Monthly Archives: March 2010

Brazil Gears Up to Punish the United States for Violating WTO Judgments

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In a dispute that’s been going on for years now, Brazil is preparing to levy tariffs on 102 different U.S. goods in retaliation for the U.S.’s refusal to comply with a WTO cotton subsidies decision back in 2005.  The WTO permitted Brazil to impose the sanctions, which will amount to about $830 million, in light of the U.S.’s resistance to removing illegal cotton subsidies. 

This whole kerfuffle has certainly made me look stupid, as I wrote a 2006 thesis examining the political reasons why the United States complied with the original ruling.  Although the U.S. did remove certain subsidies, it left others intact.  It’s those leftover subsidies that continue to bother Brazil. 

As I’ve mentioned before, this kind of countermeasure is interesting because it is perhaps the only form of pure “retaliation” sanctioned under international law that gets a stamp of pre-approval.  (The countermeasures rationale does, however, often serve as a post hoc justification for an act that would otherwise violate international law.). 

-Michael

Burger Map Redux

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Following up on an earlier post from Susan, someone made a brand new burger map.  This time the map shows which territories are controlled by which chains.  It would seem that Sonic is indeed America’s Texas’ Drive-Thru.

Also, I would note that my home territory of South Georgia is not really controlled by anyone.  That doesn’t reflect a lack of burger restaurants; it probably reflects that there are so many that no one chain can gain control.

And what’s up with Dairy Queen’s strangehold on the upper Midwest?  Culver’s, with its better ice cream and awesomely good cheese curds, deserves to be the winner up there.

-Michael

[via Gizmodo & lots of others]

Update:  The WSJ Law Blog, in reviewing a recent book, examines the fast food preferences of Supreme Court justices.

Gender Quotas and Female Representation in the U.S. Government

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Yesterday, India’s upper house approved a quota for women lawmakers serving in India’s parliament.  The bill was certainly not without controversy, as it took 14 years to pass and involved a small hissy fit by some of the lawmakers yesterday.  (“[S]even lawmakers were suspended for causing a disturbance Monday by tearing up the bill and throwing it at the chairman.”)  Even so, the bill’s approval is a big step towards greater gender equality in Indian government.

So would something like this be appropriate in the U.S.?  Gender quotas (requirements that a certain number of women stand for election, or a certain number of seats be filled by women) have been around for some time now, but we in the States seem to be content with an incrementalist approach.  That slow-and-steady strategy has produced a legislative body of only about 16% women (in 2007).  Is that really ok with everyone?

Absent a constitutional amendment, quotas would no doubt spawn an enormous number of legal headaches.  (For instance, how could such laws be reconciled with the Equal Protection Clause, as in Bakke, or the First Amendment?)  But putting those aside for a moment, why couldn’t we adopt a quota system?  As it turns out, there are a few reasons:  Americans are pretty averse to quota systems generally, quota systems in other countries are often manipulated or go unenforced, and there is worry that quotas will only perpetuate the stereotype of “female weakness.”  See Nancy Millar, Envisioning a U.S. Government That Isn’t 84% Male, 62 U. Miami L. Rev. 129, 138 (2007-2008).  Tokenism probably is a legitimate concern.  Still, at the end of the day, there would be more female voices in Washington, and that can’t be an entirely bad thing for women.

I realize I’m coming late to the party on this issue, but I would conclude that we probably don’t need to implement the quota system in the U.S. just yet.  Still, it would be interesting to see someone — particularly a male legislator — introduce a bill proposing such a quota.  For whatever reason, the troubling dearth of female representation in Washington has become less of an issue in recent years, perhaps due to “feel-good” spillover effects from Obama’s election.  Proposing a quota would certainly bring the issue back to the fore, and make American votes consider putting someone other than just another old guy into office.

-Michael

The Problem of the “Al Qaeda 7″

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There’s been a lot of attention this week paid to a recent video released by Keep America Safe, a group led by (among others) Liz Cheney.  The video attacks lawyers at the Justice Department who (prior to their time at Justice) volunteered to represent Guantanamo detainees.  The video questions the “loyalties” of the lawyers, who have been branded the “Al Qaeda 7.”

I’ve been encouraged by the number of folks (liberal and conservative) who have come to the defense of these lawyers.   Sadly, however, there are still those who essentially argue that the lawyers are guilty of treason.  Take, for example, the views of Andrew McCarthy, a National Review editor (of course) and former federal prosecutor:

Here is the legal profession’s message for the American people: “We’re just more important than you are.” Members of any other profession or institution would be indicted for coming to the enemy’s aid during wartime. Lawyers not only demand immunity from the ordinary duties of citizenship, but they insist that you admire them, or, at the very least, regard them as above criticism for volunteering their services to those trying to kill Americans.

McCarthy contends that enemy combatants have no right to a lawyer — so pro bono lawyers are essentially going out of their way to provide comfort that is not required by the Constitution.  But even assuming McCarthy’s premise is correct, when did the Constitution become the limit to human compassion?  And why is the aid given by lawyers any different than the “aid” given by chaplains, nurses, cooks, and other “care” providers at Gitmo?

McCarthy tries to distinguish this aid by arguing lawyers “assist[] the enemy in lawsuits against the American people during wartime.”  That necessarily assumes that long-term internment with no defensible legal justification is in the “American people’s” interest.   We need defense of enemy combatants for the same reasons that we need defense of the more common criminal — that defense is the only obvious way to restrain an overly aggressive government.

Even some defenders of the “Al Qaeda 7″ seem to ignore that such a check is necessary in every circumstance.  Stephen Gillers of NYU Law tries to distinguish what he perceives as acceptable forms of lawyer representation (e.g., representing detainees) from unacceptable representation:

I would criticize a law firm that chose to work for South Africa during apartheid and helped the regime stay in power. And I would criticize a lawyer who helped a drug company export to an impoverished nation products banned as unsafe in the United States.

But doesn’t the drug company need a defense, too?  Lacking that defense, how do the facts of its malfeasance get challenged, tested, and then publicized?  As an empirical-ist, I believe that something can only be true when it is tested and challenged (through experimentation or trial).  Without the opposing view (drug company good), we can never test the view held by Gillers (drug company bad).   The same is true in the terrorist context, as noted by one astute commenter at the NY Times:

I want accused terrorists and accused war criminals to have attorneys. How else will I be sure (at least more sure) that the true culprits have been apprehended and the government is not railroading someone while they try to hide the evidence of the truly guilty.

It would be nice if we could assume infallibility in our government, and trust that the right people are in Gitmo.  If we had that, I might agree that there is no requirement for lawyers.   Lacking that infallibility, we need the crucible of a counsel-based system.

-Michael

Update: The always awesome Orin Kerr agrees.

An Apology

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Yikes!  It appears I’ve been persona non grata around here lately.  It turns out that writing a good blog and holding down a real job is really hard work.  I should have heeded the warning of another legal blogger, Mark Herrmann (formerly of the Drug and Device Law Blog):

If you’re thinking of launching a legal blog, have your eyes open. Once you launch a blog, you will face the relentless, mind-numbing, never-ending task of finding worthwhile material to publish. That burden begins on the day of your first post, and ends only the day you call it quits.

So this is my public apology and my assurance that I will write more — and it won’t suck!

Or you could just go read Susan’s new blog.  Whatever.

-Michael

Introducing the Virginia Business Law Blog

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As Michael put it to me earlier this week, I have turned into a blogger of limited fidelity. (Well, that’s not quite how he put it, but I am sure you get the general idea.)

Sadly, it is true. I am now posting on my firm’s blog, Virginia Business Law Blog, and I feel obligated to direct a good chunk of my blogging energy there. So expect the View from LL2 to become a little less regular in its updates.

LL2 shouldn’t fear, however — I may be posting a bit less, but this place will still be getting my attention. I am fairly certain that the firm has absolutely zero interest in providing a forum for my ramblings on international law, science fiction, and video games, so at least I will have no choice but to post my thoughts on those topics up here. (Then again… Mythic Entertainment is based out of Fairfax. And Bethesda Softworks is only just across the border in Maryland. So I suppose there’s always an off-chance I could get lucky and that could become relevant…)

Anyway, although cross-posting is lame (and, well, technically, I suppose I don’t even have copyright to the posts I write there), I am not above attempting to direct traffic to my work over there. So if you have any interest in, well, Virginia business law (or at least my somewhat uneducated attempts to write about it), you can read my posts over there:

  1. Virginia’s “Amazon Tax” Fails to Survive the House
  2. It Is Not Contributory Negligence As A Matter Of Law To Merely Bite Into Food Served Hot By A Restaurant
  3. The Difference Between .Org and .Com
  4. When It Comes to Million Dollar Verdicts and Settlements In Virginia, Bodily Injury Is King

-Susan

“Untreated Chronic Pain Violates International Law”

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When I saw the above headline, it struck me immediately as a possible contender for the Most Absurd Claim To A Customary Norm of International Law Yet. (Even one of my long time favorites, the ATS case involving the use of under-aged camel jockeys, had a better basis.) Although there is a very good case to be made that, under international law, states have a duty to avoid causing chronic pain in their citizens, there is hardly one whit of support for the idea that they are obliged to treat it.

It turns out the story is based upon a Human Rights Watch Report [PDF] that presents access to narcotics and relief from chronic pain as a human right enshrined under international law. Somewhat surprisingly, HRW starts not with a CIL argument, but claims that that the right to treatment of chronic pain is a treaty based obligation. For this they cite a single paragraph of the preamble of the Single Convention on Narcotic Drugs of 1961, which provides that the signatory states are

Concerned with the health and welfare of mankind, [and]

Recogniz[e] that the medical use of narcotic drugs continues to be indispensable for the relief of pain and suffering and that adequate provision must be made to ensure the availability of narcotic drugs for such purposes…

Unfortunately for the HRW report, however, the Convention was clearly not intended to address the availability of pain medication, but rather was entered into by states in an effort to curb cross-border drug trafficking. “Pain” or “suffering” is not mentioned again in the treaty’s text. Even giving it the most generous interpretation, all this language signifies is that the object and purpose of the treaty is to reduce world drug trafficking while not also prohibiting the legitimate medical use of narcotics.

The HRW report also undermines any claims that the Single Convention on Narcotic Drugs of 1961 is the basis of a customary norm that has developed since the treaty entered into force. According to the HRW report, “approximately 80 percent of the world population has either no or insufficient access to treatment for moderate to severe pain.” Given the total absence of any opinio juris on the subject, a mere 20% compliance rate does not a norm make.

I will not even address the report’s batpoop crazy claim that the well established and more-or-less globally accepted norm against cruel, inhumane, and degrading treatment applies to chronic pain, because “[a]s part of this positive obligation [against CITD], states have to take steps to protect people from unnecessary pain related to a health condition.” Seriously, HRW?

I suppose I could accept that the right to treatment of chronic pain qualifies as an aspirational norm, albeit a pretty weak one. The World Health Organization does list codeine and morphine on its Model List of Essential Medicines, a list signifying those drugs which states should endeavor to make available to all of their citizens that need them. But that’s about the most I can say for the study’s claims.

Of course, all of this is definitely not to suggest that the report does not in fact identify a genuine problem. As HRW notes, “Burkina Faso estimates that 8 people need morphine per year. Gabon estimates 14. The Gambia, 31.” Hard to argue with a need for education and reform there. But by cloaking every worthy policy suggestion in a nonsensical guise of “international law,” HRW is actually undermining the rule of international law on the global plane.

-Susan

Samantar v. Yousuf…

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… was anticlimactic. Although we succeeded in running into quite a few GW Law people, we did not succeed in getting seated. (I may have succeeded in getting frostbite, however.)

Poor Michael was #52 in line, and they only let a grand total of 50 in. So he has the distinction of being the second loser. Although the first loser had it worst — it was the second time in which he had been the first person to not get seated at a hearing. I will accept some responsibility for us missing the hearing, as I had the bright idea of changing our meet up time from 6am to 7am. Poor form, I know.

The guards stationed in front of the steps informed us that it had been less crowded for friggin’ McDonald than it was for Samantar, which is ridiculous, because it was rainy and cold and Samantar does not involve guns.

Also I still maintain that Michael lost his spot to Harold Koh, who came waltzing across the plaza with his entourage about five minutes before the oral argument started. Excuse me, sir, I do not believe that the U.S. is a party to this case, so you can just go wait in line with the rest of us, thank you very much.

Anyway, as a very poor consolation prize, we were at least in the first group for the silly 3-5 minute viewing exercise they have for tourists. Didn’t really see or hear much, though. The transcripts are up for the case now, but I think at this point I will have to put off reading it until tomorrow. Will probably have more thoughts then.

But I swear, if I ever find out that that class of 8-10 year olds that was let in got seated and we didn’t, I will lose all faith in American democracy.

-Susan

Samantar v. Yousuf, Last Minute Thoughts

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There are two questions in Samantar v. Yousuf that I suspect almost certainly will not get addressed in the morning, at least not in any substantive way, but I’ll post them here now in the hope that I am wrong and I’ll be able to talk about them in greater length tomorrow. These would be:

(1) The statehood of Somalia v. Somaliland, and the ability of the former to adopt the acts of officials that took place in a territory it no longer has any control over, outside of legal fiction. Obviously even if they do bother with the question, the Court will end up punting it to the political branches and making their recognition the be-all end-all, but I would still love to see statehood get addressed in one of the Justice’s opinions. Even better would be for the Court to address the factual issues regarding Somalia or Somaliland’s existence or non-existence, but I won’t hold out hope for that.

(2) The Constitutional question of FSIA’s purported grant of personal jurisdiction over state officials via service of process. If petitioner succeeds on his arguments, there could be a problem with FSIA’s provision for service of process over foreign states — namely, service of process (done anywhere, not just tag-service) is considered sufficient for obtaining personal jurisdiction over a state. But if officials = state for purposes of the FSIA, allowing mere service to create personal jurisdiction for foreign official defendants would create a Constitutional due process issue.

I mostly want #2 to be addressed because I would love to see the Supreme Court finally address the giant gaping inconsistency in U.S. law that is our personal jurisdiction jurisprudence. Since personal jurisdiction is a question of Fifth (or Fourteenth) Amendment due process, if petitioner prevails, we could, at least theoretically, wind up with some interesting issues of the “Constitutional rights” of foreign states that have never had contact with the U.S.

At any rate, I’m sure there will be some amusement to be had tomorrow, out of the slight irony in the case that the side most heavily relying on the support of international law and argues that the court should find it has expansive powers to decide the questions involved is the side hoping that the Court does not find jurisdiction to hear an ATS/TVPA claim, while the side that is calling for a strict adherence to the separation of powers and arguing that any judicial interference would result in Dire Consequences is the side hoping that the court does hear the underlying claim. Strange bedfellows, and all that.

For what it’s worth, I’m rooting for the respondent. Jurisdiction should be found here — to do otherwise would lead to absurd results. That a given defendant claims to have been some sort of official office holder for some sort of government that may have once existed is not sufficient to give him a blanket claim to immunity in U.S. courts. Rather than making this a jurisdictional matter, this case should be heard on a substantive level, with the act of state doctrine helping to provide the proper rules of decision.

Plus, finally, the fact Samantar cherry picks between the multitude of “Somali” governments to find a couple that support his claim is hilarious. If you’re trying to claim sovereign immunity, referring to “the transitional governments,” plural, of your supposed State does not much help your case. If any warlord in Somalia with enough followers can claim to be the sovereign, why on earth should the FSIA or international law believe that Samantar managed to siphon off some immunity for himself?

-Susan