Much as I hate to rain on my Cato colleague Juan Carlos Hidalgo’s understandable happiness at Argentina's decriminalization of personal consumption/possession of small amounts of drugs, this doesn’t exactly represent a ray of hope in the country's otherwise gloomy policy mix. Not because I believe in the War on Drugs – I can’t imagine anybody at Cato does – but because it was a court that reached this decision instead of a policymaking body.
Imagine the outcry if the U.S. Supreme Court simply decreed a policy it didn’t like to be unconstitutional – I know, with Justices Stevens and Kennedy at the apogee of their powers, it’s not a far stretch. Better yet, recall the poison the Court injected into our legal and political systems when it short-circuited the political process by inventing a right to abortion in Roe v. Wade (again, I’m not saying anything about the underlying policy arguments).
So it is here: Instead of having the Argentine Congress change the law, the nation’s Supreme Court (by a vote of 4-3) simply decreed that criminalizing drug use is unconstitutional. Reports are still sketchy, but this sounds like precisely the kind of judicial fiat developing (or any) countries need to avoid if they want to strengthen the rule of law.
[Cross-posted at Cato's blog.]
Thursday, April 24, 2008
Tuesday, April 22, 2008
Campaign Finance Reform Meets Kurt Vonnegut
This morning, as Pennsylvania Democrats went to the polls in the last large primary before their nominating convention, the Supreme Court heard the latest challenge to the McCain-Feingold campaign finance law: Davis v. FEC, in which Cato filed an amicus brief, questions the “Millionaires’ Amendment,” which attempts to discourage candidates for election to Congress from spending more than $350,000 from their own personal funds. It penalizes campaign spending above that threshold by enhacing the political speech of the self-financing candidate’s opponent through increased contribution limits and unlimited coordinated party expenditures.
This penalty unconstitutionally chills candidates from engaging in protected political speech beyond that personal funds ceiling, and does so without serving any governmental interest that the Supreme Court has recognized. The penalty doesn’t even prevent the “corruption” that was the rationale for McCain-Feingold, because there is no threat of quid pro quo from a candidates’s expenditure of her own funds. And the Court has expressly rejected “leveling the playing field” of financial resources as an interest sufficient to justofy the infringement of First Amendment rights. Ultimately, the “Millionaires’ Amendment” is nothing more than an incumbency protection mechanism designed by Congress for its own benefit.
Based on this morning’s argument, I think the Court will issue a narrow decision striking down the Millionaires’ Amendment based on the disclosure burden, with separate concurrences on broader First Amendment grounds. The most interesting questioning, not unexpectedly, came from Justice Scalia, who, evoked the reductio ad absurdum of the “leveling” provision (which reminded me of the old Vonnegut story about equality run amock, Harrison Bergeron): “What if one candidate is more eloquent than the other one? You make him talk with pebbles in his mouth?”
Note: My colleague John Samples and I visited Capitol Hill yesterday to give a public briefing on the law and policy of self-funded campaigns.
[Cross-posted at Cato's blog.]
This penalty unconstitutionally chills candidates from engaging in protected political speech beyond that personal funds ceiling, and does so without serving any governmental interest that the Supreme Court has recognized. The penalty doesn’t even prevent the “corruption” that was the rationale for McCain-Feingold, because there is no threat of quid pro quo from a candidates’s expenditure of her own funds. And the Court has expressly rejected “leveling the playing field” of financial resources as an interest sufficient to justofy the infringement of First Amendment rights. Ultimately, the “Millionaires’ Amendment” is nothing more than an incumbency protection mechanism designed by Congress for its own benefit.
Based on this morning’s argument, I think the Court will issue a narrow decision striking down the Millionaires’ Amendment based on the disclosure burden, with separate concurrences on broader First Amendment grounds. The most interesting questioning, not unexpectedly, came from Justice Scalia, who, evoked the reductio ad absurdum of the “leveling” provision (which reminded me of the old Vonnegut story about equality run amock, Harrison Bergeron): “What if one candidate is more eloquent than the other one? You make him talk with pebbles in his mouth?”
Note: My colleague John Samples and I visited Capitol Hill yesterday to give a public briefing on the law and policy of self-funded campaigns.
[Cross-posted at Cato's blog.]
Friday, April 18, 2008
McCain is Better on Judges
Cato scholars have increasingly been evaluating the respective policies of John McCain, Hillary Clinton, and Barack Obama. The trade shop understandably prefers McCain (see my colleague Sallie James’s new paper), as does, cautiously, our director of health and welfare studies, Michael Tanner. The foreign policy shop, meanwhile, doesn’t like McCain because he is ”wedded to perpetual war” and generally given to neoconservative tendencies.
On judges, I’ll go with the trade and health care folks: While John McCain’s views on the First Amendment are unacceptable to freedom-lovers of any stripe, he has at least promised to nominate Supreme Court justices in the mold of John Roberts and Sam Alito (who have ruled against campaign finance restrictions). Obama and Clinton, meanwhile, are in the John Paul Stevens camp of relying on empathy, international opinion, and “my own experience” as a basis for constitutional interpretation.
Indeed, while defending his vote against Chief Justice Roberts’s confirmation, Obama explained that his standard for a justice must be “one’s deepest values, one’s core concerns, one’s broader perspectives on how the world works, and the depth and breadth of one’s empathy.”
As Jonah Goldberg says in a devastating column, “Now that is a pure expression of the principle of judicial fiat.”
Supreme Court justices take an oath to “administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent on me as a justice of the Supreme Court of the United States under the Constitution and laws of the United States, so help me God.” Any contention that justices must tilt toward any particular type of party — the downtrodden (or privileged), the politically unpopular (or popular), the ethnic minority (or majority) — is an argument for judicial dictatorship instead of the rule of law.
As Roberts said when Senator Richard Durbin (D-IL) asked him whether he would be “for the little guy,” if the law says the little guy wins, then the little guy should win — and if the law says the big guy wins, then it would be a miscarriage of justice to rule for the little guy. And those who don’t like that result should complain to their elected officials and get the law changed.
[Cross-posted at Cato's blog.]
On judges, I’ll go with the trade and health care folks: While John McCain’s views on the First Amendment are unacceptable to freedom-lovers of any stripe, he has at least promised to nominate Supreme Court justices in the mold of John Roberts and Sam Alito (who have ruled against campaign finance restrictions). Obama and Clinton, meanwhile, are in the John Paul Stevens camp of relying on empathy, international opinion, and “my own experience” as a basis for constitutional interpretation.
Indeed, while defending his vote against Chief Justice Roberts’s confirmation, Obama explained that his standard for a justice must be “one’s deepest values, one’s core concerns, one’s broader perspectives on how the world works, and the depth and breadth of one’s empathy.”
As Jonah Goldberg says in a devastating column, “Now that is a pure expression of the principle of judicial fiat.”
Supreme Court justices take an oath to “administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent on me as a justice of the Supreme Court of the United States under the Constitution and laws of the United States, so help me God.” Any contention that justices must tilt toward any particular type of party — the downtrodden (or privileged), the politically unpopular (or popular), the ethnic minority (or majority) — is an argument for judicial dictatorship instead of the rule of law.
As Roberts said when Senator Richard Durbin (D-IL) asked him whether he would be “for the little guy,” if the law says the little guy wins, then the little guy should win — and if the law says the big guy wins, then it would be a miscarriage of justice to rule for the little guy. And those who don’t like that result should complain to their elected officials and get the law changed.
[Cross-posted at Cato's blog.]
Thursday, April 17, 2008
Olympic Folly
When we think of the Olympics, we increasingly think of corruption scandals, doping, tacky commercialism and, perhaps even worse, all those sappy human interest stories NBC runs on its telecasts. And now we have the Chinese tarnishing this summer’s Games by cracking down in Tibet, leading protestors to disrupt the torch relay in London, Paris, San Francisco, and elsewhere. If only we could go back to those days when the Olympics brought together the world’s youth to hold hands and sing kumbaya while a few people ran around a track and swam in a pool, right?
Actually, these modern Games (or post-modern, if you consider, as I do, the end of the Cold War as a watershed in geopolitics) are much closer to the ancient Greek model than the festival of shamateurism that a bunch of European aristocrats invented at the end of the 19th century. Since the end of the cold war, the Olympics have thrown off the chains of ideological battle and reverted to the values of the original games, among which were the dominance of the personal over the national, the economic over the political and the athletic over the larger concerns of the state. Thus these new-old Olympics have returned to their entertainment, ritual, and athletic essence, for which we can be grateful.
Which is why — I argue in the National Interest Online – however a particular country wants to express its displeasure with China’s oppressive regime, boycotting the Olympics is not the way to go.
[Cross-posted at Cato's blog.]
Actually, these modern Games (or post-modern, if you consider, as I do, the end of the Cold War as a watershed in geopolitics) are much closer to the ancient Greek model than the festival of shamateurism that a bunch of European aristocrats invented at the end of the 19th century. Since the end of the cold war, the Olympics have thrown off the chains of ideological battle and reverted to the values of the original games, among which were the dominance of the personal over the national, the economic over the political and the athletic over the larger concerns of the state. Thus these new-old Olympics have returned to their entertainment, ritual, and athletic essence, for which we can be grateful.
Which is why — I argue in the National Interest Online – however a particular country wants to express its displeasure with China’s oppressive regime, boycotting the Olympics is not the way to go.
[Cross-posted at Cato's blog.]
Tuesday, April 15, 2008
Supreme Court to Nation: Happy Tax Day!
In a fit of either highly coincidental timing or good humor, the Supreme Court today released opinions in two tax cases. In MeadWestvaco Corp. v. Illinois Department of Revenue, the Court limited the power of states to tax the money that a company based in another state earns when it sells off an investment in a division involved in a separate line of business. In U.S. v. Clintwood Elkhorn Mining Co., the Court decided that a taxpayer seeking a refund for an invalid tax under the Constitution’s Export Clause must seek a refund from the government before bringing a lawsuit.
So the taxpayers went 1-1 today, but the cases were both technical and not worth getting into. Perhaps the only interesting thing about them — aside from this whole Tax Day thing — is that they were both unanimous. This technicality and unanimity could be further evidence of Chief Justice Roberts trying to steer the Court to take on less high-profile (typically business) cases, with narrow issues that prevent the fractured 5-4 decision-making that make the Court seem more political than it really is (or should be).
[Cross-posted at Cato's blog.]
So the taxpayers went 1-1 today, but the cases were both technical and not worth getting into. Perhaps the only interesting thing about them — aside from this whole Tax Day thing — is that they were both unanimous. This technicality and unanimity could be further evidence of Chief Justice Roberts trying to steer the Court to take on less high-profile (typically business) cases, with narrow issues that prevent the fractured 5-4 decision-making that make the Court seem more political than it really is (or should be).
[Cross-posted at Cato's blog.]
Monday, April 14, 2008
Dispatch from the ASIL Conference III
Some wrap-up notes from the ASIL conference that concluded on Saturday:
1. The second panel I attended Thursday covered the very timely “Civil Liberties in Times of Crisis.” Air Force Colonel Morris Davis — who resigned as chief prosecutor at Guantanamo — opened with a criticism of the military tribunals as unworkable; he agreed that terrorism detainees held in Gitmo (let alone Iraq) don’t have constitutional rights, but the politicization of the process has delegitimized what should be an open, transparent, and efficient processing of enemy combatants. Covington & Burling partner David Remes, who has represented many of the detainees, called for simply applying the criminal justice paradigm to international terrorists (as with the blind sheik after the first WTC bombing and with Timothy McVeigh). Hofstra’s Julian Ku continued that line by supporting the extension of constitutional rights to foreigners and applying international law domestically. Human Rights First’s Elisa Massimino called for the U.S. to be a shining city upon a hill (my characterization, certainly not her words) in terms of being an example on human rights — and linked American political power to its respect for international law.
Then came Q & A, which as it happened centered mostly on a very short question that I asked: Is there a difference between national security and law enforcement, and if there is what are the consequences for the handling of detainees suspected of being terrorists? Col. Davis said that national security is the correct paradigm but that the military commissions have been poorly executed by political appointees. David Remes, to his credit, explained that the real difference between national security and criminal justice is one of policy, and it is not up to the courts to make those kinds of decisions.
My view: I agree with Davis that national security courts (along the lines proposed by Jack Goldsmith and Neal Katyal) are the only way to go in this world of post-modern asymmetrical warfare. National security and law enforcement are different governmental functions, and to conflate the two (like John Kerry did in 2004) or to suggest that constitutional rights apply to everyone everywhere (but international law is supreme in the U.S.) is to throw out the most basic understandings of political theory.
2. On Friday I attended a very interesting panel on the Economic Security and the Committee on Foreign Investment in the U.S. (the latest reform of which I wrote about here). On CFIUS, everyone seems satisfied with the latest reform (which increased openness and aims to prevent political blow-ups like Dubai PortsWorld) and is comfortable with handling of Sovereign Wealth Funds, which Dan Ikenson and Jim Dorn have written about recently. [Also, note that last week Canada’s equivalent of CFIUS blocked a foreign acquisition for the first time time ever. The purchasing company was from… the US! The Canadian company is a leading satellite reconnaissance developer (e.g., sees through clouds and ice, apparently finding oil/mineral deposits in the Arctic).
3. I also attended a hugely overcrowded — people spilled out into the hallway, and I ended up sitting on the floor beside the panelists’ table — panel on “Restoring Rule of Law in Post-Conflict and Stabilization Operations.” I’ve written about these issues before in the context of Iraq, and this panel mainly provided anecdotes about Liberia, Sierra Leone, and Bosnia. A young British researcher also proposed international trusteeships as a useful mechanism (a la the old — or not so old, see Kosovo — UN protectorates). A difficult set of issues, not least because of questions over the legitimacy of outside intervention, how to achieve post-conflict justice and social reconciliation, and how to advise a legal system without being seen as imposing foreign values.
4. The final events I attended were a roundtable discussion by various foreign ministries’ legal advisers and an address by Zalmay Khalilzad, the U.S. ambassador to the U.N. Both of these were disappointing in that all these people are learned and experienced but didn’t really have anything new to say. If only John Bolton were up there…
[Cross-posted at Cato's blog.]
1. The second panel I attended Thursday covered the very timely “Civil Liberties in Times of Crisis.” Air Force Colonel Morris Davis — who resigned as chief prosecutor at Guantanamo — opened with a criticism of the military tribunals as unworkable; he agreed that terrorism detainees held in Gitmo (let alone Iraq) don’t have constitutional rights, but the politicization of the process has delegitimized what should be an open, transparent, and efficient processing of enemy combatants. Covington & Burling partner David Remes, who has represented many of the detainees, called for simply applying the criminal justice paradigm to international terrorists (as with the blind sheik after the first WTC bombing and with Timothy McVeigh). Hofstra’s Julian Ku continued that line by supporting the extension of constitutional rights to foreigners and applying international law domestically. Human Rights First’s Elisa Massimino called for the U.S. to be a shining city upon a hill (my characterization, certainly not her words) in terms of being an example on human rights — and linked American political power to its respect for international law.
Then came Q & A, which as it happened centered mostly on a very short question that I asked: Is there a difference between national security and law enforcement, and if there is what are the consequences for the handling of detainees suspected of being terrorists? Col. Davis said that national security is the correct paradigm but that the military commissions have been poorly executed by political appointees. David Remes, to his credit, explained that the real difference between national security and criminal justice is one of policy, and it is not up to the courts to make those kinds of decisions.
My view: I agree with Davis that national security courts (along the lines proposed by Jack Goldsmith and Neal Katyal) are the only way to go in this world of post-modern asymmetrical warfare. National security and law enforcement are different governmental functions, and to conflate the two (like John Kerry did in 2004) or to suggest that constitutional rights apply to everyone everywhere (but international law is supreme in the U.S.) is to throw out the most basic understandings of political theory.
2. On Friday I attended a very interesting panel on the Economic Security and the Committee on Foreign Investment in the U.S. (the latest reform of which I wrote about here). On CFIUS, everyone seems satisfied with the latest reform (which increased openness and aims to prevent political blow-ups like Dubai PortsWorld) and is comfortable with handling of Sovereign Wealth Funds, which Dan Ikenson and Jim Dorn have written about recently. [Also, note that last week Canada’s equivalent of CFIUS blocked a foreign acquisition for the first time time ever. The purchasing company was from… the US! The Canadian company is a leading satellite reconnaissance developer (e.g., sees through clouds and ice, apparently finding oil/mineral deposits in the Arctic).
3. I also attended a hugely overcrowded — people spilled out into the hallway, and I ended up sitting on the floor beside the panelists’ table — panel on “Restoring Rule of Law in Post-Conflict and Stabilization Operations.” I’ve written about these issues before in the context of Iraq, and this panel mainly provided anecdotes about Liberia, Sierra Leone, and Bosnia. A young British researcher also proposed international trusteeships as a useful mechanism (a la the old — or not so old, see Kosovo — UN protectorates). A difficult set of issues, not least because of questions over the legitimacy of outside intervention, how to achieve post-conflict justice and social reconciliation, and how to advise a legal system without being seen as imposing foreign values.
4. The final events I attended were a roundtable discussion by various foreign ministries’ legal advisers and an address by Zalmay Khalilzad, the U.S. ambassador to the U.N. Both of these were disappointing in that all these people are learned and experienced but didn’t really have anything new to say. If only John Bolton were up there…
[Cross-posted at Cato's blog.]
Thursday, April 10, 2008
Dispatch from the ASIL Conference II
This morning I attended two panels at the ongoing American Society of International Law Conference. The first was “The Politics of War Crimes Tribunals,” which refreshingly did not simply rehash the formation of the International Criminal Court but dealt with the meatier issues of how to decide whom to prosecute, what kind of justice to pursue, etc. The panelists, all academics who had played various roles associated with, for example, the Special Court for Sierra Leone, discussed precisely the issue that most interests me: how to draw the line between law and politics. If you overshoot and try to prosecute thousands of perpetrators of unspeakable crimes, spread across multiple countries, your political support will collapse. If you amnesty everyone, there is no justice. Tough decisions have to be made such that there is some justice, which is better than no justice.
One interesting anecdote from this first panel involved the quixotic attempt by Col. Luke Lea and a motley band of doughboys to capture Kaiser Wilhelm at the end of World War One. The panelist who told this story — which was relevant because the plan was to prosecute the Kaiser as a war criminal – misnamed Col. Lea as having been a Texan, when anyone worth his salt knows that it’s “Luke Lea of Tennessee.”
(Ok, ok, the only reason I knew this factoid was because when I interned for former Senator Bill Frist (R-TN) over a decade ago, I was charged with writing an essay on Lea as part of a project to document the lives of all Tennessee senators. Lea was a one-termer who, upon losing the Democratic nomination after the passage of the Seventeeth Amendment — direct election of senators – volunteered for the Great War.)
[Cross-posted at Cato's blog.]
One interesting anecdote from this first panel involved the quixotic attempt by Col. Luke Lea and a motley band of doughboys to capture Kaiser Wilhelm at the end of World War One. The panelist who told this story — which was relevant because the plan was to prosecute the Kaiser as a war criminal – misnamed Col. Lea as having been a Texan, when anyone worth his salt knows that it’s “Luke Lea of Tennessee.”
(Ok, ok, the only reason I knew this factoid was because when I interned for former Senator Bill Frist (R-TN) over a decade ago, I was charged with writing an essay on Lea as part of a project to document the lives of all Tennessee senators. Lea was a one-termer who, upon losing the Democratic nomination after the passage of the Seventeeth Amendment — direct election of senators – volunteered for the Great War.)
[Cross-posted at Cato's blog.]
Dispatch from the ASIL Conference
Yesterday afternoon marked the beginning of the 102nd meeting of the American Society of International Law (ASIL). ASIL is a venerable organization that takes international law seriously, inviting vigorous discussion and rigorous study of a panoply of issues. Which is not to say that its members don’t skew in a particular way on many issues of the day. Generally speaking, cosmopolitans and those who study and promote international law — especially in academia – are toward the left side of the political spectrum. A left-wing bias in this field means a favorable disposition toward universal norms, global jurisdiction by a world court, and otherwise the imposition of elite consensus on domestic courts and polities. Still, the ASIL membership is not nearly as bad in those tendencies as, say, the ABA’s international law practice group — and, as I said, it invites speakers and writers from a variety of perspectives. Moreover, a fair bit of ASIL’s activities relate to private and commercial international law, with which libertarians should have little beef.
In any event, this year’s conference kicked off with the tenth annual Grotius Lecture, given by Jordan’s ambassador to the United States, Prince Zeid Ra’ad Zeid Al-Hussein. Prince Zeid, educated exclusively in the West, has had a truly distinguished career, and seems to be a voice of enlightenment from a dark part of the world. His remarks, however, on the topic “For Love of Country and International Criminal Law,” skewed both technocratic and rhetorical: He implored the world community to overcome legal obstacles to helping the victims of genocide and war crimes while at the same time recognizing that international courts are not welfare agencies. And of course, somehow, yes somehow, we have to reconcile somewhat outmoded notions of sovereignty with a brave new world of globalized crime. I don’t pretend to give his lofty discourse justice, but in the end it was both intellectual and bland.
What was not bland was the commentary of the good prince’s discussant, David Scheffer of Mayer Brown and Northwestern University Law School. Prof. Scheffer, a high-ranking official in the Albright State Department, first drew a round of applause by announcing that the previous speaker was, without doubt “a future Secretary-General of the United Nations.” (Sounds about right.) Then he crescendoed into an excoriation of pretty much every lawyer in the Bush administration for ignoring international law and making the United States into the red-headed stepchild of the community of nations. Again, it would take more time than it’s worth to fisk his entire approach but suffice it to say the learned professor seems to have a hard time distinguishing law from policy and politics. There is much for which to criticize the Bush administration, but violating international law wouldn’t make my top 100 list.
And that is where the rubber hits the rubber on so many of these issues: Much, if not most, if not all, of international law comes down to diplomacy — the willingness of countries to adhere to their obligations and convince others to do so. As described by Jack Goldsmith and Eric Posner in their brilliant book The Limits of International Law, the behavior of nation-states cannot be predicted, and should not be judged, based on whether they sign this piece of paper or that one. For example, states have interests and there is no international mechanism to force states to comply with treaties that at any given time contravene those interests. Period. (It is often in their interest to comply with their international or binational obligations, of course, because few states want to become, literally, pariahs.) There is so much to say on this, and I will certainly be writing about it in future.
And when it comes to the International Criminal Court (ICC) – the chief bone of contention that many of the attendees to this week’s conference have with the American practice of public international law — what’s important is that U.S. troops treat people much better than their Congolese or Indonesian or Venezuelan counterparts, regardless of which countries submit to the jurisdiction of the ICC. That’s some reality-based law for you.
In sum, an eyebrow-raising start to the conference — and a reminder of the strange position of those of us interested and educated in international legal and political issues but skeptical of public international law.
[Cross-posted at Cato's blog.]
In any event, this year’s conference kicked off with the tenth annual Grotius Lecture, given by Jordan’s ambassador to the United States, Prince Zeid Ra’ad Zeid Al-Hussein. Prince Zeid, educated exclusively in the West, has had a truly distinguished career, and seems to be a voice of enlightenment from a dark part of the world. His remarks, however, on the topic “For Love of Country and International Criminal Law,” skewed both technocratic and rhetorical: He implored the world community to overcome legal obstacles to helping the victims of genocide and war crimes while at the same time recognizing that international courts are not welfare agencies. And of course, somehow, yes somehow, we have to reconcile somewhat outmoded notions of sovereignty with a brave new world of globalized crime. I don’t pretend to give his lofty discourse justice, but in the end it was both intellectual and bland.
What was not bland was the commentary of the good prince’s discussant, David Scheffer of Mayer Brown and Northwestern University Law School. Prof. Scheffer, a high-ranking official in the Albright State Department, first drew a round of applause by announcing that the previous speaker was, without doubt “a future Secretary-General of the United Nations.” (Sounds about right.) Then he crescendoed into an excoriation of pretty much every lawyer in the Bush administration for ignoring international law and making the United States into the red-headed stepchild of the community of nations. Again, it would take more time than it’s worth to fisk his entire approach but suffice it to say the learned professor seems to have a hard time distinguishing law from policy and politics. There is much for which to criticize the Bush administration, but violating international law wouldn’t make my top 100 list.
And that is where the rubber hits the rubber on so many of these issues: Much, if not most, if not all, of international law comes down to diplomacy — the willingness of countries to adhere to their obligations and convince others to do so. As described by Jack Goldsmith and Eric Posner in their brilliant book The Limits of International Law, the behavior of nation-states cannot be predicted, and should not be judged, based on whether they sign this piece of paper or that one. For example, states have interests and there is no international mechanism to force states to comply with treaties that at any given time contravene those interests. Period. (It is often in their interest to comply with their international or binational obligations, of course, because few states want to become, literally, pariahs.) There is so much to say on this, and I will certainly be writing about it in future.
And when it comes to the International Criminal Court (ICC) – the chief bone of contention that many of the attendees to this week’s conference have with the American practice of public international law — what’s important is that U.S. troops treat people much better than their Congolese or Indonesian or Venezuelan counterparts, regardless of which countries submit to the jurisdiction of the ICC. That’s some reality-based law for you.
In sum, an eyebrow-raising start to the conference — and a reminder of the strange position of those of us interested and educated in international legal and political issues but skeptical of public international law.
[Cross-posted at Cato's blog.]
Tuesday, April 8, 2008
McCain the Burkean?
Jonathan Rauch has a fascinating short essay in the May edition of The Atlantic (not yet available online) labeling John McCain as a solid conservative, with his seeming anti-establishmentarian iconoclasm nothing more than another indicia of the G.O.P.’s desertion of its core values.
McCain, you see, is a true follower of Edmund Burke, who was “[t]radition-minded but (contrary to stereotype) far from reactionary,” believing in “in balancing individual rights with social order” and advocating only incremental, thoughtful reform. Modern conservatives (or at least Republicans), on the other hand, disdain “small ball” and want to blow up the government.
It’s a clever analysis, especially the contrast of conservative ideas with conservative temperament (though a candidate whose temper is often said to be an Achilles heel is hardly the best vehicle for making that distinction). Ultimately Rauch is too clever by more than half, however, torturing McCain’s policies until they confess to the writer’s thesis. For example, even if it were true that McCain’s campaign finance work ultimately “produced a reform that was mostly modest in its aims,” the Senator’s attack on free speech is a square peg that cannot be forced into a round Burkean hole. And McCain’s latent support for the extension of the Bush tax cuts can much more easily be attributed to presidential politics than to the notion that after only a few years a policy “becomes well established and woven into everyday life” (and therefore must continue lest societal stability be torn asunder).
“McCain,” Rauch concludes, "is an antirevolutionary, not a counterrevolutionary.” That may be true in some sense — and McCain’s views on many issues are genuinely conservative (just as others are libertarian and yet others herald a trust-busting populism) – but it doesn’t make him Burkean.
[Cross-posted at Cato's blog.]
McCain, you see, is a true follower of Edmund Burke, who was “[t]radition-minded but (contrary to stereotype) far from reactionary,” believing in “in balancing individual rights with social order” and advocating only incremental, thoughtful reform. Modern conservatives (or at least Republicans), on the other hand, disdain “small ball” and want to blow up the government.
It’s a clever analysis, especially the contrast of conservative ideas with conservative temperament (though a candidate whose temper is often said to be an Achilles heel is hardly the best vehicle for making that distinction). Ultimately Rauch is too clever by more than half, however, torturing McCain’s policies until they confess to the writer’s thesis. For example, even if it were true that McCain’s campaign finance work ultimately “produced a reform that was mostly modest in its aims,” the Senator’s attack on free speech is a square peg that cannot be forced into a round Burkean hole. And McCain’s latent support for the extension of the Bush tax cuts can much more easily be attributed to presidential politics than to the notion that after only a few years a policy “becomes well established and woven into everyday life” (and therefore must continue lest societal stability be torn asunder).
“McCain,” Rauch concludes, "is an antirevolutionary, not a counterrevolutionary.” That may be true in some sense — and McCain’s views on many issues are genuinely conservative (just as others are libertarian and yet others herald a trust-busting populism) – but it doesn’t make him Burkean.
[Cross-posted at Cato's blog.]
Monday, April 7, 2008
You've Come a Long Way, Baby
I just finished Steven Teles’s important new book, The Rise of the Conservative Legal Movement. As far as legal nonfiction goes, this is not going to be the bestseller that Jeffrey Toobin’s or Jan Crawford Greenburg’s recent tomes on the Supreme Court have become, let alone Clarence Thomas’s memoirs. In part this is because more people are interested in the intense Kremlinology of the least public branch of government – the nine black-robed margistrates in their marble palace at One First Street — than in the nuts and bolts of the reaction to the left-wing excesses of the legal academy.
But more than that, this worthy study will fly under the radar more than it otherwise should because it is an academic book, written with the research methodology and citation practices of a social scientist investigating a particular phenomenon. It is to Teles’s great credit that he avoided (for the most part) the political science jargon in which such a project could have gotten swallowed, but a journalistic narrative this ain’t. Perhaps to even greater credit, Teles managed to write this book without once resorting to the often confusing and usually superfluous empirical models and regression analyses that are now demanded by practitioners of the “soft” sciences — probably because he already has tenure.
Teles ably takes us through the development of law and economics — the only way to get alternative voices into law schools resistant to anti-New Deal, anti-Warren Court views – and two generations of libertarian/conservative public interest law, as well as cataloguing the wealth of archival materials from what the Clintons considered the heart of the vast right-wing conspiracy, the Federalist Society. Curiously, the only mentions of Cato are in a footnote describing Charles Koch as one of our founders and a brief reference to my boss, Roger Pilon, “fuming in his Washington office when the [Harriet] Miers [Supreme Court] nomination was announced.”
In any event, I do recommend the book to those interested in the succsses, failures, and false starts of a broad movement to save the law — and consequently legal practice and the courts — from the radicalization that beset academia and public interest organizations in the 1960s. Is it better to set up law & econ outposts in hostile institutions (Yale, Harvard) or takeover law schools wholesale (George Mason)? Is it better to have businessmen (Mountain States Legal Foundation) or idealists (Institute for Justice) running a public interest litigation shop? What sorts of cases are best taken up by the likes of IJ so as to have maximum long-term effect on the legal culture? These are the sorts of questions Teles analyzes, providing some interesting answers and leaving, as one expects from an academic tract, room for further research.
[Cross-posted at Cato's blog.]
But more than that, this worthy study will fly under the radar more than it otherwise should because it is an academic book, written with the research methodology and citation practices of a social scientist investigating a particular phenomenon. It is to Teles’s great credit that he avoided (for the most part) the political science jargon in which such a project could have gotten swallowed, but a journalistic narrative this ain’t. Perhaps to even greater credit, Teles managed to write this book without once resorting to the often confusing and usually superfluous empirical models and regression analyses that are now demanded by practitioners of the “soft” sciences — probably because he already has tenure.
Teles ably takes us through the development of law and economics — the only way to get alternative voices into law schools resistant to anti-New Deal, anti-Warren Court views – and two generations of libertarian/conservative public interest law, as well as cataloguing the wealth of archival materials from what the Clintons considered the heart of the vast right-wing conspiracy, the Federalist Society. Curiously, the only mentions of Cato are in a footnote describing Charles Koch as one of our founders and a brief reference to my boss, Roger Pilon, “fuming in his Washington office when the [Harriet] Miers [Supreme Court] nomination was announced.”
In any event, I do recommend the book to those interested in the succsses, failures, and false starts of a broad movement to save the law — and consequently legal practice and the courts — from the radicalization that beset academia and public interest organizations in the 1960s. Is it better to set up law & econ outposts in hostile institutions (Yale, Harvard) or takeover law schools wholesale (George Mason)? Is it better to have businessmen (Mountain States Legal Foundation) or idealists (Institute for Justice) running a public interest litigation shop? What sorts of cases are best taken up by the likes of IJ so as to have maximum long-term effect on the legal culture? These are the sorts of questions Teles analyzes, providing some interesting answers and leaving, as one expects from an academic tract, room for further research.
[Cross-posted at Cato's blog.]
Tuesday, April 1, 2008
April Fools for Skilled Workers
My latest oped is up on National Review Online today. I return to a theme I've often written about over the years, the inanities of U.S. immigration system:
Quite appropriately, today exposes another facet of the foolishness that is U.S. immigration policy. April 1st is the day each fiscal year when employers are allowed to begin filing petitions with the U.S. Citizen and Immigration Services (USCIS, formerly the INS) for highly skilled workers to be given what are known as H-1B visas.
H-1Bs allow employers to hire foreign workers in certain professional occupations. They are good for three years and can be renewed for another three. Though an H-1B cannot lead to a green card — so the foreign professional is tied to one employer and has to leave the country after a maximum of six years of being a productive member of society — it’s still a pretty good deal.The problem is that, even in this apparent economic downturn, there aren’t enough of these visas: Congress limits the number of H-1Bs that can be granted each year, and that magic number has been set at 65,000 for five years now. Before that, and in response to the technology boom of the late ‘90s, Congress temporarily raised the H-1B cap to 195,000. But that expansion expired in 2004, and the cap has been reached earlier and earlier each year since.
As they say, read the whole thing.
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