National Security Analyst at CNN. He is the author of Manhunt, The Longest War and The Osama Bin Laden I Know. Anand Gopal is a fellow at the New America Foundation and a journalist who has reported for the Wall Street Journal, the Christian Science Monitor, and other outlets on Afghanistan. Talibanistan: Negotiating the Borders Between Terror, Politics, and Religion was edited by Peter Bergen and Katherine Tiedemann and includes contributions from Anand Gopal.

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The post Have conditions improved in Afghanistan since 2001? appeared first on OUPblog.

By Ulrich Krotz and Joachim Schild

Ten years ago, at the Elysée Treaty’s 40th anniversary, Alain Juppé characterized France and Germany as the “privileged guardians of the European cohesion.” As the European Union’s key countries celebrated the 50th anniversary of their bilateral Treaty, Europe traverses a whole set of crises making the Franco-German “entente élémentaire” (Willy Brandt) appear as ever more important for providing or preserving European crisis management, decision-making, and, in whatever exact form: cohesion.

The endurance and the adaptability of the bilateral Franco-German connection—in spite of frequently dramatic domestic political changes (say changes of governments, parties in power, key personnel, economic rises, social upheavals, among others), regional European transformations (including widening and deepening European integration, the fall of the Iron Curtain, German unification), and wider international rupture or dynamism (such as the collapse of the Soviet Union, the end of the Cold War, or burgeoning globalization)—is a remarkable feature of European politics of the past half-century. Different combinations of a variety of factors have nurtured both resilience and adaptability of this bilateral link over time, political domains, and specific issues:

• complementary (more often than identical) strategic and economic interests;
• an extraordinarily tight fabric of bilateral institutions and norms to lubricate intergovernmental cooperation;
• parapublic and transnational interconnections between the two countries civil societies to undergird public intergovernmental links;
• the basic strategic choice on both sides generally to handle bilateral differences with delicacy, circumspection, and patience to arrive at compromises in bilateral and European matters whenever possible;
• and, finally, what Stanley Hoffmann once called an “equilibrium of disequilibria”: an overall by and large balanced bilateral relationship that enabled France and Germany to exercise joint European leadership on a footing of relative equality.

In 1963, the Elysée Treaty crowned the period of Franco-German friendship following World War II. At the same time, the Treaty offered a frame for an emergent and lasting “special” bilateral relationship between France and Germany, and inserted the Franco-German connection at the very core of the evolving institutions and decision-making processes of the European Union and its various predecessors.

The signing of the treaty on 22nd January 1963. In the picture (sat at the table, left to right): Dr. Gerhard Schröder (Minister of Foreign Affairs), Chancellor Konrad Adenauer, President Charles de Gaulle, Prime Minister Georges Pompidou, and Maurice Couve de Murville (French Foreign Minister). Source: This image was provided to Wikimedia Commons by the German Federal Archive (Deutsches Bundesarchiv) as part of a cooperation project.

And very much in the spirit of its godfathers and signatories Charles de Gaulle and Konrad Adenauer, the Elysée Treaty helped to base this novel sort of Franco-German relationship not only on an unusual set of bilateral intergovernmental institutionalization, but also on linkages and interchange among the French and Germans beyond and below the intergovernmental level. Most notably, the past 50 years have seen the emergence and flourishing of a massive set of publicly funded or organizationally supported “parapublic” institutions and institutionalization, such as the Franco-German Youth Office (with some 8 million participants in exchange programs since its foundation); some 2200 “twinnings” (jumelages, Partnerschaften) between French and German towns or regional entities; connections between high schools and universities; and, later, the creation of the Franco-German TV channel ARTE, and the framework of the Franco-German University.

To be sure, the Franco-German connection of the past five decades has experienced numerous disagreements, crises, or even phases of protracted tensions. In retrospect, the Gaullist period, with fundamental and seemingly insurmountable divergence in French and German strategic orientations, might appear as the most trying. And yet, neither this phase, nor various enduring differences in political or economic inclinations, nor a motley crew of disagreements, have either broken the bilateral connection or led it to degenerate into marginal relevance.

At the celebrations of the Elysée Treaty’s 50th anniversary, and the beginning of what France and Germany have baptized “the Franco-German year,” two developments threaten the continued endurance and political relevance of this bilateral relationship in Europe: on the one hand, the seemingly deep disparities across major policy fields during this period of severe crises; on the other, an apparently increasing gap in economic performance and competitiveness.

As for the former, most visibly perhaps, France and Germany have so far not succeeded in developing bilateral compromises so as to decisively help manage or overcome the Eurozone crisis. Or, for that matter, even to define a coherent approach in dealing with this crisis and its possible implications for the future of European governance in the monetary realm or beyond. In the policy fields of foreign, security, and defense—equally of supreme importance—France’s and Germany’s disparate strategic cultures persist, and their visions of the EU’s role in international politics and security continue to diverge, most strikingly perhaps when it comes to the use of military force. Some of the key questions in these domains—how to position oneself and to act in an often dangerous and violent world in which the most comfortable and comforting answers do not always suffice—continue especially to plague German elites.

Plaque commemorating the restoration of relations between Germany and France, showing Adenauer and Charles de Gaulle. Photo by Adam Carr, public domain via Wikimedia Commons.

However, it is the seemingly ever worsening loss of economic performance and competitiveness on France’s side, the erosion of the domestic economic bases of France’s bilateral and European standing, and the growing bilateral asymmetry in power and influence between the two countries, that pose the greatest challenge for the future of the Franco-German connection and for the survival of the Eurozone. While it is hardly conceivable that the Franco-German relationship could be based on a France lastingly in the role of the junior partner, the European Union more than ever requires strong leadership in order to navigate through its arguably deepest set of crises since its emergence from the treaties of Paris and Rome. Neither German hegemony, nor frequently weakened or inchoate supranational European institutions, nor another bilateralism or minilateral grouping is available to act as a replacement for the joint Franco-German role at the core of Europe.

The ability of France to face the realities of decline, and the courage and political will of its leaders to comprehensively reform the social and economic model—no matter how painful or divisive domestically—are indispensable conditions for that the tremendous success story of the Franco-German connection in Europe to continue and blossom beyond the celebrations of the Elysée Treaty’s anniversary and the Franco-German year.

Ulrich Krotz and Joachim Schild are the authors of Shaping Europe: France, Germany, and Embedded Bilateralism from the Elysée Treaty to Twenty-First Century Politics. Ulrich Krotz is Professor at the European University Institute, where he holds the Chair in International Relations in the Political Science Department and the Robert Schuman Centre for Advanced Studies. Joachim Schild is Professor of Political Science at the University of Trier.

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In 2010, Aaron Swartz, a 26-year-old computer programmer and founder of Reddit, downloaded thousands of scholarly articles from the online journal archive JSTOR. He had legal access to the database through his research fellowship at Harvard University; he also, however, had a history of dramatic activism against pay-for-content online services, having previously downloaded and released roughly 100,000,000 documents from the PACER (Public Access to Court Electronic Records) database, which charges eight cents per page to access public files. Given his status as a prominent “hacktivist” and the sheer quantity of files involved, law enforcement agents concluded that Swartz planned to distribute the cache of articles and indicted him on multiple felony counts carrying a possible sentence of $1 million in fines and 35 years in prison.

Swartz was slated to go to trial this year but committed suicide in early January, prompting a public outcry against the prosecution in his case. Swartz was a prominent voice in the heated debate surrounding modern copyright law and public access and use (see his 2008 “Guerrilla Open Access Manifesto”). New York’s current issue contains a great feature from Wesley Yang discussing Swartz’s activism, his life, and the controversy in which he was embroiled.

In the ongoing debate over Swartz’s prosecution, we’ve pulled together a brief reading list on the issues surrounding American copyright in the digital age from OUP’s stable:

Copyright’s Paradox by Neil Weinstock Netanel

Netanel weighs current IP law against the basic right of freedom of speech. Like Swartz, he finds it unacceptably constricting.

The Oxford Introductions to U.S. Law: Intellectual Property by Dan Hunter

A concise overview of the current state and history of IP law in America from a prominent New York University IP expert.

Copyright and Mass Digitization by Maurizio Borghi and Stavroula Karapapa

Two UK scholars discuss “whether mass digitisation is consistent with existing copyright principles.”

How to Fix Copyright by William Patry

A Senior Copyright Counsel at Google takes a look at the changing economic realities of the globalizing, digitizing world and concludes that our government must “remake our copyright laws to fit our times.”

Democracy of Sound by Alex Sayf Cummings

An overview of music piracy stretching back to the advent of recorded sound. The RIAA made headlines throughout the last decade by litigating against users who shared music online, but musicians, record companies, songwriters, and fans were navigating this territory for nearly a century before the Internet became a factor.

Unfair to Genius: The Strange and Litigious Career of Ira B. Arnstein by Gary Rosen

The story of one early 20^th century musician who spent decades conducting high-profile lawsuits against the leading pop icons of the day. Though he never won a single case, Ira Arnstein managed to have a significant impact on the shape of music copyright through the decisions in his numerous cases.

Without Copyrights: Piracy, Publishing, and the Public Domain by Robert Spoo

Spoo homes in on the contested publication of Ulysses to reveal the impact on copyright of literary modernism (and vice versa). Characters such as Ezra Pound, the infamous publisher Samuel Roth, and of course James Joyce flesh out a revealing story about artists grappling with free speech and authorship.

Oxford University Press is committed to developing outstanding resources to support students, scholars, and practitioners in all areas of the law. Our practitioner programme continues to grow, with key texts in commercial law, arbitration and private international law, plus the innovative new ebook version of Blackstone’s Criminal Practice. We are also delighted to announce the new edition of the Max Planck Encyclopedia of Public International Law, one of the most trusted reference resources in international law. In addition to the books you can find on this page, OUP publishes a wide range of law journals and online products.

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By Elvin Lim

Obama’s speech last week was an attempt to be as partisan or liberal as possible, while sounding as reasonable as possible. “Why would that be a partisan issue, helping folks refinance?” the president asked as part of this strategy. The Republican Party continues to suffer an image problem of being out of the mainstream, and the president was trying to capitalize on this moment of vulnerability. There is broad support for preventing the budget “sequester,” on minimum wage legislation, and a path to citizenship for children of immigrants — the president knows it, and he is leveraging public support to try to secure compliance from errant members of Congress.

As he showed in his Second Inaugural Address, this is not a president willing to mince his words any more. To talk about climate change and the “overwhelming judgment of science” is to take a clear, uncompromising position. “If Congress won’t act soon to protect future generations,” he said, “I will.” Presidents at least since Theodore Roosevelt have painted themselves as active problem-solvers, as opposed to bickering members of Congress, in order to justify a muscular, even unilateral executive branch. Conservatives who are quicker to see this pattern in liberal presidents should remember the perils of presidential bravado in the next conservative administration; liberals who are enjoying their president pulling his weight should pause to consider if they can consistently stomach the same unilateralism in a different time for different purposes, when it is a conservative president who proclaims, “Now’s the time to get it done.”

Get it done. They deserve a vote. Send me a bill. But the Constitution doesn’t work like that. The televised address makes it look like the president is legislator-in-chief, but he is anything but that. He can only execute the law; but to make the law he wants to execute, he needs Congress. So it may be a stroke of luck that a day after Obama’s speech, the news cycle is still consumed with the Christopher Dorner story, suggesting that Americans are tired of politics and political news after the previous year of campaign mud-slinging. Obama’s supporters want him to get on the permanent campaign, but some forget that doing well on the speech circuit could well generate congressional resentment and mobilize the “party of ‘no’” against him. There is a time for splashy, public campaigns; but look out for silent strokes of executive action in the days to come. “Decision, activity, secrecy, and despatch” are and remain the hallmarks of the executive Publius defended in Federalist 70. Obama has already signaled unabashedly that he will make the tough decisions. He appears to be doing so very publicly, but there is a secret side to transformative agendas. When the going gets tough and Congress doesn’t get going, expect Obama to be traversing his agenda with much despatch. His State of the Union address this year constitutes full disclosure, if we care to parse it carefully.

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.

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The post Obama’s State of the Union Address appeared first on OUPblog.

By Alfred Rolington

Cyber attacks on Iran have been well publicised in the press and on Western television. General William Shelton, a top American cyber general, has now turned these attacks around saying that these events are giving Iran a strategic and tactical cyber advantage creating a very serious “force to be reckoned with.”

Since 2010, Iran’s infrastructure has been attacked hundreds of times by cyber viruses. To date the most documented and best known cyber attacks have been aimed at Iran and are known as cyber worms called Stuxnet. These electronic worms were used to attack Iranian nuclear power plants and connected systems. General Shelton, who heads up Air Force Space Command and Air Force cyber operations, gave a briefing to reporters in January 2013, where he said that the 2010 Stuxnet virus attack on Iran’s Natanz uranium processing plant had generated considered responses from Iran that have led to improved offensive and defensive cyber-capabilities.

In December 2012, the Stuxnet virus returned and hit computer and energy operations and companies in the southern Hormozgan region. Shelton claimed that Iran’s improved cyber defense capability had helped Iran protect it against subsequent attacks on oil terminals and other manufacturing plants. This new capability, he believed, will subsequently be used by Iran against its enemies in the near future. “They are going to be a force to be reckoned with,” said General Shelton, “with the potential capabilities that they will develop over the years.” At present he stated that America had over six thousand cyber specialists employed to monitor, analyse and counter cyber attacks, and he was intending to employ another thousand specialists over the next twelve months to improve America’s effectiveness in this vital area.

Moreover, assassinations and assassination attempts in conjunction with cyber attacks are thought to be part of an integrated plan of attacks on Iran’s nuclear research and manufacturing capabilities. A year ago on 11 January 2012, Ahmadi Roshan, a 32-year-old Iranian scientist, and his driver were both killed when a motorcyclist attached a bomb to their car as they were driving. So far these attacks, which seem to form part of the broader cyber-related strategy aimed at Iran’s nuclear program, have successfully killed five Iranian nuclear scientists in the last two years according to FARS, a Tehran news agency. However, in January 2013, the Iranian Intelligence Minister Heydar Moslehi claimed that his organisation had stopped a number of attempts to kill nuclear scientists so it is uncertain which reports are accurate.

These attacks on Iran’s electronic systems represent only a very small amount of the current cyber attack and threat capability. Increasingly, all governments and corporations must respond to the cyber reality. With an interconnected world, cyber attacks on infrastructure have become frequent and damaging. Cyber crime is costing businesses billions of pounds although they tend to keep quiet about the attacks. (The BBC reported that UK cyber crime costs £27bn a year.) Efforts to get a grip on the problem had been hampered by firms who don’t want to admit they had been the victims of attacks for fear of “reputational damage”. Baroness Neville-Jones, Prime Minister David Cameron, and Foreign Secretary William Hague met the bosses of some of Britain’s biggest businesses, including Barclays, HSBC, Tesco and BA, to urge them to take the problem more seriously.

In September 2012, a hacker called vorVzakone posted a message on a Russian online forum saying that a malevolent Trojan, called Project Blitzkrieg, was capable of attacking the American financial industry, that it had already critically affected up to five hundred American targets, and that it had stolen over five million dollars. “This attack combines both a technical, innovative backend with the tactics of a successful, organized cybercrime movement,” a McAfee report explained, adding that the next target would probably be investment banks.

Hackers, apparently working independently as criminal gangs, have grown in their specialization faster than most police and government intelligence organisations would have believed possible. Yet cyber hackers working for governments have targeted everything from computer systems to power plants from the US to Iran, Europe to China, Australia and beyond. These civil servant hackers are often employed by governments to help fulfill a strategy, to change information and publicity, or to gain information and bring systems down.

One example comes from Ray Boisvert, who recently retired from the post of Assistant Director of Intelligence for the Canadian Security Intelligence Service. He believes the current capabilities of most governments is not enough to counter the current cyber threats. He said that cyber threats were fundamentally undermining Canada’s “future prosperity as a nation.” He stated there is a lack of response on three levels. First from government and corporate policy-makers who do not, in his opinion, understand the technical complexities of digital telecommunications security. Second the government has not invested enough to protect Canada’s communications and electricity systems from cyber attacks. Third, he thought there was an inherent corporate shortsightedness regarding protecting Canada’s communications infrastructure.

The cyber issue is growing and will become a rising threat to governments and corporations. It may require a serious attack such as a massive electricity system shut down before a full government response is played out.

Alfred Rolington is the author of Strategic Intelligence for the 21st Century: The Mosaic Method, an industry insider’s assessment of current intelligence methods and offers a new strategic model, directed toward the police, military, and intelligence agencies. He was formerly CEO of Jane’s Information Group, responsible for such publications as Jane’s Defense Review and Jane’s Police Review, as well as CEO for Oxford Analytica. He has over thirty years’ experience of analytical publishing and media companies, producing information and intelligence for commerce, law enforcement, the, military and government. He has written about and given lectures on intelligence and strategic planning to Cambridge, Oxford, and Harvard Universities, and to organisations such as Thomson Reuters, the CIA, SIS (MI6), NATO Headquarters, and GCHQ.

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Image credits: Information Systems Technician 2nd Class Ryan Allshouse uses the intrusion detection system to monitor unclassified network activity from the automated data processing workspace. As a work of the U.S. federal government, the image is in the public domain via Wikimedia Commons;  Maps and charts are scanned from “Atlas of the Middle East”, published in January 1993 by the U.S. Central Intelligence Agency. [Public domain], via Wikimedia Commons

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How can we outline the discussion on the law and practice of international arbitration? What is the legal process for the drafting of the arbitration agreements or the enforcement of arbitral awards? Long-time international arbitrators Constantine Partasides, Alan Redfern, and Martin Hunters — co-authors of Redfern and Hunter on International Arbitration: Fifth Edition with Nigel Blackaby — sat down with the OUPblog to discuss the latest developments in their field. Watch the following videos to learn more about current views on international arbitration and what changes they expect to see in the future.

How did the idea of writing a book come about?

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What challenges are arbitrators facing now?

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How do you view the future of international commercial arbitration? 

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Nigel Blackaby, Constantine Partasides, Alan Redfern, and Martin Hunter are the authors of Redfern and Hunter on International Arbitration: Fifth Edition. Nigel Blackaby is one of the partners of the international arbitration group at Freshfields Bruckhaus Deringer in Washington, DC. Constantine Partasides is a one of the partners of the international arbitration group at Freshfields Bruckhaus Deringer in London. Alan Redfern is the barrister and international arbitrator at One Essex Court Chambers in London. Martin Hunter is currently a barrister and international arbitrator at One Essex Court Chambers.

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The post What does the future hold for international arbitration? appeared first on OUPblog.

By Andrew T. Guzman

A few days ago, the President of the United States used the State of the Union address to call for action on climate change. The easy way to do so would have been to call on Congress to take action. Had President Obama framed his remarks in this way, he would have given a nod to those concerned about climate change, but nothing would happen because there is virtually no chance of Congressional action. What he actually did, however, was to put some of his own political capital on the line by promising executive action if Congress fails to address the issue. The President, assuming he meant what he said, has apparently accepted the need for a strong policy response to this threat.

Not everybody agrees. There has long been a political debate on the subject of climate change, even though the scientific debate has been settled for years. In recent months, perhaps in response to Hurricane Sandy, the national drought of 2012, and the fact that 2012 was the hottest year in the history of the United States, there seems to have been a shift in the political winds.

Oblique view of Grinnell Glacier taken from the summit of Mount Gould, Glacier National Park in 1938. The glacier has since largely receded. In addition to glacier melt, rising temperatures will lead to unprecedented pressures on our agricultural systems and social infrastructure, writes Andrew T. Guzman. Image by T.J. Hileman, courtesy of Glacier National Park Archives.

In 1969, Elizabeth Kubler-Ross described the “five stages” of acceptance:  denial, anger, bargaining, depression, and acceptance. For many years, climate change discussions seemed to be about getting our politics past the “denial” stage. Over time, however, scientific inquiry made it obvious that climate change is happening and that it is the result of human activity. With more than 97% of climate scientists and every major scientific body of relevance in the United States in agreement that the threat is real, not to mention a similar consensus internationally, it became untenable to simply refuse to accept the reality of climate change.

The next stage was anger. Unable to stand on unvarnished denials, skeptics lashed out, alleging conspiracies and secret plots to propagate the myth of climate change. In 2003, Senator Inhofe from Oklahoma said, “Could it be that man-made global warming is the greatest hoax ever perpetrated on the American people? It sure sounds like it.” In 2009 we had “climategate.” More than a thousand private emails between climate scientists were stolen and used in an attempt (later debunked) to show a conspiracy to fool the world.

Now, from the right, come signs of a move to bargaining. On 13 February, Senator Marco Rubio reacted to the President’s call for action on climate change, but he did not do so by denying the phenomenon itself or accusing the President of having being duped by a grand hoax.  He stated instead, “The government can’t change the weather. There are other countries that are polluting in the atmosphere much greater than we are at this point. They are not going to stop.” Earlier this month he made even more promising statements: “There has to be a cost-benefit analysis [applied] to every one of these principles.” This is not anger or denial. This is bargaining. As long as others are not doing enough, he suggests, we get to ignore the problem.

It is, apparently, no longer credible for a presidential hopeful like Senator Rubio to deny the very existence of the problem. His response, instead, invites a discussion about what can be done. What if we could get the key players: Europe, China, India, the United States, and Russia to the table and find a way for all of them to lower their emissions? If the voices of restraint are concerned that our efforts will not be fruitful, we can talk about what kinds of actions can improve the climate.

To be fair, Senator Rubio has not totally abandoned denials. While engaging in what I have called “bargaining” above, he also threw in, almost in passing, “I know people said there’s a significant scientific consensus on that issue, but I’ve actually seen reasonable debate on that principle.” In December he declared himself “not qualified” to opine on whether climate change is real. These are denials, but they are issued without any passion; his heart is not in it. They seem more like pro forma statements, perhaps to satisfy those who have not yet made the step from denial and anger to bargaining.

If leaders on the right have reached the bargaining stage, the next stage is depression. What will that look like? One possibility is a full embrace of the science of climate change coupled with a fatalistic refusal to act. “It is too late, the planet is already cooked and nothing we can do will matter.”  When you start hearing these statements from those who oppose action, take heart; we will be close to where we need to get politically. Though it will be tempting to point out that past inaction was caused by the earlier stages of denial, anger, and bargaining, nothing will be gained by such recriminations. The path forward requires continuing to make the case not only for the existence of climate change, but also for strategies to combat it.

The final stage, of course, is acceptance. At that point, the country will be prepared to do something serious about climate change. At that point we can have a serious national (and international) conversation about how to respond. Climate change will affect us all, and we need to get to acceptance as soon as possible. In short, climate change will tear at the very fabric of our society. It will compromise our food production and distribution, our water supply, our transportation systems, our health care systems, and much more. The longer we wait to act, the more difficult it will be to do so.  All of this means that movement away from simple denial to something closer to acceptance is encouraging.  The sooner we get there, the better.

Andrew T. Guzman is Professor of Law and Associate Dean for International and Executive Education at the University of California, Berkeley. His books include Overheated: The Human Cost of Climate Change and How International Law Works, among others.

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The post The five stages of climate change acceptance appeared first on OUPblog.

President Obama is expected to announce at his State of the Union address tonight that 34,000 US troops — half the number currently stationed there — will return from Afghanistan next year. The war in Afghanistan has now continued for over ten years, since US forces entered the country after September 11th. The country, however, is still far from stable, and as Alex Strick van Linschoten, co-author of An Enemy We Created: The Myth of the Taliban-Al Qaeda Merger in Afghanistan, explains, US involvement has become a crutch for a country still trying to find order. “It is a reality that the only thing holding the country together at the moment is essentially the presence of the foreigners, yet at the same time it’s one of the reasons for the continuing instabilities,” Strick van Linschoten says.

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Alex Strick van Linschoten has lived in Afghanistan since 2006. With Felix Kuehn, he is the co-author of An Enemy We Created: The Myth of the Taliban-Al Qaeda Merger in Afghanistan, co-editor of My Life with the Taliban, and The Poetry of the Taliban. He is currently working on a PhD at the War Studies Department of King’s College London. Follow him on Twitter @alexstrick.

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The post Will Obama address Afghanistan in his State of the Union address tonight? appeared first on OUPblog.

By Matthew Flinders

One of the critical skills of any student of politics — professors, journalists, public servants, writers, politicians and interested members of the public included — is to somehow look beyond or beneath the bigger headlines and instead focus on those peripheral stories that may in fact tell us far more about the changing nature of society. It was in exactly this sense that I was drawn recently not to the ‘War in Whitehall’ or Cameron’s speech on the UK’s future relationship with the European Union but to a story about the launch of a ‘smart fork’. The ‘smart’ feature being the existence of a shrill alarm which would inform its user if they were eating too quickly. This, I have quickly realized, is just the latest in a long stream of innovations that seek to nudge individuals towards making better choices about the way they lead their lives (eat less, save more, drive more slowly, etc.). And so it turns out that the ‘smart fork’ is just one of a great series of new innovations that seeks to deliver a form of liberal-paternalism by somehow reconciling individual freedom and choice with an emphasis on collective responsibility and well-being. My favorite amongst these innovations was the ‘smart trolley’: a supermarket trolley with sensors that beeped (and flashed) at the errant shopper who succumbed to the temptation to place a high-fat product in their trolley.

There was something about the idea of a smart fork, however, that I found particularly disturbing (or should I say ‘hard to swallow’, ‘stuck in my gullet’, ‘left a bad taste in my mouth’, etc.?). My mind jumped back to Michael Sandel’s argument that ‘the problem with our politics is not too much moral argument but too little…Our politics is over-heated because it is mostly vacant’. My concern with the launch of the ‘smart fork’ is that it arguably reflects an unwillingness to deal with the moral arguments that underlie the obesity endemic in large parts of the developed world. If Sandel’s concern about the imposition of market values is that it could ‘crowd out of virtue’ then my own concern is that behavioral economics revolution risks ‘crowding out thought’ in the sense that new technologies may provide little more than an excuse or displacement activity for not accepting responsibility for one’s actions. In the twenty-first century do we really need a computerized fork or shopping trolley in order to tell us to eat less food more slowly, or to buy less high-fat food and exercise more?

The smart fork therefore forms little more than a metaphor for a society that appears to have lost a sense of self-control and personal responsibility. This, in turn, pushes us back to broader arguments concerning the emptiness of modern political debate and to the relative value of the public and private sectors. As Alain de Botton argued in Citizen Ethics in a Time of Crisis, we could ask whether individual freedom has really served us so well as the leitmotif of modern life. ‘In the chaos of the liberal free market we tend to lack not so much freedom [but] the chance to use it well’ de Botton writes; ‘We lack guidance, self-understanding, self-control….being left alone to ruin our lives as we please is not a liberty worth revering’. Slavoj Žižek paints a similar argument across a broader canvas in his provocative work Living in the End Times . ‘The people wanted to have their cake and eat it’, Žižek argues; ‘they wanted capitalist democratic freedom and material abundance but without paying the full price’. He uses an advert on American TV for a chocolate laxative—‘Do you have constipation? Eat more of this chocolate’—to mock the modern public’s constant demand for results without ever having to suffer unpleasant side effects.

Although hidden far beneath the front-page headlines, the story of the launch of the smart fork (in Las Vegas — need I say more) highlights the existence of an underlying problem in the sense that most politicians appear either unwilling or unable (possibly both) to tackle the issue head-on. Between 1980 and 2000 obesity rates doubled in the United States to the extent that one in three adults (around sixty million people) are now clinically obese, with levels growing particularly amongst children and adolescents. In this context it may well be that individuals require — even want — not a nudge but a shove or a push towards a healthier lifestyle? If this is true, it is possible that we need to revisit certain baseline assumptions about the market and the state and not simply define the role of the latter as an inherently illegitimate, intrusive, and undesirable one. To make this point is not to trump the heavy hand of the state or to seek to promote some modern version of the enlightened dictator, but it is to inject a little balance into the debate about the individual and society. Is it possible that we ‘hate’ politics simply because, unlike those unfeasibly self-contained, sane, and reasonable grown-ups that we are assumed to be by liberal politicians, most of us still behave like disturbed children (or political infants) who simply don’t want to take responsibility for our actions or how they impact on the world around us? Or — to put the same point slightly differently — if the best response we have to the obesity crisis is an electric fork then in the long term we’re all forked.

Matthew Flinders is Professor of Parliamentary Government & Governance at the University of Sheffield. He was awarded the Political Communicator of the Year Award in 2012. Author of Defending Politics (2012), he is also co-editor of The Oxford Handbook of British Politics and author of Multi-Level Governance and Democratic Drift. Read more of Matthew Flinders’s blog posts and find him on Twitter @PoliticalSpike.

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Image credit: HAPIfork app via HAPILABS.

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In the last fifty years, public international law has undergone a radical transformation, moving from a discipline which ‘the great majority of lawyers of all states [knew] little or nothing’ about (Oppenheim) to the fastest growing legal discipline. To celebrate the recent update to the Max Planck Encyclopedia of International Law, we present this quiz. Can you separate the Treaty of Tordesillas from the Treaty of Trianon? Do you know how to go about buying a piece of the moon? Happy quizzing — no adjournment required.

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. The articles in the quiz above are available to read for free for a limited time.

Oxford University Press is a leading publisher in Public International Law, including the Max Planck Encyclopedia of Public International Law, latest titles from thought leaders in the field, and a wide range of law journals and online products. We publish original works across key areas of study, from humanitarian to international economic to environmental law, developing outstanding resources to support students, scholars, and practitioners worldwide.

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By Professor John Sorabji (Hon)

Collective action reform in England and Wales was first seriously mooted twenty five years ago. From the perspective of proponents of the opt-out form of collective action (i.e., a form of collective proceedings where all the potential claimants are automatically represented in the proceedings unless they explicitly choose not to be), nothing of substance has been achieved since then. The closest advocates for reform got were the class action provisions in the 2009 Financial Services Bill, which were dropped at the last minute to help secure the Bill’s enactment prior to the 2010 general election.

Since 2010 prospects for reform have been slight. A pre-general election consultation by the Department for Business, Innovation and & Skills (BIS), which raised the issue of a consumer collective action, disappeared without trace. In this there was nothing to surprise the sceptic: collective action consultations have historically yielded nothing. In April 2012, to the surprise of many, BIS issued another consultation. This time its focus is reform of the follow-on opt-in form of collective action which can be used in claims brought under the Competition Act 1998

The present consultation once more raises issues which, given the 25 year history of abortive reform, have been debated to the nth degree, two of which do however need detailed consideration.

First, the consultation moves beyond the government’s previous position that if reform is to be implemented it should be consistent with the Civil Justice Council’s 2008 recommendations. In particular it proposes that an opt-out form of action be introduced; the CJC had rejected the introduction of an opt-out action in favour of one where the court determines on a case-by-case basis whether the action should be opt-in (i.e., where a claimant has take deliberate and express steps to be brought within the scope of the proceedings) or opt-out.

BIS’s proposal is predicated, amongst other things, on the grounds that the present Competition Act opt-in procedure is inadequate; inadequate because it has only ever been used once, in the JJB Football shirts case and then only because, it is claimed, a mere 130 individuals opted-in. The factual claim is contentious: opt-in figure was arguably 550, if not higher, with an additional 15,000 individuals claiming under the settlement reached in the proceedings. More substantively, the consultation does not appear to grapple with the question whether the lack of claimants opting-in is actually a sign that individuals are making a proper choice not to pursue an individually de minimus claim, and whether an opt-out system actually amounts in such circumstances to an improper fetter on an individual’s choice to resort to litigation to enforce their rights. It is a question that the CJC did not consider. If reform is to come, it might perhaps be better if it came after principled consideration of this issue.

Secondly, the consultation raises the question of what happens to damages awarded under an opt-out procedure which go unclaimed. Opt-out systems always result in some, if not the majority of, damages going unclaimed. Rather than being taken as a sign that the procedure does not provide access to justice, compensation for loss or the enforcement of private rights for those individuals whose rights were infringed, the unclaimed damages are viewed as something which can be distributed by the court for a purpose related to the substance of the claim (a cy-pres distribution). The consultation, for the first time, proposes that unclaimed damages should not be distributed this way but should rather be paid to the Access to Justice Foundation.

Critics might suggest that whatever the merits of a cy-pres distribution, at least it is intended to result in a benefit to those similarly situated to the individuals whose rights had been infringed. Requiring such funds to be paid to a charity, no matter how meritorious, which has nothing to do with the rights infringed, might be said to run contrary to the aim of enforcing rights and securing effective compensation for those harmed individuals. It might even be said, as it was in the United States in the context of a statutory provision which required unclaimed damages to be paid to the State, to ‘cripple the compensatory function for the private class’ (State of California v. Levi Strauss & Co., 715 P.2d 564, 575 (Cal. 1986)).

Hopefully BIS will consider these, and the other issues which its proposes raise, and in doing so ensure that reform, if it comes, is consistent with securing effective access to justice for those who genuinely wish to pursue their claims and see their rights enforced; a commitment to the rule of law requires no less. If it does not, its consultation will be yet another false dawn.

Prof John Sorabji (Hon) is Senior Fellow, Judicial Institute, University College, London, barrister and Legal Secretary to the Master of the Rolls. He is a contributor to Extraterritoriality and Collective Redress, edited by Duncan Fairgrieve and Eva Lein. Any views expressed in this article are those of the author and are neither intended to nor do they represent the views of any other individual or body.

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By Virginia Garrard-Burnett

After the judge’s ruling Monday in Guatemala City, the crowd outside erupted into cheers and set off fireworks. The unthinkable had happened: Judge Miguel Ángel Gálvez had cleared the way for retired General Efraín Ríos Montt, who between 1982 and 1983 had overseen the darkest years of that nation’s 36-year long armed conflict, would stand trial for genocide. In that conflict (1960-1996), more than 150,000 Guatemalans died, the majority at the hands of their own government, which used their lives to prosecute a ferocious counterinsurgency war against a group of Marxist guerrillas who had hoped to bring a Sandinista-style socialist regime to Guatemala. For many, General Ríos Montt represented the face of this war, because it was during his short terms as president between March 1982 and August 1983 (he both came to power and was expelled in military coup d’états), that the Guatemalan army undertook the most bloody operation of the war, a violent scorched-earth campaign that not only nearly eliminated the guerrillas military operation, but which also killed many thousands of civilians, the vast majority of them Maya “Indians.” Now, some thirty years later, Ríos Montt will be prosecuted along with his former chief of intelligence, Mauricio Rodriguez Sánchez, for genocide and crimes against humanity. Specifically, he will be charged with ordering the killings of more than 1,700 Maya Ixil people in a series of massacres that the Army conducted in the northern part of the country in 1982.

The axiom “justice delayed is justice denied” notwithstanding, the prosecution of fatally misguided leaders and despots such as Serbia’s Radovan Karadžić  or Hutu leader Beatrice Munyenyezi  is not unusual in the early 21^st century. Trials such as these are designed to serve the cause of justice, of course, but they are also instrumental in helping a traumatized society create a coherent narrative and build a collective historical memory around what happened in its recent past. What is unusual about the case against Ríos Montt is that almost no one foresaw the day when such a trial would ever take place in Guatemala. In large part, this stems from Guatemala’s long-standing culture of impunity, where few people, from common criminals all the way up to corrupt businessmen and military officers, are held accountable for their crimes; generally speaking, the rule of law there simply does not rule. Beyond that, Ríos Montt’s continued influence in the country—among other things, he established and headed a powerful political party, the Frente Republicano Guatemalteco in the 1989, and he run an unsuccessful campaign for president as recently as 2003—further mitigated against expectations for his prosecution. His daughter, Zury Ríos Montt (who is married to former US Congressman Jerry Weller) is a rising and powerful young politician; her support for her father is so absolute that she stormed out of the courtroom yesterday before the judge could finalize his pronouncement. But most of all, the prosecution of Ríos Montt seemed most unlikely because, in the strange paradox of power that sometimes comes with authoritarian regimes, there were, and still continue to be, some Guatemalans who continue to respect him, remembering his bloody rule as a time when one could walk the streets of the capital safely and when the “raging wolves” of communism were kept at bay.

Adding to the complexity of this case is that fact that, at the time he served as chief of state in the early 1980s, (although called “President,” he did not actually hold this title, having taken power in a coup), Ríos Montt was a newly born again Christian, a member of a neo-Pentecostal denomination called the Church of the Word (Verbo). Fresh from the rush of his conversion, Ríos Montt addressed the nation weekly during his term of office, offering what people called his “Sunday sermons,”—discourses in which he drifted freely from topics ranging from his desire to defeat the “subversion,” to advice on wholesome family living, to his particular vision of a “New Guatemala” where all peoples would live together as one (a jab at the unassimilated Maya), in compliant obedience to a benign government that served the general good. Ríos Montt’s dream of a New Guatemala was in many ways as elusive as quicksilver, and in his sermons, he made no mention of the carnage going on in the countryside. The sacrifice of the Maya people and other “subversives” was not at all too high a price to pay, in his estimation, for the New Guatemala.

But the elegance, even the peaceability of his language, along with his strong affiliation with the Church of the Word (his closes advisors were church leaders, not his fellow generals) in that moment made Ríos Montt the darling of the emergent leaders of the Christian Right in the United States who were coming of age during the presidency of Ronald Reagan. For them, as for the Reagan administration, Ríos Montt seemed to have emerged out of nowhere from the turmoil of the Central American crisis of the early 1980s as an anti-communist Christian soldier and ally. It seemed unthinkable to them that the same man who, with one hand, reached out to called for honesty and familial devotion from his people, would order the killing of his own people with his other. And so it seems to some Guatemalans even today. Yet the strong and irrefutable body of evidence that produced yesterday’s ruling tells a very different, and much more tragic story.

Virginia Garrard-Burnett is a Professor of History and Religious Studies at the University of Texas-Austin and the author of Terror in the Land of the Holy Spirit: Guatemala under General Efrain Rios Montt 1982-1983.

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By Michael Blair QC, George Walker, and Stuart Willey

Almost every day has brought a fresh story about investment markets, their strengths and weaknesses. Misreporting of data for calculation of LIBOR, money laundering with a whiff of Central American drugs trading, costly malfunctioning of programme trading mechanisms which brought the trading company to its knees, reputational damage inflicted by as yet unsubstantiated accusations of illicit financing in breach of international sanctions… the list goes on and on.

Toronto Financial District. Photo by Alessio Bragadini, 23 June 2009. Creative Commons License.

The list of problems, for firms, and in some cases for their customers as well, prompts some reflections about the role of investment markets in our society and about the relationship between markets and their regulation. Some years ago, in the latter part of the last century, it was fashionable for academics and practitioners alike to put their trust in the strength and reliability of market mechanisms. The experience in earlier decades of the hard discipline of the money markets no doubt added to this. For example the humiliation of the forced departure of the United Kingdom from the former European Monetary mechanism (EMU) in the 1980s reinforced the beliefs of many in the power of the markets as a way of finding and pricing out inefficiency and restoring a new equilibrium at a different point on the scale.

To the majority, therefore, the proper role of regulation at that time was essentially limited to cases of market failure. Most of the work in the public interest could be done by the markets themselves. They might, of course, need some help from the regulators to ensure proper disclosure, with a view to sufficient, and non-discriminatory, access by market users and commentators to market information. But if there was “sunlight” in the market, then that more or less guaranteed the “hygiene” of its mechanisms. From that concept came “light touch” as a means of describing a system of financial regulation that basically left it to well informed markets to function for themselves.

Not all agreed at the time with this general approach. There were honourable exceptions, whose only consolation since has been the (frequently best left unsaid) phrase “I told you so at the time”.

How things have changed since then! A rapid U-turn in public and political thinking has brought demands for sterner and more intrusive regulation. The insidiousness of human greed and of lack of foresight is now widely recognised and needs to be restrained. The market economists now accept that there is a real, and central, role for discipline, including both its punitive and its deterrent aspects as well as the benefits it brings in excluding the dangerous from the playing field altogether. The change has even led our politicians to embark on structural change to restore a previous splitting of retail regulation from the upper reaches of financial services. The case for this change has been based on a hope of better focus of the two new bodies on the two sectors, though the underlying motive appears more to be a desire to change something simply because it is thought to have failed.

Splitting in the public interest also seems likely to be required in the major banks as well. The “Vickers” reforms look set to require the banking industry to function in two separate ways, with required distance between the investment banking arms and the general consumer-based borrowing and lending functions.

Another consequence is that “enforcement” is once more central to the world of regulation, rather than seen as a stick kept, as far as was possible, in the cupboard for occasional use only in the most serious circumstances.

We have now arrived at a new post-crisis period of great challenge but also of potential opportunity. We seem to be set for a number of difficult coming years, during which the markets will be dominated and constrained by austerity, continuing uncertainty and risks of instability. But markets and economies tend to recover over time. We must hope that the politicians, central banks and regulatory authorities have learned all of the necessary lessons from the recent crises to prevent instability or, at least, better to manage and contain the risks of it.

Michael Blair QC, Professor George Walker, and Stuart Willey are the editors of the new edition of Financial Markets and Exchanges Law. Michael Blair QC is in independent practice at the Bar of England and Wales specialising in financial services. Previously General Counsel to the Board of the Financial Services Authority. Queen’s Counsel honoris causa 1996. George Walker is Professor in International Financial Law at School of Law, Queen Mary University of London and is a member of the Centre for Commercial Law Studies (CCLS). He is also a Barrister and Member of the Honourable Society of Inner Temple in London. Stuart Willey is Counsel and Head of the Regulatory Practice in the Banking & Capital Markets group of White & Case in London. Stuart specializes in financial regulation focusing on the securities markets, banking and insurance.

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By Candida Saunders

What is a false allegation of rape? At first, this might appear to be a daft question. Reflecting the general tendency to think of the truth or otherwise of allegations in reductive terms of being either true or false, the meaning of “false allegation” is commonly taken to be self-evident. A false allegation of rape is an allegation that is false; the rape alleged did not, in fact, occur. In the abstract, this seems a perfectly logical and sensible approach.

In practice, however, there is much more to making a formal rape complaint than the simple and solitary assertion, “I was raped”, or, where the identity of the accused is known, “I was raped by X”. Complainants’ statements comprise multiple assertions of fact detailing when an alleged incident happened, where it happened, how it happened, and at whose hands, as well as giving an account of the events and circumstances leading up to and following the incident. For criminal justice professionals, whose priorities are trial-focussed, the question of veracity extends to each and every statement of fact – the who, what, where, when, how and so forth – contained in a complainant’s account. As complainants may conceal or actively lie about any one or more of these facts, the messy reality is that some rape allegations may be more (or less) true (or false) than others. This raises a conceptual question: is an allegation “false” because it’s not genuine, or because it’s not true?

Of course, there’s a certain degree of overlap between these two approaches. Presumably, we would all agree that the alleged rape which is, in fact, a complete fabrication of something that never happened is a false allegation. But how would you describe the allegations of a complainant who, for example, reports being ambushed at midnight by a knife-wielding stranger, dragged into nearby bushes and raped, when CCTV footage, witness statements, and scientific evidence prove unequivocally that the complainant and accused had, in fact, spent the evening drinking together in various local bars and that sex took place at the accused’s home? Or the allegations of a rape complainant who maintains that she (or he) was stone-cold sober at the material time, when a toxicology report shows that, in fact, the complainant had consumed a significant amount of alcohol and a fair amount of cocaine, and witnesses state that she had done so voluntarily? Clearly, the fact that a complainant has lied about some detail or other in their statement(s) does not mean that there was, in fact, no rape. It does, however, mean that their allegations aren’t (entirely) true. Despite a genuine rape incident at the heart of the allegation, the complainant’s account contains assertions of fact that are demonstrably false. And the falsehoods in a complainant’s statement(s) have potentially catastrophic implications for a prosecution. If the complainant, almost invariably the prosecution’s chief witness in a rape trial, has a documented history of providing evidence which, although sworn on pain of prosecution to be true, is, in fact, false, then a prosecution is unlikely to proceed. There may well have been a rape but, in the absence of compelling prosecution evidence independent of the complainant, the chances of proving beyond reasonable doubt that there was are slim.

Regardless of one’s conceptual approach, then, referring to the alleged rape that didn’t happen as a “false allegation” is uncontroversial. The issue really is whether the rape that didn’t happen the way the complainant said it did might also be described as false. And that is an issue on which reasonable minds might – and, as I have recently argued, do – reasonably differ. “Well,” you may say, “so the ‘false allegation’ is a contestable concept. Big deal. So what?” Well, it is a big deal because nobody’s really discussing what “false allegations” are and yet people keep trying to count them! There’s a fairly extensive research literature and broader critical debate, spanning several decades, on the prevalence of false rape allegations. The prevailing academic orthodoxy insists that false allegations of rape are rare, or at least no more common than false allegations of other offences, with those claiming otherwise – usually criminal justice professionals with first-hand experience of investigating and prosecuting rape cases – quickly dismissed by the mainstream as misogynists and sceptics. But how one conceptualises and defines the “false allegation” has a direct, and often striking, effect on how many are observed. Despite repeated claims to the contrary, research findings are consistent only in their inconsistency. Estimated prevalence rates for false rape allegations range from the sublime to the ridiculous. So the contestable nature of the concept of the “false allegation” matters because divergent estimates may reflect methodological rather than attitudinal factors. Put simply, the various protagonists may not all be counting the same things.

Dr Candida Saunders is a Lecturer in Law at the University of Nottingham. Her article, The Truth, the Half-truth and Nothing like the Truth: Reconceptualizing False Allegations of Rape, appears in The British Journal of Criminology where you can read it in full and for free via the link above.

The British Journal of Criminology: An International Review of Crime and Society is one of the world’s top criminology journals. It publishes work of the highest quality from around the world and across all areas of criminology.

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By Andrew J. Polsky

The signs are clear. President Barack Obama has nominated two leading skeptics of American military intervention for the most important national security cabinet posts. Meeting with Afghan President Hamid Karzai, who would prefer a substantial American residual presence after the last American combat troops have departed in 2014, Obama has signaled that he wants a more rapid transition out of an active combat role (perhaps as soon as this spring, rather than during the summer). The president has also countered a push from his own military advisors to keep a sizable force in Afghanistan indefinitely by agreeing to consider the “zero option” of a complete withdrawal. We appear on the verge of a non-interventionist moment in American politics, when leaders and the general public alike shun major military actions.

Only a decade ago, George W. Bush stood before the graduating class at West Point to proclaim the dawn of a new era in American security policy. Neither deterrence nor containment, he declared, sufficed to deal with the threat posed by “shadowy terrorist networks with no nation or citizens to defend” or with “unbalanced dictators” possessing weapons of mass destruction. “[O]ur security will require all Americans to be forward looking and resolute, to be ready for preemptive action when necessary to defend our liberty and to defend our lives.” This new “Bush Doctrine” would soon be put into effect. In March 2003, the president ordered the US military to invade Iraq to remove one of those “unstable dictators,” Saddam Hussein.

This post-9/11 sense of assertiveness did not last. Long and costly wars in Iraq and Afghanistan discredited the leaders responsible and curbed any popular taste for military intervention on demand. Over the past two years, these reservations have become obvious as other situations arose that might have invited the use of troops just a few years earlier: Obama intervened in Libya but refused to send ground forces; the administration has rejected direct measures in the Syrian civil war such as no-fly zones; and the president refused to be stampeded into bombing Iranian nuclear facilities.

The reaction against frustrating wars follows a familiar historical pattern. In the aftermath of both the Korean War and the Vietnam War, Americans expressed a similar reluctance about military intervention. Soon after the 1953 truce that ended the Korean stalemate, the Eisenhower administration faced the prospect of intervention in Indochina, to forestall the collapse of the French position with the pending Viet Minh victory at Dien Bien Phu. As related by Fredrik Logevall in his excellent recent book, Embers of War, both Eisenhower and Secretary of State John Foster Dulles were fully prepared to deploy American troops. But they realized that in the backwash from Korea neither the American people nor Congress would countenance unilateral action. Congressional leaders indicated that allies, the British in particular, would need to participate. Unable to secure agreement from British foreign secretary Anthony Eden, Eisenhower and Dulles were thwarted, and decided instead to throw their support behind the new South Vietnamese regime of Ngo Dinh Diem.

Another period marked by reluctance to use force followed the Vietnam War. Once the last American troops withdrew in 1973, Congress rejected the possibility they might return, banning intervention in Indochina without explicit legislative approval. Congress also adopted the War Powers Resolution, more significant as a symbolic statement about the wish to avoid being drawn into a protracted military conflict by presidential initiative than as a practical measure to curb presidential bellicosity.

It is no coincidence that Obama’s key foreign and defense policy nominees were shaped by the crucible of Vietnam. Both Chuck Hagel and John Kerry fought in that war and came away with “the same sensibility about the futilities of war.” Their outlook contrasts sharply with that of Obama’s initial first-term selections to run the State Department and the Pentagon: both Hillary Clinton and Robert Gates backed an increased commitment of troops in Afghanistan in 2009. Although Senators Hagel and Kerry supported the 2002 congressional resolution authorizing the use of force in Iraq, they became early critics of the war. Hagel has expressed doubts about retaining American troops in Afghanistan or using force against Iran.

Given the present climate, we are unlikely to see a major American military commitment during the next several years. Obama’s choice of Kerry and Hagel reflect his view that, as he put it in the 2012 presidential debate about foreign policy, the time has come for nation-building at home. It will suffice in the short run to hold distant threats at bay. Insofar as possible, the United States will rely on economic sanctions and “light footprint” methods such as drone strikes on suspected terrorists.

If the past is any guide, however, this non-interventionist moment won’t last.  The post-Korea and post-Vietnam interludes of reluctance gave way within a decade to a renewed willingness to send American troops into combat. By the mid-1960s, Lyndon Johnson had embraced escalation in Vietnam; Ronald Reagan made his statement through his over-hyped invasion of Grenada to crush its pipsqueak revolutionary regime. The American people backed both decisions.

The return to interventionism will recur because the underlying conditions that invite it have not changed significantly. In the global order, the United States remains the hegemonic power that seeks to preserve stability. We retain a military that is more powerful by several orders of magnitude than any other, and will surely remain so even after the anticipate reductions in defense spending. Psychologically, the American people have long been sensitive to distant threats, and we have shown that we can be stampeded into endorsing military action when a president identifies a danger to our security. (And presidents themselves become vulnerable to charges that they are tolerating American decline whenever a hostile regime comes to power anywhere in the world.)

Those of us who question the American proclivity to resort to the use of force, then, should enjoy the moment.

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.

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By Richard Susskind

The uncharitable might say that I write the same book every four years or so. Some critics certainly accuse me of having said the same thing for many years. I don’t disagree. Since the early 80s, my enduring interest has been in the ways in which technology can modernize and improve the work of the legal profession and the courts. My main underpinning conviction has indeed not changed: that legal work is document and information intensive, and that a whole host of information technologies can and should streamline and sometimes even overhaul traditional methods of practicing law and administering justice.

What have changed, of course, are the enabling technologies. When I started out on what has become a career devoted largely to legal technology, the web had not been invented, nor had tablets, handheld devices, mobile phones, and much else. As new technologies emerge, therefore, I always have a new story to tell and more evidence that suggests the legal world is shifting from being a cottage industry to an IT-enabled information sector.

The evolution of my thinking reflects my own technical interests and career activities over the years. My first work in the field, in the 1980s, focused on artificial intelligence and its potential and limitations in the law. This began in earnest with my doctoral research at Oxford University. I was interested in the possibility of developing computer systems that could solve legal problems and offer legal advice. Many specialists at the time wanted to define expert systems in law in architectural terms (by reference to what underlying technologies were being used, from rule-based systems to neural networks). I took a more pragmatic view and described these systems functionally as computer applications that sought to make scarce legal knowledge and expertise more widely available and easily accessible.

This remains my fundamental aspiration today. I believe there is enormous scope for using technology, especially Internet technology, as a way of providing affordable, practical legal guidance to non-lawyers, especially those who are not able to pay for conventional legal service. These systems may not be expert systems, architecturally-defined. Instead, they are web-based resources (such as online advisory and document drafting systems) and are delivering legal help, on-screen, as envisaged back in the 1980s.

During the first half of the 90s, while I was working in a law firm (Masons, now Pinsent Masons), my work became less academic. I was bowled over by the web and began to form a view of the way it would revolutionize the communication habits of practicing lawyers and transform the information seeking practices of the legal fraternity. I also had some rudimentary ideas about online communities of lawyers and clients; we now call these social networks. My thinking came together in the mid-1990s. I became clear, in my own mind at least, that information technology would definitely challenge and change the world of law. Most people thought I was nuts.

A few years later, to help put my ideas into practice, I developed what I called ‘the grid’ – a simple model that explained the inter-relationships of legal data, legal information, legal knowledge, as found within law firms and shared with clients. I had used this model quite a bit with my clients (by this time, I was working independently) and it seemed to help lawyers think through what they should be doing about IT.

In the years that followed, however, I became even more confident that the Internet was destined to change the legal sector not incrementally and peripherally but radically, pervasively, and irreversibly. But I felt that, in the early 2000s, most lawyers were complacent. Times were good, business was brisk, and the majority of practitioners could not really imagine that legal practice and the court system would be thrown into upheaval by disruptive technologies.

Then came the global recession and, in turn, lawyers became more receptive than they had been in boom times when there had been no obvious reason why they might change course. Dreadful economic conditions convinced lawyers that tomorrow would look little like yesterday.

With many senior lawyers now recognizing that we are on the brink of major change, my current preoccupation is that most law schools around the world are ignoring this future. They continue to teach law much as I was taught in the late 1970s. They are equipping tomorrow’s lawyers to be twentieth century not twenty-first century lawyers. My mission now is to help law teachers to prepare the next generation of lawyers for the new legal world.

Richard Susskind OBE is an author, speaker, and independent adviser to international professional firms and national governments. He is president of the Society for Computers and law IT adviser to the lord chief justice. Tomorrow’s Lawyers is his eighth book.

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Image Credit: ‘The Grid’ courtesy of Richard Susskind. Used with permission. Do not reproduce without explicit permission of Richard Susskind.

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By Christopher Kuner

Tension between different regulatory systems has long existed in certain areas (think of the disagreements between EU and US competition regulators regarding the aborted GE-Honeywell merger in the early 2000s). A similar power struggle is currently underway between different legal regimes regulating the collection, processing, and transfer of personal data (variously referred to in different legal systems as “data protection”, “data privacy”, or “information privacy” law), one that will shape the world in the 21^st century.

Data protection law has traditionally been viewed as a dreary subject of interest only to a few specialists. But whether it involves filling out government forms, purchasing items on the web, communicating with friends and relatives online, or checking in for a flight, almost every activity we engage in nowadays involves the processing of personal data. The growing importance of data processing is reflected in the large number of countries (approximately 100) around the world that have enacted data protection laws, and the countries and international organisations (including the European Union, the OECD, and the United States) that are currently in the process of revising them to meet the challenges posed by globalisation and the rapid growth of the Internet.

Much personal data routinely flows across national borders, and the same data processing may result in the application of multiple laws. The ease with which data flows internationally also means that data privacy law has become a point of competition between different legal systems, with each one striving to achieve the seemingly impossible goal of simultaneously protecting the privacy of individuals, striking a balance between privacy and other important values (e.g., public security), and furthering economic growth.

This competition has been most pronounced between the European Union, which has recently asserted that other countries should follow the “gold standard” of its data protection legislation, and the United States, which believes that its system is even better. Such international regulatory spats illustrate that nations too often view the subject largely as a way to score political points, and that they have failed to grasp some basic facts about the processing of personal data:

• Protection of data privacy is not just a transatlantic issue. Data protection laws have been enacted all over the world, including by regional organizations (APEC, ECOWAS, and others) and dozens of nations in Africa, Latin America, and Asia.
• It is also not just an online issue. Nearly every economic and social activity nowadays involves the processing of personal data, including the most basic ones. Too often regulatory attention focuses on the online “flavour of the month” (e.g., social networks, search engines, etc.), and fails to recognize that data processing has become embedded in every aspect of society.
• And it is not just an economic issue, but one that can help further important developmental goals as well. For example, the UN Secretary General has begun an initiative called “Global Pulse” involving projects such as the use of data analytics to better understand the global state of various infectious diseases, and using a centralized text messaging system to allow mobile phone users to report on people trapped under buildings following an earthquake, among others. Data protection law is currently not conceived to facilitate the large-scale use of data mining for purposes related to development, public health, and similar goals, but these uses will greatly increase in coming years, and will challenge our assumptions about the purposes and structure of regulation.

Part of the problem is that while data protection and privacy issues have global ramifications, the legal framework for them is still very much a matter of local or, at best, regional regulation. While some regional organizations (in particular the Council of Europe) are attempting to become more global, there are substantial differences in the way the subject is viewed in different countries and legal systems. In contrast to some other areas of the law, there is also a lack of legal instruments and institutions of a global scope covering privacy and data protection.

Legal regulation of data processing often stands in tension with economic pressures that encourage the processing and transfer of personal data, and political pressures that inhibit the development of coordinated and coherent regulation. States are only too happy to adopt legal requirements for the private sector that they are unwilling to comply with themselves (e.g., with regard to data processing for law enforcement purposes), and technology to process personal data advances faster than the law can keep up with.

From being considered a niche area, data protection law has evolved to the point that it is hard to find areas of human endeavour that it does not concern. The way that the struggles over data protection are resolved in the coming years will determine the kind of world we live in, and the kind of Internet we have.

Dr. Christopher Kuner is editor-in-chief of the journal International Data Privacy Law. He is author of European Data Protection Law: Corporate Compliance and Regulation, and the forthcoming book Transborder Data Flow Regulation and Data Privacy Law in which he elaborates some of the topics discussed here. Dr. Kuner is Senior Of Counsel at Wilson Sonsini Goodrich & Rosati in Brussels, and an Honorary Fellow of the Centre for European Legal Studies, University of Cambridge.

Combining thoughtful, high level analysis with a practical approach, International Data Privacy Law has a global focus on all aspects of privacy and data protection, including data processing at a company level, international data transfers, civil liberties issues (e.g., government surveillance), technology issues relating to privacy, international security breaches, and conflicts between US privacy rules and European data protection law.

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Image credit: Laptop keyboard with fingerprint enlarged by magnifying glass – computer criminality concept. Image by Jirsak, iStockphoto.

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Learned Hand was born on this day in 1872. In a letter dated 15 May 1951, Judge Learned Hand wrote President Harry S. Truman to declare his intention to retire from “regular active service.” President Truman responded to Hand’s news with a letter praising his service to the country. These letters are excerpted from Reason and Imagination: The Selected Letters of Learned Hand, edited by Constance Jordan.

To Judge Learned Hand

May 23, 1951
The White House, Washington, D.C.

Dear Judge Hand:

Your impending retirement fills me with regret, which I know is shared by the American people. It is hard to accept the fact that after forty-two years of most distinguished service to our Nation, your activities are now to be narrowed. It is always difficult for me to express a sentiment of deep regret; what makes my present task so overwhelming is the compulsion I feel to attempt, on behalf of the American people, to give in words some inkling of the place you have held and will always hold in the life and spirit of our country.

Your profession has long since recognized the magnitude of your contribution to the law. There has never been any question about your preeminent place among American jurists – indeed among the nations of the world. In your writings, in your day-to-day work for almost half a century, you have added purpose and hope to man’s quest for justice through the process of law. As judge and philosopher, you have expressed the spirit of America and the highest in civilization which man has achieved. America and the American people are the richer because of the vigor and fullness of your contribution to our way of life.

We are compensated in part by the fact that you are casting off only a part of the burdens which you have borne for us these many years, and by our knowledge that you will continue actively to influence our life and society for years to come. May you enjoy many happy years of retirement, secure in the knowledge that no man, whatever his walk of life, has ever been more deserving of the admiration and the gratitude of his country, and indeed of the entire free world.

Very sincerely yours, Harry S. Truman

Hand immediately responded to the President’s letter:

To President Harry S. Truman
May 24, 1951

Dear Mr. President:

Your letter about my retirement quite overwhelms me. I dare not believe that it is justified by anything which I have done, yet I cannot but be greatly moved that you should think that it is. The best reward that anyone can expect from official work is the approval of those competent to judge who become acquainted with it; your words of warm approval are much more than I could conceivably have hoped to receive. I can only tell you of my deep gratitude, and assure you that your letter will be a possession for all time for me and for those who come after me.

Respectfully yours, LEARNED HAND

The letters above were 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. Learned Hand 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.

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Image credit: (1) Harry S Truman. US National Archives. Public domain via Wikimedia Commons. (2) Judge Learned Hand circa 1910. Public domain via Wikimedia Commons.

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By ELvin Lim

Conservatives hate it; liberals love it. His Second Inaugural Address evinces Barack Obama coming into his own, projecting himself unvarnished and real before the world. No more elections for him, so also less politics. He is number 17 in the most exclusive club in America — presidents who get to serve a second term. Yes, there’s still the bonus of a legacy. But the legacy-desiring second-term president would just sit back and do no harm, rather than put himself out there for vociferous battles to come.

For better or for worse, Barack Obama believes that the constitutional compact from whence he derives the fullness of his authority gives him a responsibility. He believes that the framers of the Constitution “gave to us a republic, a government of, and by, and for the people. Entrusting each generation to keep safe our founding creed.” But he did not mean that he was an originalist, or a “constitutional conservative.” Indeed, the very opposite is true. Obama believes that the “founding creed” is no less than this: “we have always understood that when times change, so must we, that fidelity to our founding principles requires new responses to new challenges.” Originalism means change, he is telling us.

This is a president no longer prepared to dally, or to punt on his liberal beliefs. “The commitments we make to each other through Medicare and Medicaid and Social Security, these things do not sap our initiative. They strengthen us,” he said. “Our journey is not complete until our gay brothers and sisters are treated like anyone else under the law,” he also proclaimed. In his mind, there is no need to coddle the political right anymore, and he believes that the truth as he tells it will set us free.

So unreserved was Obama’s conviction that he took the sacred line of modern conservatism, “We the people declare today that the most evident of truth that all of us are created equal — is the star that guides us still” and turned it into the most liberal of philosophies, that “our individual freedom is inextricably bound to the freedom of every soul on Earth.” Obama never really had much of a stomach for unadulterated libertarianism; in his heart of hearts, this former community organizer is a communitarian. This is why he cited “We the People” five times in his address.

Call Obama liberal, or call him correct; the point is half the country does not agree, and there are tough wars to come. That Obama has been so uncharacteristically upfront about his intentions signals, though, his belief that the national political tide has turned. That on gay rights, immigration, and so forth, either because of his electoral mandate or the changing demographics of the country, he believes he holds the upper hand.

And however short his second-term “honeymoon,” I think he does. Had Obama not been re-elected, his first term might have been construed as a fluke; a bit of electoral charity from a guilt-ridden America willing to give a half-African-Anerican a chance to deliver at the White House. But Barack Obama was re-elected by a vote differential of 5 million. Only the most measly of partisan spirits will deride this victory, and deny Obama the honeymoon that he justly earned.

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.

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By Leigh Ann Wheeler

Demonstration protesting anti-abortion candidate Ellen McCormack at the Democratic National Convention, New York City. Photo by Warren K. Leffler, 14 July 1976. Source: Library of Congress.

Such are today’s arguments for upholding Roe v. Wade, whose fortieth birthday many of us are celebrating.

Others are mourning.

“It’s a child, not a choice!”
“Abortion kills children!”
“Stop killing babies!”

How did we arrive at this stunningly polarized place in our discussion — our national shouting match — over women’s reproductive rights?

Certainly it wasn’t always this way. Indeed, consensus and moderation on the issue of abortion has been the rule until recently.

Even if we go back to biblical times, the brutal and otherwise misogynist law of the Old Testament made no mention of abortion, despite popular use of herbal abortifacients at the time. Moreover, it did not treat a person who caused a miscarriage as a murderer. Fast-forward several thousand years to North American indigenous societies where women regularly aborted unwanted pregnancies. Even Christian Europeans who settled in their midst did not prohibit abortion, especially before “quickening,” or the appearance of fetal movement. Support for restrictions on abortion emerged only in the 1800s, a time when physicians seeking to gain professional status sought control over the procedure. Not until the twentieth century did legislation forbidding all abortions begin to blanket the land.

What happened during those decades to women with unwanted pregnancies is well documented. For a middle-class woman, a nine-month “vacation” with distant relatives, a quietly performed abortion by a reputable physician, or, for those without adequate support, a “back-alley” job; for a working-class woman, nine months at a home for unwed mothers, a visit to a back-alley butcher, or maybe another mouth to feed. Women made do, sometimes by giving their lives, one way or another.

But not until the 1950s did serious challenges to laws against abortion emerge. They began to gain a constitutional foothold in the 1960s, when the Planned Parenthood Federation of America and the American Civil Liberties Union (ACLU) persuaded the US Supreme Court to declare state laws that prohibited contraceptives in violation of a newly articulated right to privacy. By the 1970s, the notion of a right to privacy actually cut many ways, but on January 23, 1973, it cut straight through state criminal laws against abortion. In Roe, the Supreme Court adopted the ACLU’s claim that the right to privacy must “encompass a woman’s decision whether or not to terminate her pregnancy.” But the Court also permitted intrusion on that privacy according to a trimester timetable that linked a woman’s rights to the stage of her pregnancy and a physician’s advice; as the pregnancy progressed, the Court allowed the state’s interest in preserving the woman’s health or the life of the fetus to take over.

Roe actually returned the country to an abortion law regime not so terribly different from the one that had reigned for centuries if not millennia before the nineteenth century. The first trimester of a pregnancy, or the months before “quickening,” remained largely under the woman’s control, though not completely, given the new role of the medical profession. The other innovation was that women’s control now derived from a constitutional right to privacy — a right made meaningful only by the availability and affordability of physicians willing to perform abortions.

With these exceptions, the Supreme Court’s decision in Roe did little more than return us to an older status quo.  So why has it left us screaming at each other over choices and children, rights and murder?

There are many answers to this question, but a major one involves partisan politics.

On the eve of Roe, to be a Catholic was practically tantamount to being a Democrat. Moreover, feminists were as plentiful in the Republican Party as they were in the Democratic Party. Not so today, on the eve of Roe’s fortieth birthday. Why?

As the Catholic Church cemented its position against abortion and feminists embraced abortion rights as central to a women’s rights agenda, politicians saw an opportunity to poach on their opponent’s constituency and activists saw an opportunity to hitch their fortunes to one of the two major parties. In the 1970s, Paul Weyrich, the conservative activist who coined the phrase “moral majority,” urged Republicans to adopt a pro-life platform in order to woo Catholic Democrats. More recently, the 2012 election showed us Republican candidates who would prohibit all abortions — at all stages of a pregnancy and even in cases of rape and incest — and a proudly, loudly pro-choice Democratic Party.

In the past forty years, abortion has played a major role in realigning our major political parties, associating one with conservative Christianity and the other with women’s rights — a phenomenon that has contributed to the emergence of a twenty-point gender gap, the largest in US history. Perhaps, then, it is no surprise that we are screaming at each other.

Leigh Ann Wheeler is Associate Professor of History at Binghamton University. She is co-editor of the Journal of Women’s History and the author of How Sex Became a Civil Liberty and Against Obscenity: Reform and the Politics of Womanhood in America, 1873-1935.

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Are the political ideals of liberty and equality compatible? In this video, OUP author James P. Sterba of University of Notre Dame, joins Jan Narveson of University of Waterloo, to debate the practical requirements of a political ideal of liberty. Not only Narveson but the entire audience at the libertarian Cato Institute where this debate takes place is, in Sterba’s words,  ”hostile” to his argument that the ideal of liberty leads to (substantial) equality.  Sterba goes on to further develop that argument in From Rationality to Equality.

Click here to view the embedded video.

James P. Sterba is Professor of Philosophy at the University of Notre Dame. His latest work, From Rationality to Equality, publishes in February 2013. His previous publications include Three Challenges to Ethics (OUP, 2001), The Triumph of Practice over Theory in Ethics (OUP, 2005) and Does Feminism Discriminate Against Men? A Debate, with Warren Farrell (OUP, 2007). He is past president of the American Philosophical Association (Central Division).

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By Gary Rosen

From the 1920s to the 1950s, Ira B. Arnstein was the unrivaled king of music copyright litigants. He spent the better part of those 30 years trying to prove that many of the biggest hits of the Golden Age of American Popular Song were plagiarized from his turn-of-the-century parlor piano pieces and Yiddish songs. “I suppose we have to take the bad with the good in our system which gives everyone their day in court,” Irving Berlin once said, but “Arnstein is stretching his day into a lifetime.”

Arnstein never won a case, but he left an enduring imprint on copyright law merely by getting his days in court and establishing precedents that later led to copyright infringement judgments against such notables as George Harrison and Michael Bolton. Though his claims often strained judicial credulity, Arnstein had a gift for posing conundrums that engaged some of the finest legal minds of his era, forcing them to refine and sharpen their doctrines.

Over the years, Arnstein laid claim to more than a hundred standards of the Great American Songbook. This playlist of 15 songs — from Irving Berlin’s “A Russian Lullaby” of 1927 to Cole Porter’s “I Love Paris” of 1952 — is representative, and we have selected recordings that illustrate performance styles from the 20s to today. “No one,” as one lawyer wrote and you will agree, “can accuse Arnstein of courting feeble opposition.”

Gary A. Rosen is the author of Unfair to Genius: The Strange and Litigious Career of Ira B. Arnstein. He has practiced intellectual property law for more than 25 years. Before entering private practice, he served as a law clerk to federal appellate judge and award-winning legal historian A. Leon Higginbotham, Jr.

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By E. Tory Higgins

“Our country is divided.” “Congress is broken.” “Our politics are polarized.” Most Americans believe there is less political co-operation and compromise than there used to be. And we know who is to blame for this situation—it’s our political opponents. Democrats know that Republicans are to blame, and Republicans know that Democrats are to blame. Not only do we know that our political opponents are to blame, but we are suspicious of their motives, of why they take the positions they take. Bottom line: we can’t trust them.

This is a serious problem for our country. One source of the problem is a misperception of what really motivates people’s political opinions, judgments, and actions. People often assume such opinions are all about self-interest or all about “carrots and sticks.” As Romney recently put it, “What the president’s campaign did was focus on certain members of his base coalition, give them extraordinary financial gifts from the government, and then work very aggressively to turn them out to vote, and that strategy worked.” Plenty of commentators criticized the reference to minorities, the poor, and students as essentially being paid off for their votes, but few if any disputed the overall assumption that the “carrots” candidates offer voters determine the vote. Indeed, the field of ‘public choice’ in economics assumes just this, that voters are guided by their own self-interest and “vote their pocketbooks.”

What does it mean for our political conversation to assume that the opinions, judgments, and actions of our political opponents are motivated by self-interest? It means that their stands on political issues are selfish rather than being in the best interest of our country. We can’t trust them to be concerned about what is best for the rest of us because our interests are different than their interests. We assume that they do not have good will. But what if people are not primarily motivated by self-interest (by “carrots”) in the political domain or in any other domain of life? In fact, there is substantial evidence from research on human motivation that what people want goes well beyond attaining “carrots” (or “gifts”). What they want is to be effective.

Brian Deese, right, Special Assistant to the President for Economic Policy, and Economic Advisor Gene Sperling confer as President Barack Obama calls regional politicians to inform them of the next day’s announcement about General Motors filing for bankruptcy, Sunday night, May 31, 2009. (Official White House Photo by Pete Souza)

Yes, one way of being effective is to have desired outcomes, which can include attaining “carrots” (and avoiding “sticks”). But there is much more to being effective. People also want to be effective at establishing what’s real or right or correct (being effective in finding the truth), as when people want to hear the truth about themselves or what is happening in their lives even if “the truth hurts.” Indeed, people want to observe, discover, and learn about all kinds of things in the world that have nothing to do with their attaining “carrots” (or avoiding “sticks”). And people also want to manage what happens, to have an effect on the world (being effective in having control), as when children jump up and down in a puddle just to make a splash. Indeed, people will take on pain and even risk injury to feel in control of a difficult and challenging activity, as illustrated most vividly in extreme sports.

It is establishing what’s real (truth) and managing what happens (control) that often are our primary motivations — rather than self-interest — and this is both good news and bad news if we are to change the political conversation. The bad news is that humans, uniquely among animals, establish truth by sharing reality with others who agree with their beliefs (or with whom they can establish agreed-upon assumptions). And when they do create a shared reality with others, they experience their beliefs as objective — the whole truth and nothing but the truth. This means that when others disagree with these beliefs, as when Democrats and Republicans disagree with each other, each side is so certain that what they believe is reality, that they infer that those on the other side must either be lying about what they truly believe or they are too stupid to recognize the truth or they are simply crazy. These derogations of our political opponents don’t derive from our self-interests being in conflict with them. It is more serious than that. It derives from the establishment of a different shared reality to them, a shared reality that we are highly motivated to maintain because it gives us the truth about the how the world works.

This is bad news indeed. But if we understand that out political opponents just want to be effective in truth, there is a ‘good news’ silver lining. The good news is that we need not characterize our political opponents as being selfish, or liars, or stupid, or crazy. We need not question their good will. Instead, we can recognize that they, like us, want truth and control, and they want truth and control to work together effectively. They want to “go in the right direction.” They, like us, want our country to be strong. They want Americans to live in peace and prosperity. Yes, they have different ideas about what direction is the right one to make this happen, but this is something we can discuss. In order to establish what’s real, manage what happens, and go in the right direction — which are ways of being effective that we all want — we need to listen to one another and and learn from one another. This is a political conversation worth having. Let us have that respectful, serious conversation in the New Year and search for common ground. Good will to all.

E. Tory Higgins is the author of Beyond Pleasure and Pain: How Motivation Works. He is a Fellow of the American Academy of Arts & Sciences. He has received the Distinguished Scientist Award from the Society of Experimental Social Psychology, the William James Fellow Award for Distinguished Achievements in Psychological Science (from the Association for Psychological Science), and the American Psychological Association Award for Distinguished Scientific Contributions. He is also a recipient of Columbia’s Presidential Award for Outstanding Teaching.

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By Louis René Beres

Oddly, perhaps, there are striking similarities between Western Epicureanism and Eastern Buddhism. Even a cursory glance at Lucretius, On The Nature of Things, reveals a characteristically “Buddhist” position on human oneness and human transience. Greek and Roman Stoicism, too, share this animating concept, a revealing vision of both interpersonal connectedness and civilizational impermanence.

But what has this understanding to do with current world affairs, especially patterns of globalization and interdependence? Consider that in their common passage from the ethereal to the corporeal, Epicureanism, Stoicism and Buddhism all acknowledge one great and indissoluble bond of everlasting being, an essential and harmonious conflation of self and world. While each instructs that the death of self is meaningless, even a delusion, all also agree that the commonality of death can overcome corrosive divisions. This recognized commonality can provide humankind with authentically optimal sources of global cooperation. Whether or not we can ever get beyond our fear of death, it is only this commonality that can ultimately lift us above planetary fragmentation and explosive disunity.

For political scientists, economists, and other world affairs specialists, such a “molecular” view can open new opportunities for the expanding study of globalization and international relations. Rather than focus narrowly on more traditional institutions and norms, this neglected perspective can now offer scholars a chance to look more penetratingly behind the news. The outer world of politics and statecraft is often a reflection of our innermost private selves.

Virtually every species (more than ninety-nine percent, to be more exact) that once walked or crawled on this nearly-broken planet has already become extinct. Exeunt omnes? Where shall we go?

Even among the most sophisticated scholars of globalization and world politics, certain essential truths remain well hidden. As a species, whether openly or surreptitiously, we often take a more-or-less conspicuous delight in the suffering of others. Psychologists and writers call it schadenfreude.

What sort of species can tolerate or venerate such a hideous source of pleasure? To what extent, if any, is this venal quality related to our steadily-diminishing prospects for building modern civilizations upon ancient premises of human oneness?

“Our unconscious,” wrote Freud, “does not believe in its own death; it behaves as if it were immortal. “What we ordinarily describe as heroism may in some cases be no more than denial. Still, an expanded acceptance of personal mortality may represent the very last best chance we have to endure together.

Such acceptance can come from personal encounters with death. All things move in the midst of death, but what does it really feel like to almost die? What can we learn from experiencing near death (no one can “experience” death itself, an elementary insight shared famously by Lucretius, Schopenhauer, and Santayana), and then emerging, whole, to live again?

Can we learn something here that might benefit the wider human community, something that could even move us beyond schadenfreude to viable forms of cooperation and globalization?

Death happens to us all, but our awareness of this expectation is blunted by deception. To accept forthrightly that we are all flesh and blood creatures of biology is more than most humans can bear. Normally, there is even a peculiar embarrassment felt by the living in the presence of the dead and dying. It is almost as if death and dying were reserved only for others.

That we, as individuals, typically cling to sacred promises of redemption and immortality is not, by itself, a species-survival issue. It becomes an existential problem, one that we customarily call war, terrorism, or genocide, only when these assorted promises are forcibly limited to certain segments of humanity, but are then denied to other “less-worthy” segments.

In the end, we must learn to understand, all national and international politics are genuinely epiphenomenal, a symptomatic reflection of underlying and compelling private needs. The most pressing of these private needs is undoubtedly an avoidance of personal death.

It is generally not for us to choose when to die. Rather, our words, our faces, and our countenance, will sometime lie well beyond any considerations of conscious choice. But we can still choose to recognize our shared common fate, and therefore our critical interdependence. This incomparably powerful recognition could carry with it an equally significant collective promise.

Much as we might like to please ourselves with various qualitative presumptions of hierarchy and differentiation, we humans are pretty much the same. This is already abundantly clear to scientists and physicians. Whatever our divergent views on what  happens to us after death, the basic mortality that we share can represent the very last best chance we have to coexist and survive. This is the case only if we can first make the very difficult leap from a shared common fate, to more generalized feelings of empathy.

We can care for one another as humans, but only after we have first acknowledged that the judgment of a common fate will not be waived by any harms that are inflicted deliberately upon others, upon the “unworthy.” In essence, modern war, terror, and genocide are often disguised expressions of religious sacrifice. They may represent utterly desperate human hopes of overcoming private mortality through the killing of “outsiders.” Such sacrificial hopes are fundamentally and irremediably incompatible with the more cooperative forms of world politics.

A dual awareness of our common human destination and of the associated futility of sacrifice, offer medicine against endless torment in the global “state of nature.” Only such awareness can genuinely relieve an otherwise incessant war of all against all. Only a person who can feel deeply within himself or herself the unalterable fate and suffering of a broader humanity will ever be able to embrace genuine compassion, and thus to reject destructive spasms of collective violence.

There can be no private conquests of death through war, terror, or genocide. To cooperate and survive as a species, a uniquely courageous and worldwide embrace of mortality, empathy, and caring will first be needed. For students of globalization and world politics, this imperative can represent a timeless understanding of almost unimaginable potency. It’s time to think more about such primal unity, and its still-latent promise for humane globalization and interdependence.

Louis René Beres, Professor of Political Science and International Law at Purdue, was educated at Princeton (Ph.D., 1971). He is currently examining previously unexplored connections between human death fears and world politics. Born in Zürich, Switzerland, at the end of World War II, Professor Beres is the author of ten books, and several hundred articles, on international relations and international law. He is a regular contributor to the OUPblog.

If you’re interested in this subject, you may be interested in Globalization for Development: Meeting New Challenges by Ian Goldin and Kenneth Reinert. Globalization and its relation to poverty reduction and development are not well understood. Goldin and Reinert explore the ways in which globalization can overcome poverty or make it worse, define the big historical trends, identify the main globalization processes (trade, finance, aid, migration, and ideas), and examine how each can contribute to economic development.

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“It was brand new, it was relatively unregulated, and it posed a mortal threat to the music business as it existed at that time, because it was making the product available for free to the public.” That sounds like a discussion of digital music, but it’s a comment on the introduction of radio in the early 20th century.

In this video, Gary A. Rosen, an intellectual property lawyer, explains that the radio industry made the same arguments as digital music providers in their similar battles with the music industry, nearly 100 years apart. The long and tortured career of Ira B. Arnstein, “the unrivaled king of copyright infringement plaintiffs,” opens a curious window into the evolution of copyright law in the United States and the balance of power in Tin Pan Alley. Although Arnstein never won a case, author Gary A. Rosen shows that the decisions rendered ultimately defined some of the basic parameters of copyright law. Arnstein’s most consequential case, against a dumbfounded Cole Porter, established precedents that have provided the foundation for successful suits against George Harrison, Michael Bolton, and many others.

The music industry, radio in the 1920s, and the Internet today

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Ira Arnstein and the origin of “Unfair to Genius”

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Gary A. Rosen is the author of Unfair to Genius: The Strange and Litigious Career of Ira B. Arnstein. He has practiced intellectual property law for more than 25 years. Before entering private practice, he served as a law clerk to federal appellate judge and award-winning legal historian A. Leon Higginbotham, Jr.

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