How Exactly Did The U.S. Come to Be In Charge of the Port-au-Prince Airport, Anyway?

Hundreds of media articles covering the ongoing events in Haiti report that the U.S. has “taken over”or is “running” the airport in Port-au-Prince. This has, predictably, already caused conflict with other States regarding the coordination of relief efforts, with France in particular criticizing U.S. administration of the airport.

What I cannot find, however, is any explanation of what the nature of the U.S. authority over the airport is and how it came to be. Did the Haitian government — which has taken no official action that I am aware of since the earthquake happened (and weren’t making that many before the earthquake either, for that matter) — come together long enough to authorize a U.S. administration of the airport? Is the U.S. simply in charge of the flight schedules, or is it literally in charge of the entire airport area?

I am beginning to suspect that the United States simply showed up first and announced it was in charge of the airport, and then because no one objected to this claim too loudly, it became a self-fulfilling declaration.

This article from the American Forces Press Service seems to suggest that is exactly what happened:

In his update, Elton underscored the speed with which Air Force personnel began operations after landing at the badly damaged airport around 7 p.m. on Jan. 13.

“Within 28 minutes of landing our first aircraft, we had special tactics combat control teams controlling the airspace around the airfield, and sequencing in the arriving aircraft that night,” he said.

That the United States simply seized control over the airport is not necessarily a bad thing, at all — someone needed to take point on the situation, and because the U.S. is the closest major power, it is the obvious choice — but it also raises a lot of thorny jurisdictional questions.

A quote from this article seems to suggest a possible legal source of authority, however:

Tucked between Port-au-Prince airport and the giant UN compound is a one-storey building with no security or reliable communications and only two small suites of grubby offices.

Before the earthquake hit, this was the headquarters of Haiti’s judicial police. It is now the seat of the Haitian Government and the office of President Préval, but it is seldom occupied, has no reception staff and people peer through the windows.

Hillary Clinton, the US Secretary of State, insisted yesterday that [President] Préval remained in full charge of both Haiti and the aid effort that is still failing to reach those who need it most. Mr Préval himself declares that he is in charge of events and the UN says that it directs rescue teams and distributes aid according to information received from his administration.

The idea that President Préval is currently exercising any significant government control right now is not credible. However, from a legal standpoint, it is in the best interest of the U.S. and the UN insist that yes, Préval is in charge, and yes, he has authorized various foreign and international entities to exercise jurisdiction over parts of Haiti. It clears up a lot of very messy legal problems that would otherwise exist, even if, in reality, the authority for the intervention comes ex post from a man sitting in a shack who has absolutely zero real power to exercise any control over Haiti.

-Susan

Update: As soon as I put up this post, I stumbled across a better explanation how the U.S. presence is being justified under international law. Note that the following was issued just this weekend — a full four days after the U.S. took control over the airport.

A joint statement Saturday from the Haitian president and U.S. Secretary of State Hillary Clinton referred to an expanded U.S. security role.

“President Préval, on behalf of the Government and people of Haiti, welcomes as essential the efforts in Haiti by the government and people of the United States to support the immediate recovery, stability and long-term rebuilding of Haiti and requests the United States to assist as needed in augmenting security in support of the government and people of Haiti and the United Nations, international partners and organizations on the ground,” the document reads.

How much do you want to bet that the statement in question was a legal formality, drafted by some State Department lawyers and handed over for Préval to rubber stamp? Shoot, I’d probably even take a bet that Préval never actually read the document.

The Automation and Outsourcing of the American Lawyer

Most industries in the U.S. have, at some point or another, faced some form of outsourcing or automation, resulting in a reduced need for human workers. Because of the nature of legal work, however, in the past attorneys have largely been immune to these forces, and their jobs have been secure from computers and foreigners alike.

This is all changing. The use of computerized discovery and the outsourcing of legal tasks to foreign lawyers are both rapidly becoming a viable option for a broad range of services which were, formerly, only conducted by U.S.-barred attorneys. It remains an open question at this point which will have the bigger impact on the U.S. legal market: outsourcing or automation?

I was about to self-mockingly title this post “The Scylla and Charybdis of the Contract Attorney,” because I am convinced that “Scylla and Charybdis” may possibly be the most aggravating and overused cliche out there, except I found the phrase was too annoying to even use ironically. Still, the phrase may have been apt here — it is hard to think of any niche left for U.S. contract attorneys to inhabit that could not eventually either be computerized or done cheaper abroad.

A recent study looked at the efficacy of computerized document review as compared with the traditional method of examining voluminous stacks of paper for responsiveness: lots and lots of attorney man-hours spent on doc review. The article, Document Categorization in Legal Electronic Discovery:
Computer Classification vs. Manual Review
[PDF], involved comparing two teams of human re-reviewers and two e-discovery services. (With a summary on the findings about computer assisted doc review here.)

The study’s conclusion?

On every measure, the performance of the two computer systems was at least as accurate (measured against the original review) as that of a human re-review.

It’s obvious why development of reliable e-discovery is such an intriguing possibility — in major cases, the costs of doc review alone can be astronomical, so any computer program that can cut down on the number of attorneys required would result in major savings.

The documents used in the study were collected in response to a “Second Request” concerning Verizon’s acquisition of MCI. The documents were collected from 83 employees in 10 US states. Together they consisted of 1.3 terabytes of electronic files in the form of 2,319,346 documents. The collection consisted of about 1.5 million email messages, 300,000 loose files, and 600,000 scanned documents. After eliminating duplicates, 1,600,047 items were submitted for review. The attorneys spent about four months, seven days a week, and 16 hours per day on the review at a total cost of $13,598,872.61 or about $8.50 per document. After review, a total of 176,440 items were produced to the Justice Department.

I was mostly struck, however, by just how inconsistent human reviewers are when it comes to doc review:

The level of agreement among human reviewers is not strikingly high.The two re-review teams agreed with the original review on about 76% and 72% of the documents. They agreed with one another on about 70% of the documents with corresponding kappa values in the low to fair range. Although low, these levels are realistic.

The computer methods had comparable results, finding agreement with the original review’s assessment 83.2% of the time for one system and 83.6% for the other.

FRCP Rule 26(g) requires only that discovery processes be reasonable and not unduly burdensome. Obviously what exactly qualifies as “reasonable” for discovery responses is a less-than-precise standard, but presumably the way we have been doing it for the past few decades qualifies. By that standard, then, e-discovery would seem to qualify as well.

Although we are still a long ways from automating legal services more complex than discovery tasks, legal services of moderate sophistication can and have been outsourced to attorneys in foreign nations. Although for a while now the legal industry has outsourced work similar in character to the tasks that computer systems are now being designed to do. Pangaea3, a legal outsourcing company based in India, is leading the charge for outsourced legal research and contract drafting:

[Attorney for Pangaea3] Ms Langstieh’s tasks include policing the misuse of clients’ trademarks on the internet and researching liabilities in different jurisdictions. She has been at Pangea3 for less than two years but has already travelled to Europe to meet clients and regularly speaks to customers in the West as part of her work.

This post by Timothy Corcoran concisely summarizes why outsourcing to India, a concept would seem utterly mundane to most businesses in America today, feels like a revolution in the legal industry:

Why such a furor? Simply because the work being outsourced isn’t the widely proclaimed mundane work of staff accountants, secretaries, mail room clerks and marketers, this is real legal work, the work of highly trained lawyers, that is being taken from top global law firms and moved to a heretofore unknown company with salaried lawyers! “What is the world coming to?!” is undoubtedly the cry in BigLaw law firm boardrooms everywhere. What, indeed.

-Susan

Haiti, Humanitarian Assistance, and Extrinsic vs. Intrinsic Motivation: Why an International Law of Humaniatarian Assistance Would Reduce Foreign Aid

Right now, thousands of individuals from at least a score of nations are in Haiti, having been rapidly deployed there to offer assistance to the millions of Haitians now homeless, injured, or worse, as a result of the recent earthquake. Hundreds of millions of dollars have been pledged in aid, with more donations pouring in every day.

In Haiti, as has been the case in the wake of many other recent natural disasters, the state practice of rendering aid to the devastated region is widespread and pervasive. However, as far as I am aware, not a single nation has announced that it is sending aid to Haiti because it believes international law requires that it do so. There is no opinio juris, but merely states acting on the basis of their own independent motivations. And yet, it seems that every state that can offer assistance is doing so — not to mention so is every international organization, NGO, and corporation out there. Sub-state entities are offering help, too; a search and rescue team from Fairfax, Virginia, has been sent down to Haiti to help victims trapped in the rubble. Hell, even tiny little Togo has offered aid, along with a number of other developing nations. For a more complete account of who is doing what, a very detailed listing can be found at Relief Web. The list is as impressive as it is diverse.

Although human rights play a very large role in today’s international law jurisprudence, I suspect that, at least in cases involving high profile natural disasters, placing an affirmative duty on states to provide humanitarian assistance would ultimately reduce the amount of aid rendered.

Simply put, there just is not a need to give such a principle the force of law. For many reasons, among them moral duty and political posturing, states are already adequately motivated to supply aid in times of humanitarian crisis.
Aid — in the form of money, food and water supplies, search and rescue teams, infrastructure support, medical personnel, and much more — was immediate and widespread. The difficulty in getting aid to Haitian citizens has nothing to do with foreign states failing to act in support and everything to do with the horrendous conditions on the ground.

But if rendering humanitarian assistance were made to be an affirmative duty under international law, all the reasons for which states now offer foreign aid would be vastly diminished, and the total amount of aid given would almost certainly decrease.

“Crowding out” — otherwise known as the motivation crowding effect, to distinguish it from other kinds of crowding out — holds that offering external rewards or punishments to encourage someone to perform a task can, somewhat counter-intuitively, actually reduce people’s incentives to act, as the extrinsic reward undermines their intrinsic motivation. Developed both by economists and psychologists, the motivation crowding effect theory is a widespread phenomenon that appears in many different situations: [PDF]

The basic idea that rewards, and in particular monetary rewards, may crowd out intrinsic motivation emanates from two quite different branches of literature in the social sciences. Thirty years ago in his book The Gift Relationship Titmuss (1970) argued that paying for blood undermines cherished social values and would therefore reduce or totally destroy people’s willingness to donate blood. Though he was unable to come up with any serious empirical evidence his thesis attracted much attention. A second literature stems from psychology. A group of cognitive social psychologists have identified that under particular conditions monetary (external) rewards undermine intrinsic motivation. The application of rewards for undertaking an activity thus has indirect negative consequences, provided intrinsic motivation is considered to be beneficial

[T]here exists indeed compelling empirical evidence for the existence of crowding out and crowding in. This conclusion is based on circumstantial evidence, laboratory evidence by both psychologists and economists as well as field evidence by econometric studies. The evidence refers to a wide variety of areas of the economy and society: children’s learning behavior; patients’ readiness to take prescribed medication; monetary and symbolic rewards for undertaking various laboratory tasks; the tendency to reciprocate in the laboratory setting reflecting work conditions in a firm; the amount of trust exhibited in a laboratory situation of incomplete contracts; the reaction of managers to various forms of supervision by their superiors; the preparedness to offer voluntary work; the observation of time schedules in daycare centers; the on-time flight performance in the airline industry; the readiness to accept nuclear waste repositories (and other locally unwanted sites); and the amount of civic virtue exhibited, in particular with respect to fulfilling one’s tax obligations (tax morale).

If offering humanitarian assistance to foreign nationals struck by disasters became a legally mandated duty, either as a part of customary international law or enshrined in treaties, I see little reason to believe that there would be any increase in the amount of aid rendered. In the wake of disasters, the citizens of states who were now obligated to send money to foreign countries would feel resentment, not generosity, towards those in need of aid. States could no longer compete for moral brownie points with one another, or use aid as a means of obtaining soft power to support their political agendas. All of these motivating factors are far more compelling reasons for states to give aid than would be international law, which is a notoriously flimsy motivator of state action.

States would likely still give aid, of course, if they believed they were required to by law. But they would give only enough to satisfy whatever their duty was, and would use clever lawyers to reduce the amount they were required to give, or to explain why a “humanitarian disaster” was not really a humanitarian disaster and therefore no duty to render aid existed.

-Susan

Climate Change and the Jurisprudence of Statehood: Is a State Without a Territory Still a State?

I went to the program ASIL had yesterday on “Rights-Based Responses to Climate Change Induced Displacement,” which discussed the role of international law in handling ‘environmental migrants’ and internally displaced persons who are forced out of their homes as a result of conditions brought on by climate change. One of the speakers brought up an interesting scenario I had not considered before.

Rising sea levels may pose a serious risk to the national security of many island nations. For states such as the Bahamas and Tonga, a higher sea level is a grave threat, as the low lying parts of their territories that are at the greatest risk of going under tend also tend to be the areas of greatest habitation. But for other island nations, such as Kiribati, the Marshall Islands, the Maldives, and Tuvalu, climate change may pose a more severe and existential threat: these states may actually be at risk of becoming entirely submerged by rising sea levels. If these island states were to become completely swamped so that no part of their islands were above sea level, effectively leaving them with no physical territory to call their own, would they continue to exist as an entity recognized by international law?

Prof. Kälin mentioned the possibility of citizens of these at-risk countries becoming “stateless” if their islands go under. But statelessness, as he put it, could mean being without a nationality, not being without a state.  Even if an island nation were swamped, it does not necessarily imply that its government would not continue to exist.

Under international law, the traditional criteria for statehood does include “territory.” However, would such a formalist interpretation prevail after a climate related disaster sunk a whole nation? Or, in practical terms, would any state really have the callousness to stand up and announce, “It is unfortunate that the Maldives was submerged by rising sea levels, but we now object to its continued claims of statehood and UN Membership”? Maybe I am being too generous, but I doubt it.

There is also the possibility that any sunken nation could build up a tiny sandbar over the remains of their country, if the technical requirement of territory is found to be mandatory. There is no requirement that a state’s government be located within its own territory, after all — merely that a state have some territory to speak of, even if the seat of government is not located there. For instance, the internationally recognized governmental body of Somalia has at times operated out of the neighboring territory of Kenya, due to the unstable situation inside of Somalia itself.

Additionally, although the concept of statehood as a corporate-esque abstraction — a social construct characterized by its citizens voluntary allegiance, with little or no regard for the geograpgical location — has been a somewhat common trope in science fiction, there is in fact some modest precedent for the idea under international law. The Order of Malta, for example, has no territory of its own, but it claims to be a non-state sovereign entity, and has permanent observer status with the UN. It has diplomatic relations with 103 states, and even issues its own currency and stamps. Although most international scholars reject the notion that the Order of Malta is an “actual” sovereign entity, it clearly does exhibit some sovereign-like traits in practice.

Perhaps a nation submerged by rising sea levels would face a future similar in some respects to the current status enjoyed by the Order of Malta, although it seems likely a formerly-territoried state would face far less objection to its continued claims of sovereignty. The theoretical underpinnings of statehood have always been forced to evolve and adapt to changing political structures, however; it is not too difficult to imagine a hypothetical future world in which the idea that statehood is dependent upon attachment to a patch of dirt is considered to be archaic.

-Susan

© 200 B.C.: Starbucks’ Encounter With Intellectual Property Rights in Historic Artifacts

After being notified by the Mexican government that its new line of mugs featuring images of pre-Hispanic archeological sites and artifacts was an unauthorized use of Mexican cultural intellectual property, Starbucks has agreed to pay up.

Starbucks said Thursday it regrets any misunderstanding, and “we are willing to pay the appropriate amount for the use of these images.”

Mexico’s government archaeological agency says the images of the Aztec calendar stone and the Pyramid of the Moon from the pre-Aztec ruins of Teotihuacan are the intellectual property of the nation. The agency will decide how much Starbucks should pay.

The existence of intellectual property rights on pre-Aztec artifacts makes the current terms for copyright in the U.S. seem quite reasonable in comparison.

It appears that it is the Mexican division of Starbucks at issue, so the company is of course required to comply with any Mexican laws regarding cultural heritage and intellectual property. Outside of Mexico, those laws would have no direct effect, and you’re free to place the Pyramid of the Moon wherever you want.

-Susan

“By accepting these Terms, you agree to relinquish custody of your first born child to us.”

Perhaps I should make more of an effort to read Terms of Service agreements after all?

The image was hosted on PC Pitstop’s homepage, so they are clearly not concerned with it being publicized. But why would a company add such a term? There are two issues behind the inclusion of ‘Special Consideration’ clause that strike me as odd.

First, the clause itself is not enforceable — it is a classic illusory contract. Although it would pass as a unilateral offer and thus acceptable by anyone who actually read it, the last sentence negates any contract like quality it may have. “This offer can be withdrawn at any time” means that PC Pitstop has not actually committed itself to anything at all, and thus has given nothing up, and thus there is a failure of consideration.

Second, depending on how this clickwrap license is set up, the inclusion of the ‘Special Consideration’ clause could actually undermine PC Pitstop’s legal position. Although clickwrap licenses are far from black letter law, the basic theme behind them is that they are held enforceable where they are designed so as to provide reasonable notice and, generally, are assented to by the user’s affirmative conduct. However, by offering a gift in its Terms of Service (ToS), the company is effectively making a demonstration of how few people ever bother to read the ToS. It would by no means be dispositive proof, but if the ToS ever wound up in court, a user might be able to show how he in particular and users in general were not given an effective opportunity to review the terms, because 99.99% of them never tried to cash in on the offer.

As for clickwrap licenses more generally, I believe they provide a good example of how ill-suited old legal forms are when they are attempted to be grafted on to new technology. It is not a secret that no one reads the ToS forms — heck, I remember from 1L year, our contracts professor admitted that she herself never bothered to read them — and yet courts insist on using centuries old contracts principles to analyze them. As seen by Bragg v. Linden Lab, courts can find a term from a ToS ‘unconscionable’ when they do not want to enforce it. This threatens to result in an extremely inefficient system in which contracts are announced unilaterally by one party, never read by the second, and then treated as a “cafeteria contract” by the judge who picks which clauses she wants to keep and which clauses she wishes to discard. The judiciary of course has a little other option, but it would be nice to see the legislatures jump in and establish contract laws that are better suited for the unique online environment.

Unfortunately, given the nature of the internet, allowing state legislatures to direct the process is not an ideal solution either. Much as I reflexively dislike the idea of the federal government involving itself with contract formation, it may be necessary in order to create a more orderly, contractually agreed upon cyberspace.

-Susan

Legal Unemployment, Worldwide

In thirty years, China has gone from having six law schools to having 634. Predictably, this is not entirely good news for the graduates of those schools, as law is now the hardest profession to find employment in:

Law has topped the list of the 10 most difficult professions to land a job in the country for two consecutive years, taking the No 1 slot in 2008 and No 2 in 2007, according to a joint study released in June 2009 by China’s Academy of Social Science and Beijing-based consulting company Mycos Institute.

However, I found this even more curious:

The other majors [that are difficult professions to find employment in] include computer science, English, international economics and trade, business administration, clinical medicine, Chinese literature, art design, electronic engineering and accounting.

To be fair, ‘Chinese literature’ and ‘art design’ might be the Chinese equivalent of an American liberal arts degree, the kind everyone derides as being not good for much in the real world. But clinical medicine? Engineering? Accounting? Business administration? These are the sort of majors that sensible, job-oriented students take that are, in the U.S., supposed to leave graduates happily having their pick of employment, while their lowly English lit classmates are waiting tables.

It suggests to me, anyway, that there is nothing particularly unique about the plight of law grads in China, but that the market for highly educated labor in general is somewhat stunted.

Still, this could very much be a hindrance to China’s long-term development.

“Law graduates have the most difficulty in job hunting, which means the supply has exceeded the demand,” Wang said.

“If there is no adjustment in place soon, it is not good for the development of law in the long run.”

Unlike the U.S. — which, I might reluctantly concede, may simply have an overabundance of lawyers in general — China has come no where near to meeting the potential demand for lawyers, but rather the legal infrastructure that would support all those theoretical legal jobs has yet to materialize. The creation of a political climate that respects the rule of law necessarily requires the presence of lawyers, however. China’s fledgling legal system is characterized more by the rule of men, but there is, at least in theory, a legal system in place. A healthy bar that continuously engage in litigation to resolve disputes may or may not eventually result in a robust Chinese legal system, but nothing else has a chance of doing so.

In other law school related news from China, U.S. law grads may eventually get some competition from China, if the Peking University’s School of Transnational Law succeeds in its plan of becoming the first non-American school to be accredited by the ABA.

-Susan