Yearly Archives: 2010

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

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

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

Market Failures and Dried Apricots

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I’ve always liked dried apricots, but the texture of them is, admittedly, kind of disturbing to me. Not to mention their color — that neon-tinged ocher was never meant to be seen in nature. But they make for excellent trail mix and they taste pretty okay, so I’ve learned to ignore the unsettling chewy texture and bulbous appearance.

And then last week I was introduced to sulfur-free dried apricots. And I am never going back.

As it turns out, the dried apricots that are commonly available in stores get their Frankenstein-like attributes from being treated with sulfur dioxide. Unfortunately, this treatment has the mild side effect of completely ruining the flavor. In contrast, sulfur-free dried apricots look kind of like flattened and freeze-dried termites, but they are approximately a hundred times tastier. As a friend of mine put it, “organic dried apricots are nature’s Sour Patch Kids.” They really are. Go buy some now, you won’t regret it.

So why has it taken me this long to discover how much better sulfur-free dried fruit is? Well, probably because I’m an indiscriminate omnivore, and when I see something labeled as “organic” I tend to interpret it as “overly expensive for no justifiable reason.” But it’s also because sulfur-free dried apricots are really hard to find. Grocery stores tend to only carry the sulfur-treated variety — and when placed side by side on a super market shelf, I can see why the sulfured monstrosities might look more superficially appealing to a potential customer. At any rate, stores seem to be inclined to carry the less tasty version over the organic kind, probably in order to appeal to shoppers who are basing their purchase on appearance. Compare for yourself:

Dried apricots that have been treated with sulfur dioxide

Dried apricots that do not taste like ass

Dried apricots are not the only fruit where consumers are forced to settle for pretty at the expense of tasty. The tomato is probably the most notorious example of this — supermarket shelves are lined with bright, round, shiny red tomatoes that seem to come straight from central casting. But when it comes to taste, comparing these Hollywood-perfect tomatoes with a heirloom variety, such as UglyRipe, is kind of like comparing Natty Light with a microbrew. The average tomato available at the supermarket is simply a bland and watery imitation of the real thing.

In the case of tomatoes, though, there is at least a strong argument to be made that the government is to blame for the lesser availability of the ugly-but-tasty varieties. But when it comes to dried apricots, the specter of government regulation cannot be as easily invoked, to explain why the sulfur-treated apricots are widely available and the unprettified kind are so hard to find. True, drying fruit with the help of sulfur dioxide is cheap, but my guess is that the real appeal is the resulting appearance. People just aren’t going to venture out and try and entirely new food type when the appearance is so unsettling. I mean, would I have ever tried the non-sulfur kind on my own, if a friend hadn’t bought some for me to try? Probably not. Because they’re labeled organic, and I don’t swing that way. But also because there is nothing particularly compelling about the sight of a bag of organic dried apricots, which could in fact be confused with a bag of potpourri.

So consumers don’t know enough to go for non-sulfur treated dried fruits. And stores — except for stores that specialize in catering to yuppies, like Trader Joe’s — have little to gain from trying to offer consumers an ugly looking version of a commonly available product. Which means we’re stuck eating a less-good version of dried apricots, unless and until consumers somehow discover en masse how much better the organic kind can be.

-Susan

The Money Tree

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What happens when money starts sprouting on trees?

About what you’d expect: a lot of people didn’t notice, the ones who did seemed to assume it was an art installation and snapped pictures with their camera phones, and then once one brave dude started to harvest a few of the notes for himself with no ill-effects, everyone else joined in.

The money tree was a marketing ploy by RaboDirect Australia, and it reminds me of the old joke about the economist who doesn’t stop to pick up a $20 bill he spots on the ground, because he assumes if there truly were a $20 bill free for the taking, someone else would’ve nabbed it by now.

“We were surprised by the results when compared to the way people treat their savings, which often sit idle in their transaction accounts,” says the bank. “Much like the A$4.7 billion in potential savings Australians are missing out on in lost interest, the majority were unfazed when presented with money actually growing on a tree.”

To be fair, I think I’d have the same reaction as those who stopped and took pictures — it seems fair to assume that if you see a money tree pop up in a park, some hipster art student is behind it. I don’t understand the people who didn’t even notice it, though; I can see how green backs might be missed, but Australian money is bright and gaudy enough to stand out.

-Susan

Dismemberments by Chainsaw: A Review of the Literature

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Sometimes, I wonder if I should have gone into medicine instead of law. I can’t decide if the following articles confirm or deny that suspicion. From the Journal of Forensic Psychology, we have:

Blood and tissue spatter associated with chainsaw dismemberment.

Randall B.

Department of Pathology, University of South Dakota Sanford School of Medicine, Sioux Falls, SD 57103, USA. fornsix@aol.com
Abstract

In response to the unexpected paucity of blood/tissue spatter at the site where a body of an adult woman was dismembered by an electric chainsaw, we dismembered two large pig carcasses with a small electric chainsaw in a controlled environment. These experiments demonstrated first that a large carcass could be easily dismembered by a small electric chainsaw. When the chainsaw bar is held parallel to the ground the majority of the blood and tissue is deposited directly beneath the saw and bar and very little elsewhere. If the discharge chute of the saw however is not oriented directly at the ground, larger amounts of blood and tissue may be sprayed on lateral surfaces or deposited some distance from the chainsaw. The characteristic striations created on the surface of wood as it is cut by a chainsaw can also be found on bony surfaces cut by a chainsaw.

Death caused by a chain saw–homicide, suicide or accident? A case report with a literature review (with 11 illustrations) has a disturbing conclusion. And/or it was ripped from the plot of a CSI episode. (Sadly, the illustrations are locked behind a pay wall).

Reuhl J, Bratzke H.

Center of Forensic Medicine, University of Frankfurt/Main, Germany.
Abstract

A 31-year-old farm worker was found dead beside a chain saw. Based on the testimony of a colleague and because of the situation at the site, the police very soon presupposed an accident. It was assumed that the victim had slipped on the sudden ground and had been killed by the subsequent swerving of the saw when starting the engine. The body presented with a deep lacerated wound at the right side of the nape of the neck, including the first cervical vertebra, the medullary canal and the right mandible as well as multiple fissures of the occipital bone, which were attributed to repeated forceful use of the chain by another person. A second wound with relatively sharp edges and a tangential fissure in the corresponding area of the skull raised the suspicion that an axe or some similar device had been used. Although the forensic medical findings seemed to give clear evidence of external violence, no further investigations have been carried out so far by the authorities.

And Unusual suicide with a chainsaw.

Tournel G, Dédouit F, Balgairies A, Houssaye C, De Angeli B, Bécart-Robert A, Pety N, Hédouin V, Gosset D.

Faculté de Médecine de Lille, Institut de Médecine Légale et Sociale, 59045 Lille Cedex, France. gilles.tournel@univ-lille2.fr
Abstract

Described here is a case of suicide with the use of a chainsaw. A female suffering from schizophrenia committed suicide by an ingenious use of a chainsaw that resulted in the transection of her cervical spine and spinal cord. The findings of the resulting investigation are described and the mechanism of suicides with the use of a chainsaw is reviewed. A dry bone study was realized to determine the bone sections, the correlation between anatomic lesions and characteristics of chainsaw. The damage of organs and soft tissues is compared according to the kinds of chainsaw used.

“Ingenious use.” Well, credit where credit’s due, I guess.

-Susan

U.S. Military’s Ban of ‘Medal of Honor’ Is An Unconstitional Restriction of Speech

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The new Medal of Honor, an upcoming video game scheduled for release in October, will not be sold on U.S. military bases due to objections over the game’s content, specifically the “well-documented reports of depictions of Taliban fighters engaging American troops.”

The commanding general of the Army and Air Force Exchange Services explained the policy as follows:

“Out of respect to those we serve, we will not be stocking this game…. We regret any inconvenience this may cause authorized shoppers, but are optimistic that they will understand the sensitivity to the life and death scenarios this product presents as entertainment. As a military command with a retail mission, we serve a very unique customer base that has, or possibly will, witness combat in real life.”

Of course, there are plenty of other violent war-based FPS games available through the AAFES. It appears that the military’s ban on video games in which you play the role of the “bad guy” is limited to incidences in which you are playing a bad guy that is killing American troops. As noted by GamePolitics, “while Medal of Honor was pulled because players could assume the role of Taliban fighters, as of the time of this article, it was still possible to purchase Call of Duty: Modern Warfare 2 from AAFES stores, which featured a mission in which the player acts as a terrorist, shooting civilians in a Russian airport.”

This seems like a clear example of the government implementing a content-based restriction on speech. Under the First Amendment, such content-based restrictions of speech must be ‘narrowly tailored to serve a compelling state interest.’ Restrictions that are also viewpoint-based get a higher level of scrutiny yet. The AAFES’ refusal to sell Medal of Honor on military bases is a content-based restriction and, I’d argue, also a viewpoint-based one, particularly given the manner in which Medal of Honor has been singled out.

True, the military often gets some leeway when it comes to Constitutional restrictions, particularly when “national security” is invoked. But as held by a district court earlier this year in Nieto v. Flatau , “[w]hile military officials are entitled to great deference in restricting speech to further the military’s needs, they may not do so in a manner that discriminates against a particular point of view.” Additionally, any argument that this is a restriction of “commercial speech” would almost certainly fail. This is a refusal to sell a piece of media because of what it portrays — in that regard, restrictions based on a video game’s content should be evaluated in exactly the same manner as restrictions based on a book’s content.

And the ban on Medal of Honor doesn’t even come close to passing the degree of scrutiny required for such restrictions. “[S]ensitivity to the life and death scenarios this product presents as entertainment” is not a compelling state interest.

-Susan

Saying “Whatever” To The Judge Is Generally Not An Optimal Trial Strategy

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In Kentucky, an attorney is facing jail time for refusing to reveal the name of her client to the court. Attorney Adams represented a minor seeking an abortion in a bypass-proceeding, and in the course of the hearing it was revealed that the girl and her sibling lived in an abusive home. The judge wanted to know the identity of the girl in order to address the abuse:

After 36 years of practice, Amelia “Mikki” Adams faced an attorney’s worst dilemma: Protect the identity of her client — a 17-year-old girl — or comply with a judge’s order to disclose her name.

Adams opted to protect her client, and now she faces six months in jail for contempt of court.

Sounds pretty unjust, no? Although Kentucky has a mandatory child-abuse reporting law — which the judge is relying on in making her demand for the child’s name — U.S. Supreme Court precedent has held that states with laws requiring parental consent for abortion must provide a method by which the minor can anonymously request the court for an exemption. It is unclear which of the laws trumps the other:

“The judge certainly was justified in attempting to deal with the abusive parents,” said Hofstra University law professor Monroe Freedman, an expert on legal ethics who has testified in Kentucky courts. “But the lawyer was unquestionably correct in refusing to divulge the information without making every reasonable effort to appeal the judge’s order.”

On first glance, it sounds like the judge is being extremely unreasonable in holding the attorney in contempt here. … But then, upon reading the transcripts, the real reason for the judge’s harsh stance becomes apparent:

Adams: “ I respectfully decline to give any information that I may have. At this time I have no information. … I do not know anything other than that her initials are “J.J” and that her first name is (redacted). … And she has instructed me to decline giving any information. She is my client. The privilege is hers. It is not mine. … “
[Judge] Karem: “ And how do you know her first name?”
Adams: “ She gave it to me.”
Karem: “ But she didn’t give you her last name?”
Adams: “ She did give me her last name, and I am not going to give it to the court.”
Karem: “ So you do know her last name?”
Adams: “ Yes, I do, and I’m not going to give it to the court.”
Karem: “ That is contrary … to what you told me a few seconds ago, that you didn’t have any other information but her first name.”
Adams: “ I misspoke. I’m sorry.”
Karem: “ At this point I think you need to be quiet.”
Adams: “ Whatever.”
Karem: “Ma’am, you have an attitude.”

Shouldn’t that have at least been “Whatever, your honor”?

While I still respect the attorney and think she made the right call in not revealing her client’s name, I gotta be honest, she kind of deserved to be held in contempt.

-Susan

Month-long Traffic Jam Expected in China

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The Beijing-Tibet Expressway is currently on day 9 of a 60-mile long traffic jam…. and the gridlock is expected to last a month more, as construction on a parallel roadway continues. (Where’s the Doctor when you need him?)

This is not just slow moving traffic. The roadway is at a standstill, and highway-side markets have sprung up to keep the people trapped in their vehicles fed:

Truck drivers interviewed by Chinese state media said they were forced to buy instant noodles at four times their original price from local residents while they sat for days playing cards or just resting in their vehicles.

Traffic is rapidly becoming a major problem in China — the traffic has a spill-over effect off the highway, as delays in delivery lead to delays in production and manufacturing, not to mention that any perishable goods will be ruined long before the current traffic jam is over — but the government has some creative proposals for how to address the problem. I’m skeptical about whether the Straddling Bus will work as well in practice as it does in theory, but it still looks pretty darn cool:

Proposed by Shenzhen Hashi Future Parking Equipment Co., Ltd, the model looks like a subway or light-rail train bestriding the road. It is 4-4.5 m high with two levels: passengers board on the upper level while other vehicles lower than 2 m can go through under. Powered by electricity and solar energy, the bus can speed up to 60 km/h carrying 1200-1400 passengers at a time without blocking other vehicles’ way. Also it costs about 500 million yuan to build the bus and a 40-km-long path for it, only 10% of building equivalent subway. It is said that the bus can reduce traffic jams by 20-30%.

-Susan