Monthly Archives: September 2010

Gary Bolton is MIA, but the GT200 is Still in Action

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Back in June, the London Police raided Global Technical, Ltd. — the maker of the GT200 fake bomb detector — as well as two other companies with similar product lines. Since then, however, there have been no further updates either on the investigation or on the activity of Gary Bolton, the officer of Global Technical.

Unfortunately, while Mr. Bolton has gone quiet, the GT200 is still out there on the market. Despite being warned by the UK about the fraudulent bomb detectors, Mexican authorities are still buying the devices, and still believe in their magical narcotic and drug detection abilities.

A friend of mine helped me with translating a couple articles that discuss the GT200, and sadly, neither of them are even slightly critical or suspicious about the GT200′s alleged abilities.

See here:

Dozens of Victorenses who were visiting GranD Campestre (the local mall) were surprised not by the presence of a large group of soldiers, but by the maneuvers they were doing.

Some curious people asked what it was about.

It turns out the military was putting to use in that area a modern detecting device.

It’s the GT200, which, with a long antenna and an inserted card, located cocaine, weapons, gunpowder, marijuana just by holding it near the suspicious vehicle.

And also here, describing how Querétaro’s government has completely drunk the GT200 Kool-Aid:

The Secretary of Citizen Safety in the state of Querétaro is acquiring armored vehicles, vehicles with video surveillance equipment, and the GT200, which, he says “is an instrument used by other national organizations, which allows us to detect at a distance possible explosives, corpses, weaponry, ammunition; it’s sophisticated and it works at great distances.”

Sigh.

-Susan

America: The Only Nation That Requires Its Soldiers to Lie

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In light of today’s Senate vote, which failed to overcome the Republican filibuster to prevent a chance to consider a bill that would provide the President and Department of Defense with the option of maybe ending Don’t Ask Don’t Tell, I present the following lists without further comment.

Countries That Allow Gays to Serve in the Military
Albania
Argentina
Australia
Austria
Belgium
Canada
Colombia
Czech Republic
Denmark
Estonia
Finland
France
Germany
Ireland
Israel
Italy
Lithuania
Luxembourg
Malta
The Netherlands
New Zealand
Norway
Peru
Philippines
Poland
Romania
Russia
Slovenia
South Africa
Spain
Sweden
Switzerland
Taiwan
United Kingdom
Uruguay

Countries That Have Allowed Gays To Serve in the Military and Ended Up Regretting It
None

Countries That Don’t Allow Gays To Serve in the Military
Cuba
China
Egypt
Greece
Iran
Jamaica
North Korea
Pakistan
Saudi Arabia
Serbia
Singapore
South Korea
Syria
Turkey
Venezuela
Yemen

Countries That Allow Gays In The Military, So Long As They Obsessively Disguise the Truth About Their Lives
United States

-Susan

Why You Should Be Careful in Selling “Nothing” on eBay

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An eBay seller has posted an unusual item on eBay, apparently in an attempt to protest excessive art prices (particularly for the works of Damien Hirst).  The item . . . is nothing.

As of right now, 5 different bidders have bid up the price to $11.50 for the “nothing.”  If I were the seller, I wouldn’t expect to get paid.  As any first year law student will tell you, a promise (like a promise to pay) is generally unenforceable if it lacks consideration.  The seller’s creative characterization notwithstanding, I’m not sure “nothing” is adequate consideration.

Also, this sale raises some definitional questions.  Can I expect the seller to send me a box of nothing?  If they don’t, did the seller breach?  If they send me something, is that a breach of the promise to send nothing?

Given that eBay has guaranteed this sale through its Buyer Protection program, I’m betting they’ll put the kibosh on this pretty quickly.

-Michael

Corporate Participation in International Law: Some Historical Examples

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It has probably become apparent by now that the idea that corporations are noncognizable under international law is one that irritates me to no end. There is, obviously, a great deal of unsettled law out there regarding exactly how liability for violations of international law accrues to non-state entities. But corporations have played a vital role in the development of international law for just about as long as “international law” can be said to have existed, and there is no historical basis for the idea that corporations cannot, as a matter of law, be a participant in or violator of international law.

At some point I will write some more on the subject, but for now, I want to at least throw some links up that give some historical examples. The Transnational Corporation in History: Lessons for Today? is a highly recommended starting point. It gives a good overview of how the legal character of corporations has developed, and how the private/public distinction has always been unclear, oftentimes deliberately so:

Corporations and states are commonly represented as having an oppositional relationship. Corporations represent the private; states represent the public. Corporations represent the efficient, the natural, and the spontaneous; states represent the inefficient and the contrived. The ascendancy of the corporation means the decline of the state. But these commonly held views are ahistorical and tend to ignore the complex relationships between states and corporations. Modern incorporation is simply a matter of fulfilling formal registration requirements. There are few surviving remnants of the old notion that incorporation is a privilege conferred by the state. This Article aims to redress the balance somewhat by telling aspects of the history of the corporate form that have been obscured by modern forms of incorporation and modern conceptions of the public and the private. In a modest way this Article intends to show just how recent the public/private paradigm actually is and how selectively such concepts have been applied.

…

Compared with the French trading companies generally, the English and Dutch companies were considered to be much more independent and able to operate at arms length from their respective governments. The agents of the Dutch and English companies were regarded as employees and servants of groups of merchants, rather than the subordinates of their governments. The British considered themselves traders first and territorial rulers second. Of course, the proper mix of the East India Company’s functions was contested, tended to be in the eye of the beholder, and changed dramatically over the period of the company’s existence.

And how questions over the status of corporation under international law are not new:

The British East India Company certainly took advantage of its ambiguous status—successfully emphasizing its sovereign powers when it wished to avoid contractual debts to local rulers, protesting to the Royal Navy that its status would be reduced in the eyes of the locals if it had to acknowledge the superiority of the British naval fleet, and all the time relying for its trading advantage on the might of British naval power and on the calculated and limited use of force. It charged merchants fees for safe passage and was able to do so as an exercise of its monopoly and sovereign powers. It was graphically and finally reminded of its subordinate status, however, when Queen Victoria took over from the company in 1858. The company had survived in various guises and with mixed public and private motives for 250 years.

But throughout the 18th and 19th centuries, corporations were assumed to be competent at conducting activities that, today, we generally believe only a true sovereign could do. Corporations could start wars, engage in diplomacy, claim new territories, and enter into international agreements. Treaties between corporations and state or state-like entities flourished during this time period, i.e., the treaty between the Dutch East India Company and the Ali Raja, the Treaty of Giyanti, and the Treaty of Allahabad. Some treaties, such as the treaty between the British East India Company and nascent Singapore, lead to the creation of what would eventually become modern day nation states.

Also worth checking out is this 1769 letter, An Enquiry Into the Rights of the East India Company of Making War and Peace and of Possessing Their Territorial Acquisitions Without the Participation or Inspection of the British Government, which gives a good example of how, even then, people were confused about how sovereign a corporation could be, when there was no “official” grant of sovereignty.

I am not trying to say that the role of corporations in international law is crystal clear — it is obviously not. But the idea that corporations are unrecognizable under international law, and that states can use the corporate form to immunize the profits its citizens have made from engaging in violations of international law, is an extremely modern one, and in its own way is a very radical idea.

-Susan

Ramblings on Corporate Liability Under the Alien Tort Statute

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Susan is preparing for trial next week, so she hasn’t been able to post as much on the Second Circuit’s recent decision in Kiobel v. Royal Dutch Petroleum.  I recently had a chance to get her thoughts on the decision and thought I’d share some of that discussion.  (My questions are in bold.)

What would you say to those that agree with Kiobel – to those that say there should not be any corporate liability under international law?

None?  Ever?  What if a corporation takes over a state, de facto, although none of their people are nominally holding the major government positions?  What if Nauru still had phosphate and essentially sold all major state operations off to a mining company?

An interesting question.

I just don’t see the whole bright line supposedly created by being a “corporation.” If individuals can integrate with a state and violate international law, or if instrumentalities of states or international organizations can violate international law, why the hell can’t a corporation?  I mean, branches of states have been held to violate international law, but responsibility always cuts back to the sovereign. My only point is the idea that a non-individual can be in violation of international law is not as far out crazy as it’s being made out to be. Heck, even the East India Company had to abide by international law. Well. Not that it did.

Really?  Was the corporate entity ever held responsible, or just the people running it?

Well, the problem with the early corporate cases is that it’s all sorta piratey stuff…. which is always kinda its own brand of international law.  But come on, corporations basically invented law of the sea. Why do you think Grotius wrote his treatise on the law of capture? ‘Cause a corporation paid him to. Seriously. He wrote Mare Liberum as an advocacy piece for the Dutch East India Co.

So . . . why isn’t it enough to impose individual liability given that corporations are legal fictions anyway?

Well, that’s kinda the point. Corporations are made up doohickeys, they don’t actually exist. But the law of nations, old school international law, basically understood them to be domestic constructs, and they sure as hell didn’t let states or entities weasel out of violations of international law because some state told them “oh hey you’re incorporated.” (1) Because enterprise liability is a recognized concept under international law, (2) those individuals are liable themselves but they are merely agents of a legal construct, (3) and corporations are created to funnel their profits to a diversified source. So [under the opposing view], a state entity can create a complicated legal structure that allows people to invest and profit in violations of international law, and they can recover their investment because they were deliberately and carefully shielded from actual knowledge.

Can’t you create some type of willful blindness liability? That an individual who invests in a corporate structure with full knowledge that it is intended to shield the individual from knowledge of violations of international law has a sufficiently culpable state of mind to impose individual liability?

But see, international law has never ever gone there before. Willful blindness liability is a totally new concept. Why not just use corporations? Corporations have never been given unique immunity status under international law until recent times. Also come on. Most stocks are owned by other corporations. And also states will NEVER allow their citizens to be found guilty of genocide because they happened to have the wrong stock picked out by their adviser for their 401K.

But you’re taking money from stockholders because the corporate entity committed an independent act.

So what? They invested their money in something that broke the law. This is not an uncommon occurrence. Companies are fined for breaking the law allllll the time. Including international law, albeit not customary international law. Plus: ATS cases can be brought under treaties. Some treaties do regulate corporate behavior. The 2nd Circuit opinion would, unintentionally I think, ’cause problems there too.

Interesting.

I guess my ultimate point is, a unilateral domestic act — the creation of corporations — cannot create a blanket financial immunity for its citizens/self for violations of international law. If corporations didn’t exist — say, Shell was just a business, all in one dude’s name — all that money would be recoverable. So why can England/Holland immunize that money by taking a slip of paper and writing “Articles of Incorporation” on it?

-Michael

*I also noted an issue that has since been raised by Kevin Jon Heller over at Opinio Juris: it seems like corporate acts can still violate international law, it’s just that there is no jurisdiction to impose liability for those violations.  Susan doesn’t think that distinction has any relevance, but I think it remains to be seen whether that is an important distinction.

Corporate Human Rights Abuses For Fun and Profit

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In light of the Second Circuit’s decision in Kiobel v. Royal Dutch Petroleum, here is a business plan for all corporate entities that would like to maximize profits for their shareholders. Although theoretically any corporation could implement this business plan, it is recommended primarily for companies that have less invested in their branding, or for companies that are better able to insulate their parent companies from any negative public relations fall outs. For instance, producers of fungible goods like diamonds, oil, and bananas should pay particularly close attention to the following.

Step 1: Create a Subsidiary organized under the laws of Randomcountryastan, a third world nation with a weak and relatively ineffectual government, and which is not particularly concerned about human rights abuses.

Step 2: With the help of Randomcountryastan’s government, enslave a couple thousand members of the nation’s undercaste. Make sure that children are not exempt from this enslavement. If any of your new “employees” resist this arrangement, beat them up, and maybe kill a few for good measure.

Step 3: Make sure any officers of Subsidiary are immune from U.S. jurisdiction. This is not actually all that important for the corporation’s purposes, but it will probably be easier to find people to agree to be officers if the U.S. has no personal jurisdiction over them.

Step 4: Use your slave labor to make extra cheap widgets. As a bonus measure, obtain the right to mine Randomcountryastan’s natural resources at sub-market rates by bribing the appropriate government officials. Use those resources to make your widgets.

Step 5: Sell the widgets to Parent company at an extremely attractive price. Parent can then retail them to consumers outside of Randomcountryastan, with a large mark up.

Step 6: Hire really good lawyers to structure these transactions, as well as Subsidiary’s incorporation, so as to make sure there is no paper trail connecting any U.S. officer/director of Parent to personal knowledge of Subsidiary’s use of slavery to make widgets. Also make sure that Parent and Subsidiary observe all corporate formalities.

Step 7: Profit!

-Susan

Second Circuit: No Corporate Liability Under the Alien Tort Statute

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Although Susan is the Alien Tort Statute expert around here, I thought I would flag one important decision handed down by the Second Circuit today, Kiobel v. Royal Dutch Petroleum.   In an exhaustive 138 pages of discussion that meanders through history, treaties, and the works of publicists, the court concludes that corporate defendants cannot be held liable for violations of customary international law under the ATS.   And the opinion does not hold back, saying:

  • “There is no historical evidence of an existing or even nascent norm of customary international law imposing liability on corporations for violations of human rights.”
  • “In declining to impose corporate liability under international law in the case of the most nefarious corporate enterprise known to the civilized world, while prosecuting the men who led I.G. Farben, the military tribunals established under Control Council Law No. 10 [at Nuremburg] expressly defined liability under the law of nations as liability that could not be divorced from individual moral responsibility. It is thus clear that, at the time of the Nuremberg trials, corporate liability was not recognized as a ‘specific, universal, and obligatory’norm of customary international law.”
  • “In sum, modern international tribunals make it abundantly clear that, since Nuremberg, the concept of corporate liability for violations of customary international law has not even begun to ‘ripen[ ]‘ into a universally accepted norm of international law.”
  • “We conclude, therefore, that the relatively few international treaties that impose particular obligations on corporations do not establish corporate liability as a ‘specific, universal, and obligatory’ norm of customary international law. Id. at 732 (internal quotation marks omitted). Although those treaties suggest a trend towards imposing corporate liability in some special contexts, no trend is detectable outside such narrow applications in specialized treaties, and there is nothing to demonstrate that corporate liability has yet been recognized as a norm of the customary international law of human rights.”
  • “Together, those authorities demonstrate that imposing liability on corporations for violations of customary international law has not attained a discernible, much less universal, acceptance among nations of the world in their relations inter se.”
The majority opinion also takes a direct shot (in several pages right at the beginning of the opinion, and several more later) at Judge Leval’s concurrence, which finds corporate liability under the ATS is a possibility:
Lastly, we wish to note that we do not take lightly the passion with which Judge Leval disagrees with our holding. We are keenly aware that he calls our reasoning “illogical” on nine separate occasions. See Concurring Op. 4, 5, 9, 30, 31 n.18, 36, 28, 46, 68, 69. Nor is it lost on us that he calls our conclusions “strange,” id. at 3, 57, 59,23 or that he repeatedly criticizes our analysis as “internally inconsistent,” id. at 6, 7, 46.24 We must, however, leave it to the reader to decide whether any of Judge Leval’s charges, individually or in combination, are a fair reading of our opinion. In so doing we are confident that if our effort is misguided, higher judicial authority is available to tell us so.

Judge Leval doesn’t hold back either:

The majority opinion deals a substantial blow to international law and its undertaking to protect fundamental human rights. According to the rule my colleagues have created, one who earns profits by commercial exploitation of abuse of fundamental human rights can successfully shield those profits from victims’ claims for compensation simply by taking the precaution of conducting the heinous operation in the corporate form. Without any support in either the precedents or the scholarship of international law, the majority take the position that corporations, and other juridical entities, are not subject to international law, and for that reason such violators of fundamental human rights are free to retain any profits so earned without liability to their victims.

This opinion, much like an an earlier denial of rehearing en banc by the D.C. Circuit (in Al-Bihani), demonstrates that international law seems to piss judges off in a way I don’t often see in other contexts.   Wonder why?

-Michael

Update: Over at Opinio Juris, the experts seem to think this was the right decision.  Somewhere Ralph Steinhardt is quietly weeping.

…But He Doesn’t Take the Stairs Anymore

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The New York Times (via How Appealing) has the story of 103-year-old senior district court judge who’s still hearing cases out in Kansas:

Judge Wesley E. Brown’s mere presence in his courtroom is seen as something of a daily miracle. His diminished frame is nearly lost behind the bench. A tube under his nose feeds him oxygen during hearings. And he warns lawyers preparing for lengthy court battles that he may not live to see the cases to completion, adding the old saying, “At this age, I’m not even buying green bananas.”

. . .

Nevertheless, Judge Brown has begun making a few concessions to his age. He still hears a full load of criminal cases, but now he takes fewer civil cases, and he no longer handles any that may result in lengthy trials. He spreads his hearings throughout the week to keep his strength up, and he no longer takes the stairs to his fourth-floor chambers.

According to Wikipedia, Judge Brown took the bench in 1962.  At that time, anti-miscegenation statutes were still constitutional, married people were not constitutionally entitled to use contraception, hotels could discriminate on the basis of race,  the famous Miranda rights had not yet been developed, dropping the f-bomb in public might still get you an obscenity conviction, mandated school prayer was a-ok,  and the divisive Roe v. Wade decision was still more than ten years away.  Suffice it to say that Judge Brown is applying much different law than he was when he started.

-Michael

Do We Need More Federal Specialty Courts?

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Federal judges are pretty smart people.  Folks appointed to the federal bench are often respected practitioners, judges at the state level, or noted academic experts.  But even the best federal judges are not experts in everything — they’re generalists.  As a result, district and appellate judges are forced to handle a number of cases that require a degree of specialized knowledge in a field, even though they’re not specialists in the particular area at issue.

The adversarial system is supposed to help judges cope with this reality.  In theory, the parties’ filings and arguments should “educate” a judge on any issue they have not dealt with before.  In actuality, parties and their lawyers are often more hopelessly lost than the judge.  As a result, judges are forced to teach themselves any new law they face.

For some especially complex areas of law, Congress has established specialty courts.  Thus, we have bankruptcy courts, the Tax Court, the Court of Appeals for the Armed Forces, the Court of Appeals for the Federal Circuit, the Court of International Trade, the Court of Veterans Appeals, and the Court of Federal Claims.  States have their own specialty courts, like Delaware’s Court of Chancery.  These courts ensure that experts can produce a consistent (and correct) body of law in the particular field of the court.

Maybe it’s time to create a few more specialty courts.  For example, habeas petitions from prisoners have bogged down district courts so much that some experts are calling for their elimination.  A special habeas court would remove this burden from the district courts, while potentially producing faster opinions from the efficiency gains of special expertise.  And habeas is not the only area that could use a specialty court; here are a few more possible courts:

  • U.S. Court of Employment Discrimination: Handling Title VII and other employment-related claims
  • U.S. Court for Civil Rights: Handling Section 1983 claims, prisoner Eighth Amendment suits, etc.
  • U.S. Securities Court: Handling claims arising from the Securities and Exchange Acts.
  • U.S. Court for Crazy Litigants: Handling clearly frivolous claims.

Of course, one could say that all this is unnecessary because handling difficult issues is what being a judge is all about.  Judges in the federal system also have access to an array of legal research tools, can consult other judges for advice, and employ a corps of law clerks.  But as the legal field becomes more and more specialized, judges might benefit from a little specialization as well.

-Michael

Christine O’Donnell: Pros and Cons

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Christine O’Donnell is the Republican candidate in Delaware’s Senate race. There are a lot of strong feelings out there about O’Donnell’s candidacy, so I thought I would weigh in with an objective analysis of the pros and cons regarding her suitability for being elected Senator.

Pros:

  • Political platform includes the belief that “[v]oting to spend money we don’t have has become the appealing option for too many politicians. The men and women of America know this is not sustainable.”

Cons:

  • Political platform also includes the belief that “every individual has a unique, unrepeatable preciousness, and that our fiscal policy should be one that encourages and empowers the individual creativity.”
  • Has never articulated any concrete fiscal policy positions, or advocated a specific plan of action she would support in order to reform the federal government’s spending or taxing.
  • Campaigned on MTV to end the epidemic of masturbation that is destroying our country.
  • Is a young earth creationist that advocates teaching creationism rather than Darwinism in public schools.
  • First became involved in politics while working for an anti-pornography crusade.
  • Has a lien filed against her by the IRS for unpaid income taxes.
  • Uses campaign funds to pay her rent and personal expenses.
  • Believes opponents are hiding in her bushes at night to spy on her.
  • Lied about her home being foreclosed on.
  • Lied about receiving a college degree.
  • Lied in court filings about being prevented from attending Princeton for a Master’s degree, when she did not even have an undergraduate degree at the time.
  • Thinks that lying is always wrong, even when it is to Nazis for the purpose of saving Jews you have hidden in your house.
  • Supports the “ex-gay” movement.
  • Uses phrases like “get your man-pants on.”
  • Has failed to pay past campaign debts, while continuing to divert all campaign funds towards spending on the current campaign.
  • Has no savings, no investments, owns no property, and reported receiving only $5,800 in income in the last year.

But she believes in fiscal responsibility, even if she doesn’t practice it, so that makes her an ideal politician, right? Right?

I have mixed feelings about the Tea Party, but one thing that always kept me hopeful it would amount to something useful was the general resistance among the Tea Party infrastructure, such as it is, to get drawn into the ‘culture wars.’ But despite all their claims about a fiscal policy focus, they still wind up choosing candidates like O’Donnell — who are above all social conservatives first, and fiscal conservatives only incidentally. Of course, in O’Donnell’s world, it’s the same thing:

“As I was in Washington, D.C., advocating for the social issues, I realized that they’re all connected, that your approach to protecting the human dignity and protecting the individual definitely reflects in your fiscal policy, and that’s why I’m a fiscal conservative.”

-Susan