More on the power to enforce (or not to enforce) immigration law

My latest (and, I hope, last) argument is at Slate. I respond to Douthat and Salam. My initial response to the Douthat column that got the ball rolling was at The New Republic. Both Douthat and Salam responded with ad hominem attacks (Salam later took his down). Douthat’s response is here (he thinks wrongly that Obama can’t reverse his policy, and he’s wrong to say that Obama is “legalizing” illegal immigrants); Salam’s two later responses are here and here.

I left out of my most recent piece for reasons of space one additional point that is worth making: it is wrong to claim that Obama has put into place (“de facto”) the path-to-citizenship law that Congress has refused to pass. Obama has no power to grant citizenship to anyone, and his enforcement authority expires with his term.

July 4 in Chicago: A reply to Reihan Salam

Various commentators seem to be shocked by my claim that the president can refuse to enforce the immigration laws. They think that such an action would violate the Constitution. No lawyer does, aside from a few with idiosyncratic views about the Constitution. Let me see if I can explain why.

Last July 4, I took a stroll along the Chicago lakefront in my neighborhood. As far as the eye could see, ordinary people were setting off fireworks, and not just everyday firecrackers, but what seemed like commercial-grade fireworks that showered sparks on us from high in the air. Numerous police officers stood around and watched. Even though fireworks (beyond smoke bombs and sparklers) are quite illegal in Chicago, no one moved to make an arrest or even issue a warning.

This is a familiar example of executive discretion. Hundreds of people violated the law. The police did nothing about it. Why not? Maybe because they did not have enough resources. Maybe because the mayor thought arrests would be unpopular. Maybe because the police enjoyed the fireworks display. Who knows? It doesn’t matter. No one thinks that the city government behaved unconstitutionally though quite a few citizens complained. (This has been going on for many years.)

Obama’s (apparent) plan not to enforce immigration laws is just another example. His critics have worked hard to distinguish it from run-of-the-mill enforcement discretion that the Constitution places in the executive branch. Reihan Salam makes several attempts.

First, the president can use his law enforcement discretion to “husband enforcement resources” but only to advance the immigration law, and that’s not what he’s doing. But Chicago did not “husband enforcement resources” to advance “fireworks law.” It simply disregarded the fireworks ordinance. It husbanded resources for goals (for example, keeping order) that it deemed more important than stopping people from shooting off fireworks. There is no rule that enforcement discretion is somehow law-specific.

Second, Salam argues that the president can’t do what Congress didn’t intend. Congress didn’t intend to allow the president to give work permits to millions of illegal immigrants. True, but state and city lawmakers didn’t intend to allow Chicago police not to enforce the fireworks law. Or, to draw a closer parallel, to give fireworks permits to thousands of amateurs. The law reveals an intent that is exactly the opposite.

Third, the president can’t prospectively “suspend” the law. (He’s not suspending it–he can’t do that–but never mind.) Here we see a difference. The Chicago police do not announce in advance that it will suspend the law requiring people to obtain a license to shoot off fireworks. That the police are issuing “fireworks permits” hither and yon, akin to Obama’s work permits. But everyone knows that this is the policy. No one has explained why announcement of prospective action–which serves important rule-of-law values by informing the public of policy–is a defect rather than an improvement over the Bush era, where virtually no employer was ever punished for employing illegal immigrants but a policy of non-enforcement was never announced.

Question: How many employers were punished by the Bush administration in 2006 for employing illegal immigrants? Answer: zero. It’s true that he didn’t announce a policy of granting work permits to  illegal aliens. But that was his policy. Why didn’t Salam argue then that Bush was violating the Constitution?

The truth is that a huge number of laws are simply not enforced. An old example that people used to cite are sodomy laws. They were on the books; they were occasionally used against rapists when a jury couldn’t be persuaded that the victim withheld consent. Sodomy laws were virtually never enforced against (otherwise) law-abiding people. All kinds of old laws sit on the books that no one bothers to enforce. And not just crazy old state laws. There are thousands of intricate regulatory laws governing industries of various sorts that are never or selectively enforced.

Environmentalists and other advocates have complained for decades about executive-branch policy (yes, explicit and prospective) of issuing rules under regulatory statutes like the Clean Air Act only if those rules pass cost-benefit tests. This policy was first implemented by Reagan in 1981. The policy is plainly one of under- or non-enforcement of the law, which contains no such cost-benefit test but rather requires strict regulation. Yet I’m guessing that Salam and Douthat don’t see this policy as an example of “domestic Caesarism.” Why not, exactly?

Or if you want still more examples, consider the well-recognized phenomenon of “regulatory forbearance” in banking law where banking regulators decline to shut down a sick bank despite its violation of capital-adequacy regulations because they think it will recover. Or consider the endless statutes that ban “loitering,” “disorderly conduct,” “breach of the peace,” and the like. If police had to literally enforce these laws, we’d all be in jail. So if you wonder why courts never try to force the executive branch to enforce the law, this is why.

All that is different about the immigration example is that it is currently a hot-button political issue. As Salam seems to recognize implicitly as his piece winds down, the president is (or may be) violating a political norm, not a constitutional norm. And for that reason his decision may be a bad idea, and perhaps it will backfire. But that doesn’t make it unconstitutional.

Piketty and Intergenerational Wealth Transfers

Glen Weyl and I wrote a piece for The New Republic on Piketty’s book. Piketty’s book has received a lot of attention for two reasons–the first is that it is rigorous and fascinating; the second is that its focus on inequality resonates with public anxieties about the direction of the market economy.

There is a sensible argument about inequality and there is a dubious one. The sensible argument is that today certain lucky folks–financiers, start-up entrepreneurs who hit the jackpot, top CEOs, and so on–who earn vast incomes, almost certainly far in excess of what is needed to motivate people to generate value for the economy, and in many cases (above all, in finance) even in excess of whatever value they do generate, should pay higher income taxes. Many people think that Piketty’s book makes this argument. But while Piketty endorses this view, or at least seems to, this view is not the distinctive contribution of his book.

The book is called “Capital in the Twenty-First Century,” not “Income in the Twenty-First Century.” Piketty argues that extreme inequality is the result of the accumulation of capital in the hands of the few across generations. And because the rate of return on capital is higher than the “natural” rate of economic growth, inequality can only increase. This argument really is distinctive–it is the distinctive contribution of the book–and it is what leads him to endorse a wealth tax (as opposed to a higher income tax, though he does support a higher income tax as well). This argument is dubious. It rests on implausible assumptions about how super-rich people spend their money, and, most of all, how they transfer it to heirs.

James Morrow, Order Within Anarchy

This book explores compliance with the laws of war, focusing on laws regulating the treatment of POWs, using theoretical models and empirical data. Governments take an instrumental  approach to the law: they follow it when it serves their interest. The major way this can happen is if retaliation by the enemy is worse than any temporary gains from violating the law while the enemy follows it. Thus, a state may violate the law if (1) the law puts it at disadvantage and so it gains from disregarding it even if the enemy does as well; or (2) the law puts the enemy at a disadvantage so it cannot be expected to comply with it. Mutually beneficial cooperation can break down because the rules are unclear, but trying to get them precise in advance is difficult because of uncertainties about future changes in technology and the like.

A good companion book is Isabel Hull’s A Scrap of Paper, which examines the laws of war during World War I. Hull also addresses the laws of neutrality, which create more complex strategic interactions than POW rules do. A belligerent wants to inflict as much harm on the enemy as possible,  including interference with trade with neutrals, but up to the point where the neutrals themselves protest and may join forces with the enemy. The legal rules play an even more limited role than POW rules do. Neutrals have complex attitudes toward the belligerents, and some will tolerate violations of the law of neutrality by one belligerent because of their hostility to the other.

Hull is a historian while Morrow is a political scientist but the books tell a similar tale about governments’ instrumental attitudes toward international law. International law professors, who regard international law from a static, doctrinal perspective, and against all evidence take compliance for granted rather than as a problem that influences how the law is interpreted, could learn a lot from these books.

Would it be lawful for Israel to shut off electricity to Gaza?

Yes, says Avi Bell (updated version here). No, says twelve other scholars in Israel. This is a purely hypothetical question because Israel has expressed no intention of shutting down the flow of electricity into Gaza, and probably wouldn’t gain anything by doing so. But since you asked….

International law does not bar a belligerent from cutting off electricity. Indeed, a belligerent is free to bomb the power plants of its enemy, as the United States has recently done in Iraq and Serbia. Gaza has only a few power plants and receives most of its electricity from Israel. Israel could cut off electricity even if it were not at war with Gaza, just as it could refuse to trade with Gaza. Being at war with Gaza, it could not only shut off electricity, it could blow up Gaza’s plants.

A possible counterargument would be that Israel occupies Gaza. An occupier normally must maintain services for the people living in occupied territory. So one question is whether Gaza is occupied. No: Gaza has its own government and own militia. Yes: Israel controls the borders and can intervene at will. I think the better answer is No–Gaza is blockaded and besieged but not occupied.

But the 12 authors don’t argue that Israel occupies Gaza. Instead, they argue that Israel has certain obligations to Gaza because Israel used to occupy Gaza and since withdrawing has prevented Gaza from developing infrastructure by blockading it. There is an Israeli Supreme Court case that lends credence to this theory, but international law does not. There is no legal authority for the principle that a belligerent that has withdrawn from a country has any obligations toward it that arise from the former occupation. Nor can the authors cobble together a description of the contours of those obligations if they did exist, so even if Israel owed obligations toward Gaza of some sort, it would hardly follow that it cannot cut off electricity if it believed that doing so advanced a legitimate military objective.

I suspect that Israel has sensible political reasons for not cutting off electricity, and so let us hope that this debate remains theoretical.

Piketty, chs. 3-4

These chapters describe changes in the capital/income ratio over time in several countries. A high capital/income ratio means that capitalists gain a large portion of national wealth, signifying inequality  (given that the wealthy own most of the capital). It’s a bit hard to comment on these chapters since they are part of the larger argument in Part 2, but here are some thoughts.

1. Piketty’s main point is that the capital/income ratio in the UK, France, the US, etc., has changed little over the centuries aside from a major dip around World War I and World War II (a minor dip in the US). The message is that capital-driven inequality is alive and well, and not much different from the bad old days of Austen and Balzac.

2. The dip, however, has created the illusion that inequality is getting better–this is what fooled Kuznets. The wars displaced us from long-run trends but only temporarily.

3. It is true that change has occurred–but the change has been in the composition of capital, not its contribution to national income. Agriculture is less important than it was; manufacturing more important. Like the dip, changes in the composition of capital has distracted observers, causing them to overlook the long-term trends in inequality and the role of capital in those trends. These superficial changes in the form that capital takes prevents us from seeing that our society is fundamentally the same as Austen/Balzac’s.

4. It is noteworthy that in recent years, the contribution of housing to the composition of capital has increased dramatically. This has given rise to some debate about whether this is consistent with Piketty’s thesis. I haven’t tried to understand this debate. You can read about it here.

5. Piketty is often most interesting in his sly asides. In a few places, he distinguishes “rent-seeking” or “quiet” capital from “productive” or “risk-taking” capital. I look forward to seeing whether and how he develops this idea. But the implication is that beyond the capital/income ratio, there is a question of when capital is socially good and when it is socially bad.

Here is my last post on Piketty.

Asia’s Cauldron by Robert Kaplan

This book describes the turmoil in the South China sea, where China, the Philippines, Malaysia, Singapore, Taiwan, and Vietnam all vie for control over marine and mineral resources. The book consists of thumbnail sketches of each country’s history, economy, political cultural, and position with respect to the South China Sea, and describes the conflicts that have so far taken place. Kaplan takes a relentlessly realist view, arguing that the source of conflict is China’s rise, and the only way to stop the conflict is to maintain a balance of power, which means that the United States must both accommodate China and resist it.

Kaplan has little to say about international law. In a brief discussion of the Law of the Sea Treaty, he argues that if it weren’t for nationalism, the countries could divide up the resources peacefully. He draws a distinction between emotion and intellect–law fails because it can’t contend with emotion. But it’s an odd thing for a balance-of-powers theorist to say: the balance of powers also depends on states acting in their self-interest rather than succumbing to the fires of nationalism. The real problem with the Law of the Sea Treaty is that it does not divide up resources in a manner that reflects the power of countries in these region, and that is what has caused China to depart from the Treaty and insist on ad hoc negotiations with all the attendant risks. If governments lose control of the nationalism of their populations, all bets are off whether you are a realist or a legalist.

Podcast with Ilya Somin: Did President Obama violate the Constitution in the Bergdahl case?

Ilya says yes (based on what I think is an originalist or textualist interpretation of the Constitution), I say no. A few further comments/questions.

1. Assuming both presidents violated the Constitution, Ilya believes that Obama’s constitutional violations (Bergdahl, Libya) are more serious than Bush’s were (torture, surveillance). Although I said the opposite, I’m not sure. How does one measure the seriousness of a constitutional violation (as opposed to the unwisdom of the underlying action)? Bracketing the harm done by these actions, it seems to me that Bush’s would be harder to defend based on conventional legal reasoning (again, if you assume that the president has no authority to defy Congress), but I’m not sure why. Ilya also thinks Obama’s actions caused more harm to the nation than Bush’s did. I don’t know.

2. Ilya tells a story in which we learn over history that certain policies (torture, surveillance, prisoner exchanges, military interventions) are unwise or presumptively unwise. Congress incorporates this understanding into law. The president, because he is motivated by short-term political considerations, violates the law. This is why Congress should be given the power to control executive action. My view is nearly the opposite. To take one of many examples, I believe that Congress’ policy toward Guantanamo Bay reflects short-term political considerations. Or consider the debt limit conflict.

3. Ilya seems quite certain that the prisoner exchange was unwise as a matter of policy. Based on what? Prisoner exchanges (including exchanges with “terrorists”) have been routine throughout history. I believe that abandoning Bergdahl to his fate with the Taliban would have been a blow to national prestige and, I suspect, morale in the military. What would have been the political reaction if the Taliban had executed Bergdahl and then it leaked out that Obama had turned down an offer to make an exchange?

More on the California teachers case

Judge Treu argues that job security rules in California violate the right to education because “über due process” for teachers threatened with dismissal makes it impossible to fire incompetent teachers. He might reflect on this problem. If a strict scrutiny test is now used to evaluate job security provisions, then henceforth students (and interest groups that use them as vehicles) can challenge every change in the rules–and, I suppose, not only changes to job security rules, but also to the curriculum and all other features of schooling. If a school district decides to reduce the number of music courses to make room for computer science, or vice versa, it will now have to show that the change is tailored to a compelling government interest. Raj Chetty will be dragged out again to show the effect of music or computer science on future income.

Or consider again job security. One of the reasons that employers–and not just public schools, but regular commercial firms, as well as universities and many private schools–offer job security is that employees value it so much. They’re willing to accept a lower salary in return for job security. The employer faces a tradeoff: it loses some ability to control employees, but it saves a lot of money, which it can use for other things. And so with the schools. If California is no longer allowed to offer job security, it will either need to pay teachers more (leaving less money to spend on students) or hire fewer teachers. Is that going to advance education? The court has no idea, indeed doesn’t seem to have given any thought to these issues.

The long and the short of it is that a judge is in no position to make these tradeoffs. If courts demand that schools justify reforms (to say nothing of existing rules) using a strict scrutiny test, seriously applied, schools will be frozen–afraid to make any changes lest they are sued by thousands of disappointed students (no doubt financed by interest groups) who claim that their right to education has been violated.

The Teacher’s Union Case

Vergara v. State of California. I do not believe that this case will be affirmed on appeal; or if it is, I believe that it will be distinguished away to oblivion. Courts have had nothing but trouble trying to enforce “social rights” like the right to an education where those rights exist (in states like California, and in many foreign countries), and generally give up. To see why, consider Judge Treu’s holding that the two year probation period for new teachers results in discrimination against low-income and minority students who end up being stuck with grossly incompetent teachers whose incompetence could not be detected in such a short period. Yet he says that a 3-5 year period–which exists in most other states–would be adequate. Yet is there any evidence that a three to five year period rather than a two year period will enable authorities to screen out grossly incompetent teachers? None that the court cites. Nor does the court consider the benefits of a short period–that it might attract teachers who may otherwise go elsewhere (such as private schools).

Or consider his argument that the last-in-first-out rule (junior teachers are fired before senior teachers if layoffs are necessary) discriminates against low-income and minority students. LIFO systems are common in private industry, probably because, despite its defects, it rewards people who invest in the firm. Moreover, people value job security; if you don’t give it to them, you need to pay them more. The court does not provide any serious analysis of the benefits and cost of this system compared to realistic alternatives.

Finally, if, as the court says, these rules discriminate against low-income and minority students because school authorities funnel the grossly incompetent teachers whom they can’t fire to the weakest schools, isn’t the proper remedy to forbid this behavior directly? The court is never very clear whether it is enforcing a right to education (meaning a right not to be taught by a grossly incompetent teacher) or a right not to be discriminated against (a right not to be taught by a grossly incompetent teacher because you are a minority or are poor).

I don’t think that the California courts want to get into the business of running the public schools.

Piketty, chs. 1-2

I’m meeting with some colleagues over the summer to discuss Thomas Piketty’s new book, Capital in the Twenty-First Century. We’re reading two chapters every week, and I’m going to post my thoughts as we go along. You can think of this as a slow-motion book review.

Chapter 1 provides an overview, and Chapter 2 mainly discusses concepts, so it’s premature to comment on Piketty’s main argument. Indeed, as I go along, I’ll probably need to revise initial impressions in light of later chapters. That said, here are some comments on the first two chapters.

1. Piketty places himself in an intellectual tradition of economists who are concerned with growth and inequality, above all Ricardo, Marx, and Kuznets. Piketty praises each for focusing on these issues, for attending to empirical realities (particularly Kuznets who puts together the first usable data set), and for proposing a theory about the long-term trend of inequality. And he criticizes each for being, well, wrong, and specifically for extrapolating on the basis of inadequate data.

And my first thought is how these comments rebound on Piketty’s own project. One key issue is to what extent can he reliably extrapolate based on his own (much better data). Kuznets was wrong in extrapolating a downward trend in inequality on the basis of his limited data, and so we have to wonder about the basis for extrapolating an upward trend in inequality on the basis of Piketty’s significantly better but still limited data. One notable point is that Piketty extrapolates low long-term economic growth (a key variable in his theory) on the basis of many hundreds of years of history rather than going back to (say) the industrial revolution or later. Is that the right assumption?

2. I suspect, based more on the reviews than on what I have read so far, but partly on that as well, that we will see two Pikettys, or rather two theses:

a. The weak thesis: there is (contra Kuznets) no law that inequality declines with growth; it could go up or down. No one knows.

b. The strong thesis: there is a law that (also contra Kuznets) inequality will increase with growth.

I’m interested to see how this plays out. The weak thesis may contradict some popular right-wing misconceptions but as an academic theory it’s pretty, well, weak. As Piketty acknowledges, Kuznets himself did not consider his own law anything more than speculative. The strong thesis is much more exciting and important, but may end up being just as speculative as Kuznets’.

3. Another issue that I will revisit as I learn more is what exactly we should think about inequality. Piketty is not very clear about this so far. He hints that inequality could lead to very bad outcomes–revolutions, or an oligarchy, or social instability–or maybe it is inherently objectionable. A very old question is whether inequality is worth tolerating for the sake of growth if the bottom rises. Piketty is already clear that we can’t assume that this is the case; nonetheless, we need to know what we think about this before we propose reforms that might improve equality but suppress growth.

4. Finally, I was struck by an interesting observation that Piketty makes in passing about development. He argues that the development success stories–China, South Korea, Japan, and so on–benefited from free trade but not from foreign investment. Meanwhile, foreign investment has actually harmed many countries, especially in Africa and maybe Latin America, because poor members of the public resent foreign wealth in their midst and support populist governments that expropriate foreign investment and destroy the economy. Is there empirical evidence for this argument?, I wonder. If it’s right, it has important implications for how best to help developing countries (namely, don’t invest in them!).

Is government secrecy “presumptively illegitimate”?

Yes, says Jack Goldsmith in a comment on Kinsley’s review of Greenwald’s book on Snowden:

I think Kinsley is also wrong about the normative question of who should decide.  The government should not have the final say about which of its secrets is published. Government action undisclosable to the American public is presumptively illegitimate. We tolerate secrecy to some degree because it is necessary for national security.

He continues:

But in a constitutional democracy where the People ultimately rule, secrecy from the People is aberrant (for they cannot govern what they do not know), and it demands special justification (thus the presumption against its legitimacy).

All of this sounds like it must be right until you think about it for more than a few seconds. In fact, government secrecy is pervasive, and it goes well beyond national security.

For example, the government’s records about everyone’s finances, collected by the IRS and other agencies, are secret. So are medical records for people in Medicaid, Medicare, and the VA hospital system. Employment files for millions of federal employees including military personnel–secret. Public school teachers’ evaluations of our children–secret. Social workers’ judgments about clients–secret. Deliberations of government officials–regulators, legislators, judges–secret. Evidence gathered in criminal investigations never used at trial–secret. Trade secrets and other private information collected by courts and regulators–secret. Algorithms and policies used to decide who to audit and investigate, where to set up roadblocks or hide plain-clothes police officers–secret. Security arrangements in government facilities–secret.

All of this secrecy requires a “special justification,” of course. But so does disclosure. If the government discloses my financial records to The New York Times, it will be asked to provide a justification. Everything the government does needs a (“special”) justification.

Now, to be sure, there are varying levels of secrecy. Sometimes secrets can be discovered through litigation; sometimes they are disclosed for policy purposes; sometimes they are disclosed as a matter of course after the passage of time. Indeed, government secrecy is almost always temporary–sometimes lasting only weeks or months, sometimes lasting years. But as a matter of practice as well as formal law, most of what the government does is secret for the period of time during which it matters, and we seem quite comfortable with that fact.

How can the people “rule” when so much of what the government does is secret? There are several answers. One is that the people can make rough judgments about overall outcomes–the healthiness of the economy, the existence of war, etc.–and cast their votes on the basis of those judgments, without knowing the details of government action that produced them. Another is that because the government is itself composed of people, and those people are autonomous, secret actions that are highly controversial or objectionable are likely to be leaked, or even blocked before they are put into place. A third is that review systems are set up within government. Whether or not the right balance has been struck is a difficult empirical question, and not one that is answered by the slogans of the founders.

Minors illegally entering the United States and the Dream Act

unacc childrenThe New York Times reports an upsurge in the number of unaccompanied minors who are entering the United States illegally across the southwest border. I found the data here, and produced the graph above. The data are through May, and so for 2014 I indicate the actual number as well as an estimate through the end of the fiscal year.

What is the source of this wave of illegal migration? The obvious explanation, documented anecdotally in the Times article, is that people living in (mainly) Central America believe that the U.S. government will not deport minors, based on President Obama’s implementation of the Dream Act criteria and other immigration policies.

The administration blames rising crime rates in central America. But while Honduras remains a very dangerous place, homicide rates peaked in El Salvador and Guatemala years ago, and have been declining over the period in which the migration of unaccompanied minors to the United States rose.

Bond v. United States

 

The Supreme Court ducked the issue raised by this case–whether there are constitutional limits on the federal treaty power. I wrote about this case in Slate a while back. The question was whether a woman who tried to kill or harm her husband’s lover with some chemicals could be prosecuted under a federal statute that implemented the Chemical Weapons Convention. The majority doesn’t think that Congress intended the statute to reach ordinary criminal behavior–or won’t assume otherwise unless Congress is clear that it wants to disregard the normal division of police powers between federal government and states.

Justice Scalia (along with Alito and Thomas) think that the statute is clear (and maybe it is), and therefore the constitutional question cannot be avoided. And they think that the U.S. government lacks the authority to enter a (non-self-executing) treaty that regulates matters that fall within a state’s traditional police powers. (A self-executing treaty is presumably valid to the extent that Congress independently possesses the authority to regulate domestically.)

Why not? Because if the treaty power is unlimited, then the United States and Latvia could enter a treaty that requires each country to block people from carrying guns near schools. This is not my example but Scalia’s (no joke; see p. 13).

The United States and Latvia have not in fact negotiated such a treaty. Why not? Could it be that countries do not enter into treaties that regulate internal matters because they have no reason to do so?

Scalia does not identify any real treaty that he thinks the U.S. government entered into in order to evade constitutional limits on its powers. Surely, he doesn’t think that the federal government entered into the Chemical Weapons Convention so that it could prosecute people who attack each other with household chemicals.

The unstated target of the opinion is the international human rights treaty. Those treaties ban all kinds of police-powers-related stuff. The Senate ensured that they were not self-executing, but I suppose that the next time Democrats control the government, they could pass laws that implement them. At least in theory, a Democratic sweep could result in ratification of a human rights treaty that bans the death penalty, and then implementation of it through a federal statute. Not likely to happen anytime in the next few decades if ever, but you can’t fault Scalia for failing to think ahead.

Putin’s triumph in Crimea: implications for international law

As the dust settles on the Ukraine crisis, we should ask how it might affect our understanding of international law. Various  theories of compliance with international law must contend with the fact that Russia violated international law and got away with it.

No one has ever argued that countries never violate international law. The argument is always that if they do, they incur a cost above and beyond the costs inherent in the activity that constitutes a violation. Violation of the law itself brings with it special harms to the violator. Is that the case with Russia?

1. Retaliation? The West imposed sanctions on Russia but by all accounts those sanctions were trivial.

2. Reputation? It is possible that Russia’s reputation has suffered. Will countries now be less willing to enter treaties with it? Unfortunately, it is impossible to tell. But Russia recently entered a Eurasian Economic Union. The other two members don’t seem bothered by Russia’s law violations. Nor does China. Or even Germany.

3. Utility losses? Many theories, if taken literally, suggest that Russian officials, perhaps Putin himself, must have overcome reluctance to violate norms that they have internalized because those norms are fair, or network or conformity effects or some such thing exist. Any evidence for this? No, but also hard to imagine how we would find any.

It is simpler to recognize that international legal norms outstripped the interests of countries, and so there was no incentive to uphold them.

Did Putin blink?

Thomas Friedman sums it up:

Putin’s seizure of Crimea has weakened the Russian economy, led to China getting a bargain gas deal, revived NATO, spurred Europe to start ending its addiction to Russian gas and begun a debate across Europe about increasing defense spending. Nice work, Vladimir. That’s why I say the country Putin threatens most today is Russia.

Except that Russia’s economy was not weakened–the stock market was trading in the 1400s before the crisis and is trading in the 1400s today. The ruble is roughly unchanged, a hair lower. No one really knows whether China got a bargain or not; too much depends on unknown contingencies. But it is clear that Russia has benefited from closer relations with China. NATO hardly seems revived, the European countries are in turmoil and divided in their response to Russia, and as dependent on its gas as ever. Defense spending is not likely to increase, but even if it did, Russia would hardly care since it has no plans to invade Poland or Germany, and knows that they have no plans to liberate Crimea or provide military aid to Ukraine.

Against these trivial costs if that is what they are, consider Russia’s gains. It swallowed up Crimea in a flagrant violation of international law; it has ensured that the Ukraine government, whether nominally pro-Western or not, will give great weight to its interests; and, most important, it has sent a credible threat to all its neighbors that they will suffer if they  do not give deference to Russia’s interests, while making clear to the world that the West is weak and divided. Meanwhile, the establishment of the new Eurasian Economic Union is a “diplomatic triumph” for Putin, according to The Economist. And Western countries will seek a return to normalcy in their relations with Russia as quickly as possible, hoping that no one will remember Crimea.

Saying that Putin “blinked” is like saying that the boy who stole a cookie from a cookie jar blinked because he took only one cookie rather than all of them.

Presidential power and national security: the prisoner exchange

A nice illustration of the limits of congressional power. Congress passed the National Defense Authorization Act of 2014, which provided that if the president wants to transfer Guantanamo detainees to foreign countries, he must give Congress 30 days notice, so that it can raise a stink. The president refused to do so before the prisoner exchange since the negotiations took place in secret, and he could not afford the risk that even if he could inform Congress secretly, a leak would occur.

The transfer may have violated the substantive provisions of the statute as well. The statute provides that a detainee can be transferred only if he is no longer a threat to U.S. national security or the transfer is pursuant to a court order. But there was no such court order, and the five Taliban members who were transferred appear to be dangerous people. So much for the statute.

As Marty Lederman notes, the president paved the way with a signing statement that said that the law conflicts with “separation of powers principles.” A nice echo of the Bush administration, and a reminder that the imperial presidency is bipartisan.

The Executive Unbound: Climate edition

In The Executive Unbound, Adrian Vermeule and I argued that the Madisonian system of separation of powers has collapsed, and that the executive is mainly constrained by politics rather than law. The Obama administration has produced striking new examples–almost natural experiments, where it started by seeking a law from Congress then gave up and implemented the policy through executive fiat. First was the Dream Act, which would have legalized certain younger undocumented migrants. Congress refused to pass it, and Obama implemented it anyway by ordering ICE to comply with the rules that were never enacted.

And now it is climate. From the news sources I see, the EPA regulations to be announced Monday create the same kind of cap-and-trade system envisioned by the Waxman-Markey bill, which was also not enacted by Congress. The EPA regulations do not encompass as  wide a range of pollution sources as the bill did, but the legal authority behind them should give EPA the power to issue additional regulations that do just that.

Vietnam likely to join the Philippines’ legal action against China

A lot of puzzles here. China, the Philippines, and Vietnam are parties to the UN Convention on the Law of the Sea, which provides for arbitration in case of disputes under that treaty. The Philippines initiated an arbitration against China in 2013 over the Spratly Islands area. Vietnam now has signaled that it will join that arbitration. The overall goal seems to be to obtain an authoritative rebuke of China’s broad claims over the South China Sea.

China has refused to participate in the arbitration. It has not exercised its right to appoint one of the arbitrators. It declares the arbitration illegitimate. Yet it is bound to arbitrate under the treaty, and the arbitration can proceed without it, as Julian Ku explains. Sean Mirski, writing in The National Interest, argues that nonetheless China fears an adverse judgment:

Yet despite the case’s practical insignificance, China has been frantically—and unsuccessfully—trying to stop it from proceeding. In January 2014, Beijing reached new levels of desperation, and allegedly offered to withdraw its ships from Scarborough Shoal if the Philippines would delay filing its memorial in the case. While that proposal should be viewed with suspicion—after all, Beijing has reneged on deals relating to the shoal before—it is nevertheless an extraordinary offer if true: China was willing to give up control of territory over which it claims sovereignty just to avoid a bit of bad publicity. So while China won the battle for Scarborough Shoal, it may have lost the war, all because Manila was able to find something that Beijing valued even more than the territory: its reputation for complying with international law. To China, its reputation is intimately connected to its long-term growth strategy, and the country cannot afford to advertise its total non-compliance with international law.

We will see. What is odd is that China was free to opt out of compulsory jurisdiction under the UNCLOS. Unlike many other countries, it didn’t opt out when it ratified the treaty. Could it now? I assume so.

Update–It was pointed out to me that UNCLOS parties can opt out of compulsory jurisdiction only with respect to some disputes, and not disputes over EEZ boundaries, sovereignty over islands, and the other matters that are at stake in the South China Sea. China did opt out of the compulsory jurisdiction for the unrelated matters in 2006. So if it loses the arbitration, it can only disregard the judgment. It could also withdraw from UNCLOS.

China v. the Philippines

Philippines summons China's ambassador over South China Sea standoff

The New York Times published an article a few days ago describing the eviction of Philippine fishermen from the waters around Scarborough Shoal by the Chinese coastguard. This is yet another territorial conflict between China and its neighbors. China and the Philippines also dispute the nearby Spratly Islands.

The dispute over the Scarborough Shoal is a bit murkier than the others. Both China and the Philippines claim that they have exercised sovereignty over the area in various ways, going back decades. The Philippines seems to me to have the better argument but I have not looked at the materials closely. Otherwise, the fishing waters clearly fall within the Philippines Exclusive Economic Zone, as they lie within 200 nautical miles of the mainland (or technically the relevant baselines). Here is an academic article that, however, focuses on the Spratly Islands.

One question that arises is why China and its neighbors are suddenly having so many conflicts that are violent or near-violent. The conflicting territorial claims have existed for decades but violence has been sporadic until recently (aside from the China-Vietnam War). M. Taylor Fravel argues that China seeks to “consolidate” its claims by keeping other countries out of disputed areas. That would explain why China reacts aggressively–by sending in ships and planes–typically after the neighbors pass some law or take other actions that make clear that they consider their claims valid. But why are those countries provoking China in this way, and why now?

As Fravel suggests, China’s strategy is one of delay while claiming that the disputes are unresolved. The neighbors, by contrast, claim that there is no dispute and their claims are valid. China’s strategy thus seems more passive. And the reason is surely that time is on China’s side. China has grown more rapidly than all of its neighbors and looks likely to continue to do so for the near future, at least. As it becomes more dominant–both economically and militarily–its neighbors will be in a worse position to counter its claims in their shared waters.

Thus, it’s in the interest of those neighbors to settle the disputes sooner rather than later–so that they can establish populations and structures on, and acknowledged legal title, to these islands; plus to the minerals and fisheries. China will have difficulty dislodging claims backed by possession and variants of it even when it is considerably more powerful. The question of timing remains hard to answer, but it may be that only recently has it become obvious to the neighbors that China’s economic and military dominance will in the coming years allow it to prevail in any of its legal disputes, and so it is best to get those disputes settled sooner rather than later even at the risk of provoking military conflict.

Map and photo from The Telegraph.

The conflict between China and Vietnam: law and power

Earlier this month, China sent an oil rig to waters off the Paracel Islands in the South China Sea (upper left box on the map). Vietnam sent ships to intercept the oil rig, but they were repelled by Chinese naval vessels. In Vietnam, outraged citizens rioted, destroyed Chinese property, and killed some Chinese nationals. China has threatened unspecified sanctions against Vietnam, apparently moving troops to the border, while Vietnam has moved to bring the riots under control.

The Paracel Islands are within Vietnam’s 200 nautical mile Exclusive Economic Zone and on its continental shelf, so minerals in the area belong to Vietnam under the UN Convention on the Law of the Sea, which both Vietnam and China have ratified. What is the basis of China’s claims? In fact, China has never provided an official legal justification for its claims. Two scholars, Florian Dupuy and Pierre-Marie Dupuy (gated), who scoured Chinese sources have suggested the Chinese claims are based on “history”: that China has always controlled the South China Sea, or the islands that dot it. But, as they explained, this type of argument is not recognized under UNCLOS or traditional principles of public international law.

China has not backed down but instead seems to be considering economic sanctions against Vietnam, which is highly dependent on Chinese trade, much more than China is on Vietnam. See this graph.

A terrible decade for the Executive Branch in foreign relations cases before the Supreme Court?

That’s the conclusion of Ingrid Wuerth, writing at Lawfare. And she singles out Chief Justice Roberts as one of the main skeptics of an argument that I made with Cass Sunstein in 2007. We argued that courts should defer to the executive branch on issues touching on foreign relations, just as they do under Chevron and related doctrines in (domestic) administrative law cases. Our argument was normative, based on the executive’s responsibilities and expertise, but we argued that it was consistent with the cases (a widespread view at the time). Wuerth notes that over the last decade the Court  has discounted the executive’s views in numerous cases, including Kiobel, Morrison, Medellin, BG Group, and Zivitofsky, plus some early war-on-terror habeas cases.

All of this raises some interesting questions. One is whether the Court has in fact cut back on executive power or just hasn’t advanced it as much as the executive would like. A rule that the executive always wins is not the same as a rule of broad but not unlimited deference.

But assuming Wuerth is right, what’s the explanation? Some hypotheses:

1. The executive has lost prestige, thanks to its excesses against Al Qaeda, its failures in Afghanistan and Iraq, and perhaps even a perception that it has gone too far domestically.

2. The Court has gained confidence despite declining popularity, maybe because some aggressive decisions have not spurred pack-the-court style backlashes or because the executive and legislative branches are too divided to counter the Court.

3. The anti-executive tendency is the result of temporary partisan alignments. The Court was somewhat more liberal during the Bush administration and so perhaps uneasy with some of his policies; now right-wing justices are looking for ways to undermine Obama.

4. The justices share the public’s view that the U.S. should withdraw from many of its foreign commitments and turn inward. Weakening the executive is a step in that direction.

5. Originalism/formalism/textualism is in the air, and ( as scholars have long agreed) the modern system of executive power does not draw much support from the text of the Constitution or founding-era understandings.

The right to be forgotten

That’s the colorful term in Europe for the right to eliminate unwanted information about yourself on the Web. The European Court of Justice enforced that right Tuesday, holding that a Spanish data privacy authority acted properly to compel Google to remove from its search results links to old articles about a Spanish lawyer’s debt problems.

Jonathan Zittrian criticizes the ECJ’s ruling as being both “too broad” and “curiously narrow” because it could censor the republication of public records and because it does not force the newspaper that Google linked to do take down its own pages. But that’s because the ECJ endorsed a balancing test–your privacy interest versus the public’s interest. It sensibly recognized that people get their information about others by using search engines, not usually by looking back through newspaper websites. Search engines are a greater threat to one’s privacy, while newspapers shouldn’t be forced to respond to complaints about reports when they are just doing their job.

My argument can be found on Slate.

John McCain, Schmittian Humanitarian

It’s a new category in political philosophy. His proposal for rescuing the Nigerian girls, from the Kansas City Star (with my annotations):

‘If they knew where they were, I certainly would send in U.S. troops to rescue them, in a New York minute I would, without the permission of the host country,’ McCain said Tuesday. Referring to Nigeria’s president, McCain added: ‘I wouldn’t be waiting for some kind of permission from some guy named Goodluck Jonathan.’ [!!]

… McCain, the 2008 Republican presidential nominee, said the United Nations’ charter gives the United States, the authority to mount a military rescue of the girls. [Actually, no.]

‘It’s a crime against humanity to kidnap hundreds of young girls,’ McCain said [maybe]. ‘That gives any nation, if they can, the license to stop a crime against humanity [no it doesn't]. That’s the United Nations charter [no, it's not], not John McCain’s policy. It’s the same reason we should have, if we could have, gone in and freed the people of Auschwitz and Dachau.’

McCain said Obama shouldn’t worry about whether the Nigerian government would approve or disapprove of a U.S. military intervention into the country’s affairs. The president didn’t seek approval from Pakistan before he sent U.S. troops into that country to get Osama bin Laden.

‘I would not be involved in the niceties of getting the Nigerian government to agree, because if we rescue these people, there would be nothing but gratitude from the Nigerian government, such as it is,’ McCain said. [Like in Iraq, or maybe Afghanistan?]

And Obama shouldn’t worry about what the Senate and the House of Representatives would say if he exercised his authority as commander-in-chief and sent American troops into Nigeria.

‘If we rescued these young girls, an appetite for that?’ McCain said ‘It’d be at the high point of the president’s popularity.’ [Carl Schmitt would be proud.]

 

Reply to Coates’ Cost-Benefit Analysis of Financial Regulation: Case Studies and Implications

John Coates wrote a valuable paper criticizing the use of cost-benefit analysis for financial regulations. Glen and I have now written a response, which is posted on SSRN. We make six arguments:

1. The uncertainty of valuations–the major reason Coates cites for his opposition to financial CBA–is not an argument against CBA but a reason to support research to produce better valuations.

2. The “centrality” of the financial system, which for Coates is a reason not to use financial CBA, is in fact a reason for using it. The greater the impact of a proposed regulation, the more likely that an expensive CBA is cost-justified.

3. Against Coates, we argue that the focus on people (rather than things) does not distinguish financial regulation from other types of regulation.

4. Also against Coates, we argue that the speed with which financial markets change does not distinguish it from other types of regulation for which CBA is used (notably, antitrust regulation).

5. Ultimately, the objections that Coates raises to financial CBA are really objections to CBA (in general) or even regulation (in general). They are too broad to single out financial CBA.

6. Alternatives to CBA proposed by Coates–reliance on “expert judgment” or “conceptual CBA”–are either circular or not that different from CBA after all.

All that said, we share Coates’ skepticism about judicial enforcement of financial CBAs, and prefer instead to see development of institutional capacity in the executive branch.

Putin as the “Good Hitler”

I doubt that this Putin defender did Putin any favors by comparing him to the “good” pre-1939 Hitler.

The article attacked [a critic of Putin] as “hell-spawn” and suggested that if Hitler had only stopped in 1939, he would be considered a “good Hitler.”

“One should distinguish the difference between Hitler before 1939 and Hitler after 1939 and separate chaff from grain,” Mr. Migranyan wrote. If Hitler had stopped after the “bloodless” reunification of German lands, including Austria and the Sudetenland, with the mother country, “he would have gone down in the history of his country as a politician of the highest order.”

The analogy here is that Putin is merely unifying Russian lands and not invading foreign countries for predatory reasons, which makes him a great statesman rather than, um, a Nazi.

I have said before that I think that Putin is punishing Ukraine for turning west and in this way issuing a warning to other neighbors. This is realpolitik without ideology. The “good Hitler” view is that Putin is an ideologically committed nationalist who seeks to create a greater Russia. The views are not the same. The nationalist will want to purge Russia’s minorities as well, or at least give them second-class status (or I suppose third-class status to the extent their status is already second-class); and will want to annex Russian-dominated territories of even friendly countries. The pre-1939 Hitler was not good, of course; the Nuremberg laws and Kristallnacht were in the past, and invasion of Eastern Europe and enslavement of Slavs were always part of the plan. He created a dictatorship, slaughtered his political opponents, and bullied his neighbors. Hitler’s militant style of nationalism couldn’t stop at the borders of German-speaking lands. Maybe Russian nationalists too will want to settle Russians in other areas.

Whatever his intentions, Putin has unleashed this virulent, self-destructive style of nationalism. Let’s hope he can (and wants to) put it back in the bottle.

The Yugoslav wars: lessons for Ukraine

My former student Matthew Parish, an expert on the conflict in Yugoslavia, points out the parallels in a very good article. Does the West’s intervention in the Yugoslav civil war provide a basis for a more muscular intervention in Ukraine, or the opposite? That intervention, though late and halfhearted, ultimately restored peace, but it also exacerbated conflict in the short term and may have planted the seeds for further conflict in the long term. Bottom line:

Proxy wars are a common cause of ethnic conflict. Serbia stoked foment in Bosnia and Croatia, as part of a vision for an enlarged Serbia-dominated territory. Russia is intervening by proxy in Ukraine, through support for the militia of a so-called People’s Republic of Donetsk. … The suffering caused by proxy state aggravation of ethnic hostility is immense. Nevertheless the international policymaker must be realistic about what can and cannot be achieved through intervention. Ethnic hostilities, whether between Bosnian Muslims and Serbs, Russians and Ukrainians, or Sunni and Shi’a, once evoked become phenomenally hard to quell. In time the inter-ethnic violence they engender precipitates permanent political changes. Hand-wringing and ineffective western foreign policy instruments, such as sanctions and diplomatic isolation, matter little when weighed against the strategic goals mandated by the Realpolitik of the countries with real interests in the dispute.

This, at its heart, is the most compelling argument against western humanitarian intervention. Humanitarianism is a laudable motive, but no substitute for raw strategic interests. Absent genuine geopolitical interest in another country’s conflicts, the West should stay out of others’ civil wars lest it risks exacerbating them and contributing to chaos through elicitation of false hopes. This may be the most important lesson from the Balkan wars of the 1990s for the ethnic conflicts and civil wars infecting the world in 2014.

Why hasn’t NHTSA advised GM owners to park their cars?

Remember the scandal over the faulty GM ignition switch? If you believe Congress and the press, GM’s Ions and Cobalts are rolling death traps. I argued in Slate that the statistics show they are not. The incremental effect of the faulty ignition switch on the risk of getting killed in an accident is close to zero. Two members of Congress asked NHTSA why it hadn’t told people to stop driving the cars until they’re repaired. In response NHTSA explains:

gm recall

In other words, the cars aren’t dangerous. So to all appearances this really was a classic Kuranian-Sunsteinian availability cascade.

 

 

Who’s the hypocrite? South China Sea ed.

Map of South China Sea

Source: BBC

While all eyes are turned to Ukraine and Nigeria, China’s disputes with its neighbors continue to fester. The latest is the ramming of Vietnamese vessels by Chinese vessels in the South  China sea. China claims a big chunk of that body of water–meaning the unoccupied islands on it and the minerals underneath it. The U.S. argues, very plausibly (see map  above), that China’s claim violates the UN Convention on the Law of the Sea, which limits coastal countries to undersea minerals only a few hundreds of miles out rather than the vast distances that China claims. So do China’s neighbors–Vietnam, the Philippines, Malaysia. But the funny thing about the U.S. argument is that the United States itself never ratified UNCLOS, instead declaring some parts of it that it liked “customary international law,” not the rest. So who’s the hypocrite?

No one. Not China, not the U.S. The villain is UNCLOS itself,  which attempts to settle all the world’s maritime disputes in a single multilateral document. (Well, almost all; it punts a few of them.) The problem is that territorial and maritime disputes in different parts of the world are not susceptible to simple principles like equidistance lines and uniform territorial seas and economic zones. They are all local and contextual. And unlike domestic legislation, there is no practical way to amend and update it; it’s frozen in stone. The U.S. probably should ratify UNCLOS but little pieces of the treaty bother important constituencies and so the executive branch has reasonably announced its acceptance of the rules that are not controversial. China should probably not have ratified the treaty, which lays down rules inconsistent with its claims–the treaty not surprisingly favors countries with huge coasts like the U.S. unless, as in China’s cases, other landmasses lie a short distance away–but back in the 1990s it was intent on being a good citizen while it was accumulating power. Now the government has little choice but to selectively violate terms it can’t live with.

Here’s more on the topic.

The New World Order Is Dead

That is the (partial) title of a piece I wrote for Foreign Policy. Every so often I make this argument; it works better when the world seems to be crumbling around us. If the center holds, consider it a prediction. May be lurking behind a pay- or registration-wall.

The argument is that in the 1990s, it appeared that there was emerging a “new world order” characterized by (1) international tribunals (along with the Security Council), (2) human rights, (3) international criminal justice, and (4) free trade and foreign investment protection. This was a liberal order, which led to the question why non-liberal countries would comply with it. In the legal academy, all answers were suggested (“networks,” “internalization,” “naming and shaming” by NGOs, “fairness,” and so on) except the obvious one, which is U.S. power. Countries acquiesced in an order because they feared the consequences of dissent. Now that U.S. power is declining, all the pillars of the new order except trade are collapsing. Odd, too, how in retrospect all those scholars, acting entirely independently and in good faith, seem like the U.S. government’s in-house ideologists.

The U.S. Constitution is too hard to amend

Or so I argue in Slate, provoked by Justice Stevens’ proposal to amend the Constitution so as to reverse various losses he suffered when he served on the Court. Whatever you think of Stevens’ arguments, amendment just isn’t going to happen. There is an interesting question how exactly to measure “amendability.” Here is a good paper on this topic by Tom Ginsburg and James Melton. It is nonetheless clear that the U.S. is an outlier.

Justice Scalia’s counterideological snafu

How is it possible that Justice Scalia and his clerks missed the error in his statement that the EPA had tried to use cost-benefit analysis to justify the regulation at issue in Whitman? How did the other justices and their clerks miss it, too? The answer is that the mistake made no difference whatsoever to the legal analysis. It signifies nothing about anything except that people sometimes make mistakes.

One of the many ironies of the argle-bargle in the press and the blogs–aside from the several listed by Jonathan Adler–is that everyone gets the political valence of the mistake wrong. The narrative is that the mistake exposes once and for all what we knew all along: that Scalia allows his political biases (or even partisan biases) to guide his legal reasoning. But Scalia was objecting to EPA’s use of cost-benefit analysis–a decision-procedure normally favored by conservatives and loathed by most (although not all) liberals–when the statute (in his view) did not allow for it. Scalia’s preferred resolution of this case would have sent the regulation back to EPA for revision, it is true. But it would also have required EPA in the revised regulation to impose stricter controls at greater cost to industry.

Indeed, the majority makes just this point. In response, Scalia denies that his interpretation would lead to overregulation, but I confess I can’t follow his convoluted reasoning. If the EPA, wielding cost-benefit analysis, chose the most efficient regulation, then any other regulation must by definition be less efficient (or I suppose equally efficient, which I think is Scalia’s limited claim, but that also seems quite unlikely). If downstream states are going to reach attainment at higher cost to upstream states, then this cost will be passed on to industry in upstream states. Because statutes are written in broad terms and directed at reducing harmful activity, CBA typically leads to less regulation than that required by a literal interpretation of a statute, not more. That’s why liberals have traditionally been hostile to it.

EPA v. EME Homer City Generation: a cost-benefit presumption?

Many years ago, Cass Sunstein wrote a paper called Cost-Benefit Default Principles, which argued that regulatory agencies are free to use cost-benefit analysis when statutes are ambiguous. EPA v. EME Homer City Generation seems to confirm this thesis, but arguably goes beyond it, at least if you accept Scalia’s argument that the text is clear and clearly forbids EPA to take account of cost. The case may instead stand for the existence of a stronger cost-benefit presumption that entitles a regulator to use cost-benefit analysis unless Congress explicitly forbids it to. Thus, a “gap” is not needed. The justification would be that Congress ought to direct regulators to take account of costs, perhaps that cost-benefit analysis is a quasi-constitutional commitment, so statutes should be “interpreted” as much as possible to avoid conflicting with this commitment.

Cost-benefit analysis as a constitutional commitment, quasi- or other? Could there be a justification for such a claim? Possibly. Consider the longstanding worry that the New Deal regulatory state gave excessive discretion to regulators, and the defunct efforts to rein them in with the nondelegation doctrine. Scalia’s insistence on deferring to the text, however loopy the text might be, is one possible response, but a more realistic one, I think, is rather to confine regulators’ discretion by insisting that they use cost-benefit analysis. The Court did not go quite so far, but took a step in that direction.

Ukraine and the International Criminal Court

Ukraine has asked the ICC to investigate whether the government of President Viktor Yanukovich committed crimes against humanity from November 2013 until the collapse of his government in February. Although Ukraine has not ratified the Rome Statute (and may indeed not be permitted to under its constitutional law), it has take advantage of a provision of that treaty that allows the ICC to investigate crimes in non-member countries that request its aid.

Ukraine should be careful what it wishes for. If the ICC takes the case (which, for various technical reasons, it may not), Ukraine might find itself in a position similar to that of Uganda. Uganda also referred its conflict with a rebel group, the Lord’s Resistance Army, to the ICC, which accepted jurisdiction. But when Uganda tried to settle the conflict under its amnesty law, the ICC refused to withdraw arrest warrants it had issued. Critics now blame the ICC for prolonging the war. Whatever the merits of their criticisms, the Ugandan government is certainly unhappy with the ICC, calling it a tool of imperial powers. For a damning indictment of the ICC’s involvement in Uganda, see this piece by Adam Branch (who also argues that the ICC has helped legitimate Uganda’s repressive government by agreeing to investigate only the rebels).

Similarly, if the ICC gets involved in Ukraine, and issues arrest warrants against Yanukovich and/or his supporters or members of his former government, the Kiev government may be unable to offer terms of settlement that the other side will agree to, while angering the Russians and for that matter everyone who wants to see the conflict end. Here’s betting the ICC will say “thanks but no thanks.”

 

Conspiracy Theories & Other Dangerous Ideas by Cass Sunstein

There is much of interest in this excellent new book by Cass Sunstein. The preface contains a defense of the different roles of the academic–to challenge conventional wisdom–and the public official, who must often keep his opinions to himself for the sake of operating in a team. People like Sunstein who move between academic and public roles face numerous challenges–both from the public, who see in the academic writings evidence of ideological extremity and from (naive) colleagues, who expect the advocate of (impractical) X to champion it public life even if it would bring down the ship of state. These divergent reactions are difficult to handle; few people handle it as gracefully as Sunstein has. A whole book could be written about those less graceful individuals, many of them also law professors, who traveled between law schools and various recent presidential administrations.

A few comments on Chapter 1, on conspiracy theories, which has received outsized attention:

1. Are conspiracy theories important or are they just little clumps of seaweed in the vast and bottomless ocean of public ignorance?

2. I can’t help thinking that there would be even more conspiracy theories ruining public life if people heeded calls from academics and politicians to become more involved in political debate.

3. Can “cognitive infiltration” (an unfortunate choice of words, I think, with its unnecessary sinister overtones) really work? The idea is that anonymous government agents could penetrate chat rooms and answer craziness with reason. But conspiracy theories seem to answer a deeper need than the desire for truth. N.B.: I suspect that government officials, on their own time, and not as part of formal programs, already do this, leading one to wonder how often Man-Who-Was-Thursday scenarios erupt in these chat rooms.

Like everything Sunstein writes, this book is well worth your time.

Paroline v. United States

A good case for a class on remedies, it features an unusual harm. “Amy,” a victim of child pornography, is emotionally traumatized when she learns that thousands of people view images of her on the web. Paroline is one of those people, and she seeks restitution from him. It’s not entirely clear to me that he even contributed to the harm, but if he did, determining how much money he should pay her on account of that contribution is a challenge. What is unusual about Amy’s injury is that it requires a large number of contributors but above a threshold additional contributors do not increase the harm. Some thoughts on the case at Slate. There is a good academic paper on the topic, making a similar argument, by Jenna Sheldon-Sherman.

Anne-Marie Slaughter: How to save Ukraine

First, attack Syria (?):

It is time to change Putin’s calculations, and Syria is the place to do it…. Equally important, shots fired by the US in Syria will echo loudly in Russia. The great irony is that Putin is now seeking to do in Ukraine exactly what Assad has done so successfully: portray a legitimate political opposition as a gang of thugs and terrorists, while relying on provocations and lies to turn non-violent protest into violent attacks that then justify an armed response.

Second, send covert U.S. troops into Ukraine:

Putin may believe, as Western powers have repeatedly told their own citizens, that NATO forces will never risk the possibility of nuclear war by deploying in Ukraine. Perhaps not. But the Russian forces destabilizing eastern Ukraine wear no insignia. Mystery soldiers can fight on both sides.

Why would this work?

Putin … measures himself and his fellow leaders in terms of crude machismo.

Then maybe a hot-pepper eating contest between Putin and Obama would do the trick?

That’s all I can think of to say. Or you could read Robert Golan-Vilella.

How many ways can a Supreme Court justice say nothing at all?

From Justice Kennedy in Paroline v. United States:

1. A “court should order restitution in an amount that comports with the defendant’s relative role in the causal process that underlies the victim’s general losses.”

2. “The required restitution would be a reasonable and circumscribed award imposed in recognition of the indisputable role of the offender in the causal process underlying the victim’s losses and suited to the relative size of that causal role.”

3. A “court must assess as best it can from available evidence the significance of the individual defendant’s conduct in light of the broader causal process that produced the victim’s losses.”

4. A court should “set an award of restitution in consideration of factors that bear on the relative causal significance of the defendant’s conduct in producing those losses.”

Putin’s grand strategy

File:Vladimir Putin - 2006.jpgThere has been a lot of loopy speculation about Putin’s motives, much of it based on conjectures about his psychological makeup. Some people think he is irrational. Another view, which is more plausible, is that he acts tactically in response to short-term opportunities but has no strategic vision. But this view is wrong as well. There is a simple, parsimonious explanation for Putin’s actions.

Putin sees the United States as a rival, not as a “partner,” and seeks to advance Russia’s interests by ensuring a sphere of influence around the Russian homeland. He has taken advantage of the fact that most of Russia’s neighbors have substantial ethnic Russian populations and, among these countries, most are poor and badly governed, except Estonia and Latvia. This means that Russia can, at low cost and risk, stir up unrest in these countries by encouraging the Russian populations to express separatist ambitions. It follows that countries without significant Russian minorities (like Finland) or are powerful (like China) have little to worry about. Russia today is not the Soviet Union; Poland (a non-neighbor with a tiny Russian population) has nothing to fear.

Putin is not interested in conquering his neighbors, which would be difficult to rule. He just wants them to be in Russia’s orbit. And so his strategy is to punish any neighbor that shows excessive pro-western inclinations by sowing disorder among the Russian speaking population. That is the story of Georgia and Ukraine. Russia would never have bothered annexing Crimea if a pro-Russian government remained in place in Ukraine. Where governments cooperate with Putin (Kazakhstan and Belarus), Putin does not trouble them.

This strategy is a less ambitious version of the Soviet Union’s strategy, and also not much different from what the United States did during the cold war, in places like Cuba and Nicaragua. It’s perfectly logical, and also likely to succeed because a big country cares more about its neighbors than other countries do, and can exert influence over them more easily than other countries can.

The implications for the West are also clear. It needs to decide whether the benefits of attracting Russia’s neighbors into the Western orbit are worth the risks of disorder that result from Russia’s retaliation. The bottom line, I fear, is that places like Georgia, Ukraine, and even Estonia are not important enough, in the long run, for the West to warrant conflict with Russia when Putin can stir up disorder at such little cost to the Russian treasury. Governments in those countries should do everything they can to appease their Russian populations so that they are not responsive to irredentist appeals from the Kremlin.

It seems to me that in the future the biggest problems will be Estonia and Latvia. Both are little countries with big Russian populations. Both are also NATO members, so the West is committed to defending them. Everything should be done to ensure the Russian minorities in those countries will be unresponsive when Putin starts stirring up trouble.

The Lewisization/Gladwellization of social science

Lewisization and Gladwellization are synonyms for abuse of social science in the service of readability, or what one might prefer to call narrative-arcification. Lewis’ Flash Boys is the latest and most damaging because, while the book hovers around a real problem in financial markets related to high-frequency trading, it doesn’t identify it clearly or explain the need to regulate–indeed, one could finish the book thinking that the market cured itself.

I wanted to write about this but I can’t improve on Felix Salmon’s sparkling review and blog posts. I made an argument similar to Salmon’s in this piece written with Glen Weyl, but you can’t do better than read Salmon.

Is GM “hiding behind bankruptcy”?

This claim, which appears in many news articles, should sound strange to a bankruptcy lawyer. Owners of defective cars manufactured before GM’s bankruptcy in 2009 have claims again Old GM, which no longer exists, not New GM. In fact, as is standard in large corporate bankruptcies, a new entity was created, a pot of money that victims of Old GM can sue. That entity is called Motors Liquidation Co. I don’t know the details, but it appears–and this is standard–that some of Old GM’s assets were put in ML, so that victims who discover themselves as such post-2009 can collect damages against somebody. Of course, those victims (probably) cannot collect 100 cents on the dollar, but that is always what happens in bankruptcy.

Old GM’s shareholders were wiped out; New GM’s shareholders are Old GM’s creditors or people to whom those creditors sold their shares. There is no reason to hold any of these people liable for the sins of Old. An easy way to think about this is to imagine that Old GM had been liquidated, its Ion and Cobalt factories sold to investors. It would make no sense to make those investors liable for defects in cars manufactured in those factories before they bought them.

But this creates an odd situation. New GM might inspect its records or receive complaints and realize that those old Ions and Cobalts are defective. Does it have an obligation to alert the owners of cars manufactured by some other company (that is, Old GM)? To fix the cars? It appears that some such obligation exists in federal regulatory law. There is an interesting question here what would happen if GM had been liquidated and these lines of cars discontinued, and its assets divided among multiple companies. I suppose in such a case, no one would bear the obligation to recall and fix. Such a rule would make liquidation more attractive to creditors than reorganization, all else equal, which is not a good thing.

So what of the claim that New GM is hiding behind bankruptcy law? Maybe the argument is that New GM delayed the recalls because any fines levied on it by NHTSA would be minimal, less than the cost of fixing the cars, while tort liability is zero thanks to the bankruptcy. This wouldn’t surprise me. But it seems like a hole in the law that Congress should patch, and the way to patch it is not self-evident–again because burdening new firms with liabilities arising from the activities of predecessors will make reorganization unattractive relative to liquidation. It is not clear that that New GM has acted in a blameworthy fashion by minimizing its responsibility for liabilities that belong to Motors Liquidation.

Can Russia oppose U.S. bank sanctions through the WTO?

The Russian government is mulling it over (or pretending to):

“The WTO gives us some additional possibilities,” Ulyukayev was quoted by Interfax as saying on Wednesday. “We at the WTO council in Geneva talked about the possibility of filing lawsuits against the U.S. over the sanctions against Russian banks and we hope to use the mechanism of the WTO to keep our partners in check regarding this issue.”

I know little about this topic so I emailed a colleague who had this to say (I edit slightly):

There is the purely doctrinal question whether the sanctions can be interpreted to contravene some GATS banking commitment by the US respecting market access or non-discrimination.  Even if yes, and I do not know the answer, there is still Art. XIV bis on national security exceptions that applies for measures to protect “essential security interests” in “war or other emergency in international relations.”  That arguably applies although there is no case law.  Add that a WTO case would take three years, by which time all of this is presumably old news anyway.

The broader question of to what extent sanctions can be used under WTO law has received some attention, but is of dubious practical significance.  We have embargoed Cuba (a GATT member) for 50 years.  No one worried much about GATT during apartheid in South Africa, either.

Russian stock prices, Jan.-Apr. 2014

russia stock market 2This year is the 105th anniversary of the publication of Norman Angell’s The Great Illusion, which argued that states act against their self-interest by going to war. While its timing was poor (the book was published in 1909), the argument is actually ingenious: Angell argues that if Germany conquered England, it would simply deprive itself of a debtor and trading partner, while obtaining in return only some minerals, the Elgin marbles and a few other treasures, and an unhappy population. Germany would do far better for itself by instead continuing to trade with England.

People are now making exactly the same argument about Russia. Because the economy of Russia depends on an export market for its oil and on foreign investment, and a few slivers of Ukraine will most likely be a burden rather than a benefit, Russia’s self-interest should direct it to leash the dogs of war. But the graph above suggests that there is less at stake for the Russian economy than might first appear.

Dignity as a Value in Cost-Benefit Analysis by Rachel Bayefsky

This very good student note examines how “dignity” has played a role in regulatory impact assessments produced by regulatory agencies. President Obama’s executive order 13,563, which renewed a longstanding requirement that regulators conduct cost-benefit analysis of major regulations, famously introduced a new provision allowing  regulators to consider the effect of a regulation on “human dignity.” Implicitly, at least, regulators were thus authorized to issue a regulation that fails a formal cost-benefit test if it advances this value. (I briefly discuss the order here.)

Many commentators worried (or hoped) that the human dignity requirement would allow regulators to issue expensive rules that failed cost-benefit analysis. Couldn’t the EPA, for example, say that pollution of all types send people to hospitals, where they undergo procedures that violate their dignity? Or could the Department of Transportation impose expensive new safety requirements on cars because people who are maimed in accidents lose their dignity? In fact, Bayefsky cites an EPA analysis that suggested that a pollution regulation would be justified in order to avoid or minimize the indignity of a protracted death “involving prolonged suffering and loss of dignity and personal control.” If such a step were to be taken, there would be little left of cost-benefit analysis.

Yet there are numerous regulations that seem to advance values relating to dignity where the benefits would be hard to quantify. Bayefsky provides a number of examples: regulations that increase access to facilities like bathrooms to people with disabilities (who might otherwise need personal assistance), reduce the incidence of prison rape, and protect patients’ health information. Can the “dignitary” benefits associated with these regulations really be monetized?

Bayefsky says no. I suspect the answer is yes, at least sometimes. The paper is well worth reading for anyone interested in this topic.

(The image is from Wikipedia.)

The “civil war” in Ukraine

From Bloomberg:

“Blood was spilled once again in Ukraine,” Russian Prime Minister Dmitry Medvedev said on Facebook today. “There’s a sense in the country that a civil war could break out.” Putin “is getting many requests” from eastern Ukraine “to intervene in one way or another,” his spokesman, Dmitry Peskov, told reporters yesterday.

It’s significant that Medvedev invokes “civil war.” No civil war exists in Ukraine–there is a bit of unrest, possibly a near-insurgency. But if a civil war did exist, it would help pave the way for a Russian intervention. Strictly speaking, foreign countries are supposed to stay out of civil wars under international law. But, in practice, they never do. If Russia does intervene, Putin will be sure to cite U.S. involvement on the side of the rebels in the Syrian civil war. An even better precedent is U.S. aid to the Contras in Nicaragua in the 1980s, where the U.S. played a facilitating role similar to Russia’s in Ukraine.

Still, if and when a civil war breaks out, it will break out in large part because of Russian encouragement and indeed leadership, so we will need to put into the category of “hubris” any future Russian argument that it must intervene because a civil war has broken out in a neighboring country. Yet if that happens, it will increase Russia’s bargaining power with the west, because Russia is in the best position to broker, monitor, and enforce a peace agreement between Kiev and the “rebels.”

 

Reply to my post on Social Security overpayments, and a reply to the reply

A former student who works for Social Security responds to yesterday’s post:

I read your blog post today on Social Security overpayments and wanted to respond briefly (in my personal capacity, of course, and so my opinions don’t necessarily represent Social Security’s official policy on the matter). I think you’re seriously mistaken about the source of the agency’s claim to recoup alleged overpayments. Rather than a common-law argument of unjust enrichment, the Social Security Act and implementing regulations offer specific authority to collect overpayments using a variety of methods, including tax refund offsets.

The source of authority for collecting overpayments from claimants who received Title II benefits lies in Section 204 of the Social Security Act (codified at 42 USC 404). That statute allows Social Security to prescribe regulations to implement the overpayment process. 20 CFR 404.502 details the specific means by which the agency may collect overpayments. 20 CFR 404.502(b) covers situations when the individual overpaid dies before the adjustment is made, and 404.502(b)(3) specifies that such adjustment can be made by “withholding a lump sum or monthly benefits due any other individual on the basis of the same earnings which were the basis of the overpayment to the deceased overpaid individual”. In the case of the Post story, both Sadie Grice and Mary Grice were entitled to benefits based on the father’s earnings record (some combination of widow’s benefits, mother’s benefits, or child’s benefits, I would guess, though I don’t know for sure and have no personal knowledge of the case other than what’s in the Post article). Therefore, 404.502 would arguably allow collection of the overpayment from Mary because she received benefits on the same earnings record as Sadie did, and Sadie was mistakenly overpaid. 20 CFR 404.520 then permits the overpayment to be referred to the Treasury if the debt is certain in amount, past due, and legally enforceable, for a tax refund offset.

If the benefits in question were child’s benefits that Mary was entitled to solely because she was a minor child of an insured individual (20 CFR 404.350), that’s her entitlement, not her mother’s even though her mother acted as her representative payee because she was 4 years old when she gained the entitlement. I’m a little more unclear on how it would work if Sadie was receiving mother’s benefits (20 CFR 404.339) because of the minor children, but that presumed she wasn’t entitled to widow’s benefits in her own right. In any case, while the propriety of trying to collect such old debts is arguable and the agency should certainly be held to prove the overpayment occurred on the stated earnings record in the specified amount, I feel certain the agency is not relying on a common-law theory of unjust enrichment to do so.

Point taken, but I still believe that this program would not be upheld in court (and perhaps the author of the email agrees in part). I haven’t look at the regulations, but the regulations must be consistent with the statute, and 42 USC 404(b) contains this provision:

In any case in which more than the correct amount of payment has been made, there shall be no adjustment of payments to, or recovery by the United States from, any person who is without fault if such adjustment or recovery would defeat the purpose of this title or would be against equity and good conscience. In making for purposes of this subsection any determination of whether any individual is without fault, the Commissioner of Social Security shall specifically take into account any physical, mental, educational, or linguistic limitation such individual may have (including any lack of facility with the English language).

So the common law (or technically, equity) is relevant after all. And this means, among other things, the doctrine of laches would apply (even if Congress has suspended the statute of limitations); and equity would frown on (as they say) recovery from Mary on account of payments that Sadie may not have no turned over to her, may have spent on herself or the other kids, and so on. Clearly, as a four-year old, Mary was without fault; and the last sentence of the provision would seem to further strengthen her argument. Finally, consider again the policy of going after the oldest child alone for overpayments that benefited all the children if at all; this too is not explicitly authorized by the statute, and would, I am fairly certain, not be considered equitable by a court.

Can the government recover from children on account of Social Security overpayments to their parents?

According to a report in the Washington Post, the government does just that.

A few weeks ago, with no notice, the U.S. government intercepted Mary Grice’s tax refunds from both the IRS and the state of Maryland. Grice had no idea that Uncle Sam had seized her money until some days later, when she got a letter saying that her refund had gone to satisfy an old debt to the government — a very old debt.

When Grice was 4, back in 1960, her father died, leaving her mother with five children to raise. Until the kids turned 18, Sadie Grice got survivor benefits from Social Security to help feed and clothe them.

Now, Social Security claims it overpaid someone in the Grice family — it’s not sure who — in 1977. After 37 years of silence, four years after Sadie Grice died, the government is coming after her daughter. Why the feds chose to take Mary’s money, rather than her surviving siblings’, is a mystery.

If, as I think, the government’s claim is based on common law principles (as opposed to specific statutory authorizations), it’s claim is probably invalid. The issue is not the age of the claim–as the article notes, Congress eliminated the statute of limitations for government claims of this sort. Nor is this a case of a child inheriting the debts of a parent. In a way, this is a run-of-the-mill unjust enrichment case. Consider this simplified version.

The government overpays Sadie on account of her Social Security benefits. Sadie, unaware of the error, cashes the check and gives the proceeds to Mary. Neither knows of the error. The government is entitled to obtain restitution from Sadie or Mary.

Putting aside the time lag, this is our case. But there is a problem for the government. It has no evidence that Sadie spent the money on Mary, as opposed to her other children, or for that matter on herself. (Maybe the law required Sadie to spend the money on her children, but if she didn’t, the government has a (defunct) claim against Sadie, not against the children.) According to the Washington Post:

The government doesn’t look into exactly who got the overpayment; the policy is to seek compensation from the oldest sibling and work down through the family until the debt is paid.

I can almost imagine why this crazy policy was (presumably) approved by government lawyers. If you have a valid restitution claim against multiple people, you can go after whoever you want; you don’t have to go after all of them. The purpose of the payments was to benefit the children, and so overpayment would have benefited all of them, if it was spent on them. And so if it’s easiest to start with the eldest sibling, that’s a policy judgment that is consistent with the law.

But under the principles of unjust enrichment, the government needs to prove that Mary actually received money from Sadie, or that the money was spent on her in a way that made her better off. It can’t.

More Than You Wanted to Know

bookjacketHave you read your iTunes contract–the one that Apple asked you to read and accept before using the service? No? Neither have I. It’s 55 pages long. How about the mortgage disclosures that accompanied your last refinancing? In Illinois, you would need to read 49 disclosure forms spread out over 101 pages. When I refinanced my mortgage, the huge stack of disclosures induced a faint bout of nausea but no wisdom. A professor who teaches contract law and banking law, I quickly gave up trying to understand what I was reading.

The law overflows with disclosure mandates even though it is pretty obvious to everyone that they hardly do any good. Instead, they confuse and frustrate buyers. In this terrific book, Omri Ben-Shahar and Carl Schneider exhaustively describe this phenomenon. Mandatory disclosure is law’s biggest and phoniest panacea, as they amply demonstrate.

The appeal of mandatory disclosure laws is easy to understand. They seem like a good way to protect buyers without interfering with the seller’s power to choose terms that protect its interests–an early form of “nudge.” And while in certain circumstances they can do good, they more often cause the seller to game the system by reducing quality along dimensions that the disclosure mandate does not cover, leading the government to force the seller to disclose more and more. The upshot is that consumers are overwhelmed with information they can’t understand.

In a kind of infinite cycle to hell, courts strike down contracts because buyers can’t pick out a key term among the Borges’ library of information, and sellers protect themselves by pointing out the most important terms and demanding that buyers initial them. I can’t remember how many terms I was required to initial in my mortgage but it was surely dozens. (I didn’t read any of them as an act of defiance and self-preservation.) Eventually, people will be required to initial every sentence of 100-page contracts and be required to take exams that test their understanding before being allowed to go home with their toaster or space heater. We will understand every last detail of everything we buy but have no time to use it.

Originalism: my dialogue with Will

Below are links to posts written by me and Will Baude while we co-taught our seminar on originalism.

Date Author Title and Link
January 7 Eric Posner Originalism Seminar Class 1:Heller
January 8 Will Baude Heller as an Advertisement for Originalist Methodology
January 10 Eric Posner Originalism: History vs. Law
January 14 Will Baude Printz, Commandeering, and the Federalist
January 14 Eric Posner Originalism Class 2: Printz As A Paean To The Living Constitution
January 21 Eric Posner Originalism Class 3: Precedent
January 22 Will Baude Precedent is not a threat to orignalism
January 29 Will Baude Does originalism justify Brown, and why do we care so much?
January 30 Eric Posner Originalism Class 4: Brown
January 31 Will Baude Originalism, the bear principle, and the reading of entrails
February 2 Will Baude Originalists need not be naïve perfectionists
February 3
Eric Posner Response to Will’s Response to my Class 4 Comments
February 5 Eric Posner Originalism Class 5: Noel Canning
February 6 Will Baude Recess appointments and the size of government
February 6 Eric Posner Reply to Will on Noel Canning
February 6 Eric Posner Originalism and precedent: Baude v. Sunstein
February 7 Will Baude Originalism, false dichotomies, and the question of who decides
February 12 Will Baude Reasons for being an originalist
February 12 Eric Posner Class 6: Reasons for being an originalist
February 14 Will Baude Originalism in our legal culture: The case of the Ground Zero mosque
February 19 Eric Posner Originalism Class 7: The Evolving Constitution
February 19 Will Baude Originalism and Its Critics: The Critics’ Turn
February 27 Will Baude Originalism and ‘Accounting for Change’
February 27 Eric Posner Originalism Class 8: Accounting for Change
March 3 Will Baude Originalism and the rule that government actors don’t change the Constitution
March 5 Eric Posner Is there a rule that government actors don’t change the Constitution?
March 6 Will Baude When a change in constitutional practice is legally invalid
March 6 Eric Posner Originalism Class 9: Between Phony and Naive
March 7 Will Baude Originalism: the theory and the politics

Is the GM recall scandal an “availability cascade”?

I have dug deeper into the numbers and have found nothing to cause me to change my mind about my conclusion yesterday that GM may well have acted reasonably, and certainly that it is premature to conclude that it acted in a scandalous, criminal, or unreasonable fashion. A student of mine produced this spreadsheet, which makes clear that GM’s culpability depends on how soon it understood the problem. If within the first few years, then yes. If after 5 or 6 years, then probably not. (Her spreadsheet is based on my assumptions from yesterday, which are–caveat emptor–possibly dubious, plus she extends the time frame out another 10 years to consider cars manufactured just before the recall. She also treats this as an NPV exercise based on expected tort liability rather than a cost-benefit analysis but the conclusion would be the same assuming that the assumed tort awards reflect statistical valuation of life.) Until it is clearer who knew what when, one cannot determine whether GM acted wrongfully (in the sense of causing harm to people; it’s impossible to deny that their cars are crappy however safe they may be). I’m afraid it probably won’t be clear for years, until after lawsuits and investigations are concluded.

Cass Sunstein and Timur Kuran wrote a fine paper in 2007 that discusses regulatory panics based on what they call “availability cascades”–where some high-profile corporate misfeasance that feeds into people’s anxieties causes an enormous scandal despite no evidence that it harmed anyone. The most famous case is Love Canal, which harmed no one. Another is Alar. Also read this paper on the  Ford Pinto scandal by Gary Schwartz.The Pinto case was another regulatory panic where fears greatly outstripped the real harm and wrongdoing. The common elements in all these examples are (1) sympathetic victim groups who effectively work the media, (2) opportunistic politicians and commentators, and (3) lazy journalists.

The GM scandal: a little math

The House Committee on Energy and Commerce is holding a hearing on whether GM delayed too long before recalling cars with defective ignition switches. It was revealed at the hearing that the cost of the replacement part is only 57 cents, and this has led to calls for the heads of those responsible. This, from Michael Moore, is typical:

I hope the criminals at General Motors will be arrested and made to pay for their premeditated decision to take human lives for a lousy ten bucks. The executives at GM knew for 13 years that their cars had a defective ignition switch that would, well, kill people. But they did a “cost-benefit analysis” and concluded that paying off the deceased’s relatives was going to be cheaper than having to install a $10 part per car.

The $10 figure is from a Washington Post article; the 57 cent figure can be found in other sources.

I was curious about whether it is true that GM’s decision to install the switch (rather than replace it with a better switch) or not to recall the car in 2007 really would have failed a cost-benefit analysis. Here are some back-of-the-envelope calculations, based on (still murky) details from a House report and newspaper stories.

Let’s suppose that back in 2005, which was the model year for the first car with the ignition switch problem, GM knew that it would install that switch in 2.6 million cars (the eventual number that would be recalled). Those cars were sold over the next 9 years. If we assume a constant number of cars sold per year, we get 290,000 cars sold per year. A little additional math shows that this amounts to 13,050,000 car-years, by which I mean the number of years in which a car with the ignition switch was owned and driven by someone.

During this period, the switch problem caused accidents that caused 13 deaths, or 0.000001 death per car-year. It is worth noting parenthetically that the probability of an average person in an average car being killed in any year is 0.0000556. So the effect of buying a GM car with an ignition switch problem increased the risk from 0.0000556 to 0.0000566.

Still, no one wants to take an unnecessary risk of death, however small. But how much would you be willing to pay to reduce the risk of dying from a car accident by 0.000001 in one year? One way to get the answer is to use the U.S. government’s valuation of a statistical life, which was around $6 million when these decisions were made. (That number is based on data that measures how much people are willing to pay to avoid very small risks of death, as in our example.) Another is to look at tort awards, which at the time averaged about $3 million for deaths. Let’s call it $4.5 million. And assume that the average buyer drives the car for 10 years. Multiplying these numbers together, a person should be willing to pay about $45 to avoid this risk of death ($4.5 million * 0.000001 per year * 10 years).

Now if GM could have fixed the problem by using a 57 cent or $10 switch at the time of manufacturing, it should have. But it appears not to have recognized the problem until most of the cars were on the road. The Washington Post says that repairing the car would take less than an hour. Let’s call it half an hour, and assume $100 per hour in labor costs, which is roughly consistent with the CEO’s testimony that it would have cost GM $100 million to  recall the 2.6 million cars on the road. If all this is true, the decision not to recall–saving $50 to avoid an expected cost of $45 per car–seems reasonable, although as we have seen the proper measurement of a loss of life is controversial. The bottom line is that GM could very well have complied with a reasonable cost-benefit analysis; if not, it was probably close. To know the truth, we need more data than are publicly available. So why the headlines? (That’s a rhetorical question.)

Are my calculations or assumptions wrong? If you see an error, please contact me here.

Chutzpah award, Ukraine edition

Alexei Miller, the head of Gazprom, has explained that the reason for raising gas prices for Ukraine is in part that Ukraine no longer is entitled to discounts that it received in return for leasing the Black Sea fleet base. According to Bloomberg:

In Kharkiv in 2010, Ukraine agreed to extend Russia’s lease to the Black Sea Fleet base in Crimea from 2017 to 2042 in exchange for cheaper gas. Russia has no need for the accords after the peninsula’s accession, Prime Minister Dmitry Medvedev said last month, calling for Ukraine to pay about $11 billion lost to Russia’s budget.

Of course, the lease is void because Russia now owns Crimea! The original purpose of the contract has been frustrated, as a contract lawyer would say. You can’t lease property from yourself. But shouldn’t Russia compensate Ukraine for the loss of a chunk of its territory, if we’re going to be legalistic about this? (Miller’s better argument is that Ukraine forfeited its discount by failing to pay prior debts.)

Joseph Blocher and Mitu Gulati argue that Putin should have bought Crimea rather than taken it:

Perhaps if Mr Putin had negotiated to buy Crimea instead of taking it over, Ukraine could have negotiated for both debt relief and multiple years of cheap gas in exchange. Russia might even have helped the current Ukrainian government track down some of the funds that the members of the prior government supposedly absconded with. On the flip side, there would not have been any need for all the chest beating, troop movements, and so on. And the international community surely would’ve been more likely to bless the result—a result for which Russia might be willing to pay some premium.

But why pay for something that you can take for free? Anyway, the chest beating seems to have been the major benefit for Putin. And if a sale was really in everyone’s interest, there is nothing in international law that would have blocked it.

The IPCC report and climate justice

As the magnitude of the harms from climate change becomes clearer, poor countries have redoubled their efforts to achieve “climate justice”–large sums of money from rich countries, at least $100 billion, to compensate them for the harm caused by climate change. As the New York Times puts it,

Countries like Bangladesh and several in sub-Saharan Africa that are the most vulnerable to the effects of climate change say the report strengthens their demand for “climate justice” — in other words, money, and plenty of it — from the world’s richest economies and corporations, which they blame for the problem.

But there’s a problem: President Obama and Secretary of State Kerry

know there is no chance that a Congress focused on cutting domestic spending and jump-starting the economy will enact legislation agreeing to a huge increase in so-called climate aid. Since 2010, the Obama administration has spent about $2.5 billion a year to help foreign countries adapt to climate change and adopt low-carbon energy technology.

It will be a stretch even to continue that level of spending.

And not just for the United States. Other developed countries are also not likely to give much aid to poor countries.

So what’s to be done? The answer is pretty clear: countries will need to negotiate a climate treaty that does not redistribute wealth from rich countries to poor countries. You can have a climate treaty, but you can’t have climate justice, and the sooner everyone realizes this, the sooner a treaty will be negotiated.

I have made this argument (at greater length) in several places, including this book, this article, and this column.

McCutcheon as a tax on millionaires

McCutcheon was a victory for gazillionaires, right? Yet what do we make of the headline of a striking article in Politico: Big donors fear shakedown after decision? (The article is dated April 2, not April 1.) And here are some choice quotations:

“I’m horrified, planning to de-list my phone number and destroy my email address,” said Ken Kies, who, along with his wife, has bumped up against the federal political contribution limits. “What I was really hoping for is a ban on lobbyists making contributions entirely.”

Podesta said for those donors, the new rule “eliminates an excuse that people have to say I’m done for the cycle and I can’t do anymore, which means that people who do max out will end up giving more money than they used to to candidates.”

“We were already getting drained before, now it’s another means to suck out more cash without any actual return on value,” said one GOP lobbyist.

“For the lobbying community, it increases the cost of doing business,” said David Rehr, a former association executive.

While Democrats publicly bashed the decision, they were far more positive in private. One top Hill Democrat suggested Democrats had larger number of donors, and they can now go back and ask these supporters for even more money.

Consider two models of campaign donation. In model 1, the donor gives a donation in return for a favor. McCutcheon improves the well-being of the donor in model 1 because the donor can give more donations and receive more favors in return. In model 2, the politician threatens the donor with a bad outcome (for example, delay in regulatory approval) unless the donor coughs up a donation. McCutcheon hurts the donor by giving politicians the power to make more threats and receive more donations in return. The difference between model 1 and model 2 is the difference between a bargain and extortion.

Which model is correct? Probably both describe some of the reality. Caro’s biography of LBJ provides a clear example of model 2 where LBJ threatened to delay a bank merger unless (if I recall correctly) the owner of the bank held off criticism of LBJ in a newspaper he also owned. The Politico quotes also support model 2 (though I suspect some of those quotes were tongue-in-cheek). But if model 2 were correct, it is hard to understand why Congress agreed to campaign finance limits in the first place. And it is hard to understand why the billionaires oppose donation limits, though it would not surprise me if people like McCutcheon himself, who espouse a crude libertarianism, never take the second step and ask how they fare if others are freed from the limits that frustrate them. Indeed, even under the more benign model 1, the lifting of donation limits can just lead to auctions in which the politician, who has quasi-monopoly power, can demand higher payments from those who seek favors. So while the donor still gets something of value for his money, he must pay more than in the past. Think of McCutcheon as a decision that imposes a tax on millionaires.

Koskenniemi on human rights

I have posted at SSRN a short paper on Martti Koskenniemi and human rights, written for an edited volume on his work. Koskenniemi is a distinguished Finnish international law scholar who has argued in several books that international law is indeterminate, and so tends to get harnessed to various political agendas even while its practitioners claim that international law is “neutral.” Koskenniemi focuses on the rhetoric of international legal scholarship; in my paper, I link his indeterminacy arguments about human rights law to the practices of states. If Koskenniemi is right, it would be surprising if states obeyed international human rights law, wouldn’t it?

Is Ukraine doomed?

I mean doomed to lose its autonomy as a nation-state, whether or not its borders remain formally in place. Here are some reasons for thinking that it is:

1. Russia has placed 40,000 troops along its borders. The West has made clear that Ukraine is not worth a war. In the president’s words:

Of course, Ukraine is not a member of NATO, in part because of its close and complex history with Russia. Nor will Russia be dislodged from Crimea or deterred from further escalation by military force.

2. NATO is “suspending cooperation” with Russia, meaning:

Russia could not participate in joint exercises such as one planned for May on rescuing a stranded submarine, a NATO official said.

But, never mind–

Russia’s cooperation with NATO in Afghanistan - on training counter-narcotics personnel, maintenance of Afghan air force helicopters and a transit route out of the war-torn country – [will] continue.

3. Ukraine is deeply in debt to Russia among other countries, and is on the brink of economic ruin. Russia has just increased natural gas prices for Ukraine from $268.50 per 1,000 cubic meters to $385.50.

4. The $18 billion IMF package will help Ukraine pay its debts to Russia, and pay for gas from Russia, at the newly high prices. Think of the IMF package as a subsidy to Russia that counteracts the picayune sanctions.

5. Russia has announced an economic development plan for Crimea that ethnic Russians in eastern Ukraine will look at with envy.

6. Ukraine is deeply divided between East and West. Russia has argued that Ukraine should be given a “federalist” structure, and this proposal may be sensible. As Ilya Somin explains:

Federalism has often been a successful strategy for reducing ethnic conflict in divided societies. Cases like Switzerland, Belgium, and Canada are good examples. Given the deep division in Ukrainian society between ethnic Russians and russified Ukrainians on the one hand and more nationalistic Ukrainians on the other, a federal solution might help reduce conflict there as well by assuring each group that they will retain a measure of autonomy and political influence even if the other one has a majority in the central government. Although Ukraine has a degree of regional autonomy already, it could potentially would work better and promote ethnic reconciliation more effectively if it were more decentralized, as some Ukrainians have long advocated.

But it is predictable that a federal system in which Ukraine effectively consists of two regions–a Ukrainian region and a Russian region–will produce a weak country whose eastern half is dominated by Russia and whose western half will be isolated and alone.

7. Most important, Ukraine has never shown itself able to exist as a viable independent nation. Throughout nearly all of its history, it has been a province of Russia, or divided between Russia and other neighbors. The major period of independence from 1991 to the present–a blink of an eye–has been marked by extreme government mismanagement that has resulted in the impoverishment of Ukrainians relative to Poles, Russians, and other neighbors. In the 1990s, many experts doubted that Ukraine would survive. Now that Russia is back on its feet, their doubts seem increasingly realistic.

Russia has considerable leverage; it will use it.

The Human Rights Council and defamation of religion

hrc defamationYesterday I claimed that governments do not take the Human Rights Council seriously. The most famous example is the effort by that body to advance a right against “defamation of religion.” In 2010, a resolution supporting this right was passed by a vote of 20 to 17 with 8 abstentions. (There have been other votes in favor as well, both in the Human Rights Council and the General Assembly.) The graph showing the breakdown of votes by Freedom House score is above. The question for international lawyers is whether western governments like that of the United States are required to recognize a right against defamation of religion because a bunch of authoritarian countries think it should. If not, how exactly should we understand the legal status of the Human Rights Council?

The Human Rights Council and the role of authoritarian countries

hrc dronesLast week the UN Human Rights Council approved a resolution that requires states

to ensure transparency in their records on the use of remotely piloted aircraft or armed drones and to conduct prompt, independent and impartial investigations whenever there are indications of a violation to international law caused by their use.

Ryan Goodman discusses the implications of this vote for international law. My view is that it has no implications. The views of the Human Rights Council are rarely taken seriously by governments. To see why, click on the graph pasted above. It reflects a pattern in votes of this type: that the apparently “progressive” resolution is in fact supported by (mainly) authoritarian countries like China and Saudi Arabia, while opposed by liberal democracies. Freedom House ranks countries based on their political rights from 1 (best) to 7 (worst). The average score of the resolution’s backers (the blue bars in the graph) is 4.1, while the resolution’s opponents (red) average 1.5, and the abstainers (green) average 2.7.

Anyone who thinks that resolutions like this one reflect a conscientious effort to interpret international human rights law doesn’t understand how the Human Rights Council operates. I will provide another example tomorrow.

Crimea, sanctions, and secession

In Slate I argue (once more) that the West can’t do much about Crimea. This time I focus on the ineffectiveness of economic sanctions against a large country, and I touch on the question of whether, and how much, the annexation harms western interests or principles. In short, the costs of sanctions are high and the benefits low. If Russia invades the rest of Ukraine, the calculus may change.

The European Court of Human Rights and Freedom House Ratings

echr fh

This graph (you may need to squint) shows Freedom House political rights scores for countries that belong to the European Court of Human Rights. The blue bar shows their score at the time of accession (if a FH score is available; they go back only to the 1970s), and the orange bar shows the score in 2014. I was curious about how countries have fared in light of Russian and Turkish backsliding, and of a general sense that international human rights is stagnating, but most countries have improved or not changed. A score of 1 is best; 7 is worst. Note that countries are arranged in the order that they joined the Council of Europe; the original members joined in 1949; Portugal in 1976; and Montenegro in 2007.

Jeffrey Sachs on the “crisis of international law”

Sachs argues that there is a crisis in international law, based not only on Russia’s actions in Crimea but on the general disregard of use of forces rules by the United States and other western countries:

As frightening as the Ukraine crisis is, the more general disregard of international law in recent years must not be overlooked. Without diminishing the seriousness of Russia’s recent actions, we should note that they come in the context of repeated violations of international law by the US, the EU, and NATO. Every such violation undermines the fragile edifice of international law, and risks throwing the world into a lawless war of all against all.

Sachs’ argument raises a number of questions:

(1) Is there a crisis in international law? And if so, did it start with Russia’s intervention in Crimea (as some people might argue), or earlier with U.S. and European actions going back 10-15 years?

(2) Sachs traces the crisis back to the 1999 Kosovo intervention. But the sorts of illegal uses of forces he describe go back very far, for example, the 1989 intervention in Panama, or the 1983 intervention in Grenada, or the 1979 Soviet invasion of Afghanistan. There is a sense in which the use of force rules have been in crisis since their (modern inception) in the UN charter in 1945. Why draw the line at 1999?

(3) Sachs implies that western illegality paved the path to Russia’s violation of international law. Is it true that if (for example) NATO had not illegally intervened in Kosovo or Iraq, then Russia would not have illegally intervened in Crimea? Is international law a “fragile edifice” that can be undermined by violations, or do the violations just tell us that existing rules are not well tailored to states’ interests? What of the argument that the Kosovo intervention, while illegal, stopped an even worse form of illegality, the ethnic cleansing of thousands of civilians?

(4) What does it mean for international law to be “in crisis”? That it is ignored? A better definition might be that states hold onto the law, they refuse to declare it defunct and try to rationalize their actions as legal, but they frequently violate it. A crisis exists not just because the rules are violated but because states can’t agree on a set of rules to replace them, generating uncertainty and misaligned expectations that could lead to war.

Sachs concludes that the United States should turn to the Security Council to address the Crimea crisis. But note the paradox: Because Russia enjoys the veto, it can immunize itself from Security Council action, and thus continue to violate international law without facing a (formal) legal sanction. The route to peace might circumvent the Security Council. It may be that you can have law or peace, but not both.

 

Should Ukraine have kept its nuclear weapons?

After the collapse of the Soviet Union, Ukraine inherited a huge nuclear arsenal, which it subsequently gave up. In return it received assurances from Russia,  the United States, and the United Kingdom that its territorial integrity would be respected. These assurances were embodied in the Budapest Memorandum of 1994. While the United States and the UK complied with that agreement by not invading Ukraine, Russia did not.

What if Ukraine had retained its nuclear arsenal? It seems more than likely that Russia would not have invaded Crimea. Putin might have calculated that Ukraine would not have used its nuclear weapons in defense because then Ukraine would itself have surely been obliterated by Russia. But the risk of nuclear war would have been too great; Putin would have stayed his hand. (However, it is possible that Ukraine would have been forced to give up its nuclear weapons one way or the other long before 2014.)

So between meaningless paper security assurances and nuclear weapons, the latter provides a  bit more security. One implication of the Crimea crisis may be the further unraveling of the nuclear nonproliferation efforts that President Obama has made the centerpiece of his foreign policy.

My non-testimony at the PCLOB

Last week, I was supposed to testify before the Privacy and Civil Liberties Oversight Board, but wasn’t able to because of a flight delay. My written statement is here. My panel was asked to answer two questions.

1. Does International Law Prohibit the U.S. Government from Monitoring Foreign Citizens in Foreign Countries?

I said “no.” The U.S. government has long taken the position that the relevant treaty–the International Covenant on Civil and Political Rights, which includes a right to privacy–does not apply to conduct abroad, based on article 2(1), which says “Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant.” Some NGOs and other countries disagree, but even if they’re right, it’s hard to imagine that surveillance targets like foreign citizens or government officials, fall within U.S. “jurisdiction.” And then the ICCPR doesn’t define “privacy,” and the treaty has never been understood to block monitoring of this type, as far as I know. That is why the Germans have recently proposed a new treaty, an optional protocol to the ICCPR, that would limit surveillance.

2. Should the United States Afford All Persons, Regardless of Nationality, a Common Baseline Level of Privacy Protection?

“No” again. Why should it? No other country that has the capacity to engage in surveillance respects the privacy of Americans. If nothing else, read this statement by Christopher Wolf, who describes the foreign surveillance laws and policies of other countries. Here is an excerpt about French law:

The 1991 [French] law is comparable to FISA in that it provides the government with broad authority to acquire data for national security reasons. Unlike FISA, however, the French law does not involve a court in the process; instead, it only involves an independent committee that only can recommend modifications to the Prime Minister. In addition, France’s 1991 law is broader than FISA in that it permits interceptions to protect France’s “economic and scientific potential,” a justification that is lacking in FISA.

The Kosovo precedent

There are actually two Kosovo precedents: (1) the 1999 war, and (2) the 2008 declaration of independence. Putin cites both–the first for the military intervention in Crimea, the second for the subsequent secession/annexation of Crimea.

Focusing on the first, much of the debate has turned on whether Crimea is like Kosovo, with western critics arguing that the Kosovo intervention was justified by humanitarian considerations not present in Crimea. The problem with this argument–if understood as a legal argument–is that no one believes that the Kosovo intervention was legal. The U.S. government has not made such a claim. Here is an account from a state department lawyer named Michael Matheson:

NATO decided that its justification for military action would be based on the unique combination of a number of factors that presented itself in Kosovo, without enunciating a new doctrine or theory. These particular factors included: the failure of the FRY to comply with Security Council demands under Chapter VII; the danger of a humanitarian disaster in Kosovo; the inability of the Council to make a clear decision adequate to deal with that disaster: and the serious threat to peace and security in the region posed by Serb actions.

This was a pragmatic justification designed to provide a basis for moving forward without establishing new doctrines or precedents that might trouble individual NATO members or later haunt the Alliance if misused by others. As soon as NATO’s military objectives were attained, the Alliance quickly moved back under the authority of the Security Council.  This process was not entirely satisfying to all legal scholars, but I believe it did bring the Alliance to a position that met our common policy objectives without courting unnecessary trouble for the future.

Matheson could have argued that the UN Charter’s flat ban on the use of military force should be interpreted away, perhaps in light of the Charter’s reference to human rights or some such thing. The UK would make such an argument. The U.S. never did. It still does not. The translation of Matheson’s exquisitely tortured statement is that we broke the law; we won’t do it again; and you better not, either.

Putin may be forgiven his skepticism about the “we won’t do it again” claim. The U.S. would do it again in 2003 (Iraq) and (arguably) 2011 (Libya). It did it before in 1989 (Panama) and 1983 (Grenada). Jack Goldsmith says, plausibly, “International law drops out because both actions were illegal, leaving only a fight over ‘legitimacy,’ which is even more in the eye of the beholder than legality.”

We can go farther. The U.S. did not advance a humanitarian intervention exception to the ban on the use of force because it did not believe that such an exception served its interests. It would open the door to other countries intervening whenever they believed humanitarian considerations justified intervention, leading to a surely impossible debate about what conditions constitute a humanitarian emergency and depriving the Security Council veto of its value. Russia and China also rejected the humanitarian intervention exception. So it could never become a part of international law.

Can the United States nonetheless argue that, while it broke the law in Kosovo and never paid a penalty, now, henceforth, it and everyone else must follow it? The problem with this argument is that the current use of force rules embodied in the UN charter can be mutually acceptable to all countries only in fact if all countries follow them. If only the United States can break them by citing “pragmatic” considerations, the United States alone possesses a veto. Russia, China, and the rest need to decide whether Kosovo was a one-off event or not. They appear quite rationally to have concluded that it was not one-off, and that the United States doesn’t take seriously the UN rules. And so they will not, either.

The reverse sanctions on Russia

Did I say that the sanctions imposed on Russian officials would end up rewarding them by enhancing their public standing? Well, here, from AFP, is the evidence:

US lawmakers ‘proud’ to be blacklisted in Russia row

Washington — US lawmakers scoffed at sanctions imposed on them by Russia Thursday, saying it was a point of pride to be on President Vladimir Putin’s blacklist.

…”Proud to be included on a list of those willing to stand against Putin’s aggression,” Boehner wrote on Twitter.

“It doesn’t have to be this way, but if standing up for the Ukrainian people, their freedom, their hard earned democracy, and sovereignty means I’m sanctioned by Putin, so be it,” he [Robert Menendez] said.

And Senator John McCain, a fierce Kremlin critic who says Putin has long aimed to rebuild the Russian empire, also chimed in.

“I’m proud to be sanctioned by Putin — I’ll never cease my efforts & dedication to freedom & independence of #Ukraine, which includes #Crimea,” tweeted McCain, who visited Ukraine last weekend with other senators.

Now just imagine the corresponding article in a Russian newspaper.

 

Obama, the realist

Stephen Walt, the distinguished Harvard proponent of “realism” in international relations argues that the Crimea debacle confirms the value of realism by showing how Obama’s liberal internationalist instincts led him astray:

To be sure, ousted president Viktor Yanukovych was corrupt and incompetent and the United States and the European Union didn’t create the protests that rose up against him. But instead of encouraging the protesters to stand down and wait for unhappy Ukrainians to vote Yanukovych out of office, the European Union and the United States decided to speed up the timetable and tacitly support the anti-Yanukovych forces. When the U.S. assistant secretary of state for European and Eurasian Affairs is on the streets of Kiev handing out pastries to anti-government protesters, it’s a sign that Washington is not exactly neutral. Unfortunately, enthusiastic supporters of “Western” values never stopped to ask themselves what they would do if Russia objected.

Walt makes a number of astute points–the chief one being that Russia has strong security interests in Ukraine while the United States does not–but his conclusion is exactly backwards. The West in fact did virtually nothing to encourage democratic forces in Ukraine. The United States offered virtually no aid–$1 billion in loan guarantees, which is pocket change. And the reason was that the United States did not care what happened in Ukraine, for all the reasons Walt gives. The West could not have “encourag[ed] the protesters to stand down”–that would have been politically impossible–and even if it had, and they had, Putin would still have seized Crimea. To believe otherwise, you would have to take seriously Putin’s claim that he objected to the illegality of the removal of Yanukovych, when in fact what he really cared about was losing Ukraine to the West.  If handing out pastries to protesters was our way of showing support for democracy, then I rest my case.

And while it is hard to call the annexation of Crimea a foreign policy “success,” the do-nothing response of the United States is exactly the correct response from Walt’s realist perspective. If we have little interest in Ukraine, we have literally zero interest in Crimea, a poor, out-of-the-way place. In fact, as Walt hints, it is most likely that Russia has violated realist tenets, not the United States, with Putin reacting to domestic political pressures or perhaps acting recklessly by risking war for a peninsula that Russia already effectively controlled. And so our major goal should be to ensure that we respond rationally rather than emotionally to the annexation by not letting it interfere with areas of potential cooperation with Russia. By imposing meaningless sanctions on Russia, that is what Obama, a Waltian realist, is doing.

Vladimir Putin, international lawyer

From his speech to the Duma (with my annotations in brackets):

However, what do we hear from our colleagues in Western Europe and North America? They say we are violating norms of international law.  Firstly, it’s a good thing that they at least remember that there exists such a thing as international law – better late than never. [So there!]

Secondly, and most importantly – what exactly are we violating? True, the President of the Russian Federation received permission from the Upper House of Parliament to use the Armed Forces in Ukraine.  However, strictly speaking, nobody has acted on this permission yet.  Russia’s Armed Forces never entered Crimea; they were there already in line with an international agreement.  True, we did enhance our forces there [without entering?]; however – this is something I would like everyone to hear and know – we did not exceed the personnel limit of our Armed Forces in Crimea, which is set at 25,000, because there was no need to do so. [But Russian forces appear to have roamed about Crimea in violation of this agreement as well as the UN Charter.]

Next. As it declared independence and decided to hold a referendum, the Supreme Council of Crimea referred to the United Nations Charter, which speaks of the right of nations to self-determination [true]. Incidentally, I would like to remind you that when Ukraine seceded from the USSR it did exactly the same thing, almost word for word. Ukraine used this right, yet the residents of Crimea are denied it. Why is that? [Why indeed?]

Moreover, the Crimean authorities referred to the well-known Kosovo precedent – a precedent our western colleagues created with their own hands in a very similar situation, when they agreed that the unilateral separation of Kosovo from Serbia, exactly what Crimea is doing now, was legitimate and did not require any permission from the country’s central authorities. Pursuant to Article 2, Chapter 1 of the United Nations Charter, the UN International Court agreed with this approach and made the following comment in its ruling of July 22, 2010, and I quote: “No general prohibition may be inferred from the practice of the Security Council with regard to declarations of independence,” and “General international law contains no prohibition on declarations of independence.” Crystal clear, as they say. [I'm afraid so.]

I do not like to resort to quotes, but in this case, I cannot help it. Here is a quote from another official document: the Written Statement of the United States America of April 17, 2009, submitted to the same UN International Court in connection with the hearings on Kosovo. Again, I quote: “Declarations of independence may, and often do, violate domestic legislation. However, this does not make them violations of international law.” [Right.] End of quote.  They wrote this, disseminated it all over the world, had everyone agree and now they are outraged. Over what? The actions of Crimean people completely fit in with these instructions, as it were. For some reason, things that Kosovo Albanians (and we have full respect for them) were permitted to do, Russians, Ukrainians and Crimean Tatars in Crimea are not allowed. Again, one wonders why.

We keep hearing from the United States and Western Europe that Kosovo is some special case. What makes it so special in the eyes of our colleagues? It turns out that it is the fact that the conflict in Kosovo resulted in so many human casualties.  Is this a legal argument? The ruling of the International Court says nothing about this. [True; it is legally irrelevant.] This is not even double standards; this is amazing, primitive, blunt cynicism. One should not try so crudely to make everything suit their interests, calling the same thing white today and black tomorrow. According to this logic, we have to make sure every conflict leads to human losses. [The U.S. position is that forcing Kosovo's population to remain a part of a country whose government tried to massacre it would be wrong, and numerous efforts were made to broker a compromise before secession took place. Putin argues that it would be ridiculous to make Crimea wait for its population to be massacred before seceding.]

I will state clearly – if the Crimean local self-defence units had not taken the situation under control, there could have been casualties as well. [This is doubtful, as there were no massacres anywhere else in Russian-speaking Ukraine that did not benefit from "local self-defense units".] Fortunately this did not happen. There was not a single armed confrontation in Crimea and no casualties. Why do you think this was so? The answer is simple: because it is very difficult, practically impossible to fight against the will of the people. Here I would like to thank the Ukrainian military – and this is 22,000 fully armed servicemen. I would like to thank those Ukrainian service members who refrained from bloodshed and did not smear their uniforms in blood.

Other thoughts come to mind in this connection. They keep talking of some Russian intervention in Crimea, some sort of aggression. This is strange to hear. I cannot recall a single case in history of an intervention without a single shot being fired and with no human casualties. [But because the military force was overwhelming.]

Colleagues,

Like a mirror, the situation in Ukraine reflects what is going on and what has been happening in the world over the past several decades. After the dissolution of bipolarity on the planet, we no longer have stability. Key international institutions are not getting any stronger; on the contrary, in many cases, they are sadly degrading. [True] Our western partners, led by the United States of America, prefer not to be guided by international law in their practical policies, but by the rule of the gun. [Hmm] They have come to believe in their exclusivity and exceptionalism [ahem], that they can decide the destinies of the world, that only they can ever be right. They act as they please: here and there, they use force against sovereign states, building coalitions based on the principle “If you are not with us, you are against us.” To make this aggression look legitimate, they force the necessary resolutions from international organisations, and if for some reason this does not work, they simply ignore the UN Security Council and the UN overall. [Hmm]

In other words, we did not act illegally but if we did, you did first. The subtext, I think, is that the United States claims for itself as a great power a license to disregard international law that binds everyone else, and Russia will do the same in its sphere of influence where the United States cannot compete with it.

The toothless sanctions on Russia

The U.S. and EU imposed asset freezes and travel bans on a handful of Russian and Ukrainian officials connected to the Crimean secession. Most of them are mid-level people; a few are Putin aides. They did not impose asset freezes and travel bans on Putin or other big shots, nor did they impose sanctions on Russia itself.

Why not? You can easily imagine that if Putin had been sanctioned, he would not be able to back down or make concessions–because then it would look as if he betrayed Russia for personal financial reasons. But the same logic applies to the mid-level people, who now must redouble the aggressiveness of their stance on Ukraine. And because the sanctions were imposed on a handful of people rather than all of Russia, the Russian government can easily compensate the sanctioned individuals for any losses that they have sustained. Indeed, probably their public standing has increased as the sanctions will make them look important to the Russian public who are probably learning the identities of some of them for the first time.

So the sanctions aren’t even toothless: they reward rather than punish the wrongdoers. They are best seen as a signal, the weakest possible signal, one that indicates that we will accept Crimea if you go no farther. I suspect that it would have been more sensible to send this signal by imposing a weak sanction on all of Russia than to single out these people who  will be perceived as heroes who have made sacrifices for the motherland.

Easterly’s The Tyranny of Experts

William Easterly argues that efforts to help poor countries achieve economic growth have gone astray because western experts impose top-down recipes for growth (a kind of Stalinist approach that mixes hubris and incompetence):

The conventional approach to economic development … is based on a technocratic illusion: that the belief that poverty is a purely technical problem amenable to such technical solutions as fertilizers, antibiotics, or nutritional supplements.

The problem, as Easterly shows in this book and in his previous books (including the terrific White Man’s Burden), is that these technical solutions fail because western experts rarely understand the intricacies of the local environment, and, more important, the politics and institutions in the countries they seek to help. Often, technically flawless development projects fail because of corruption and abuse in the country that is being helped. The gleaming power plant operates for a few years and then falls into disrepair because the absence of an effective legal system that enforces property and contract rights makes it impossible to collect bills or protect against squatters.

The solution? It turns out to be human rights:

What you can do [about global poverty] is advocate that the poor should have the same rights as the rich…. This assertion of the rights of the poor is needed now more than ever…. This books argues [that] an incremental positive change in freedom will yield a positive change in well-being for the world’s poor.

Easterly does not explain what any of this means. Which rights should we advocate? How should we insist that they be implemented? What should we do to governments that refuse to take our advice? I suspect that if he gave these questions some thought, he would realize that any serious effort to compel or bribe poor countries to recognize rights would look like the development activities that he criticizes. Indeed, his bête noir, the World Bank, famously tried to implement “rule of law” projects that were supposed to enhance rights. These projects failed for all the reasons that all the other development projects failed.

Easterly provides no evidence that if we advanced human rights in poor countries, well-being in those countries, or even respect for rights, would improve. In fact, there isn’t any.

Fragile by Design, by Calomiris & Haber

Fragile by Design, by Charles Calomiris and Stephen Haber, is a great book. The authors argue that the stability and efficiency of financial systems in different countries depend on political bargains that set the rules of the game. Authoritarian countries produce inefficient state-owned banking systems because governments cannot commit not to expropriate. But democracies produce a wide range of outcomes, depending on the configuration of constituencies and interest groups. The United States is cursed with a highly unstable banking system because local interests have been able to ensure a huge number of local unit banks that were insufficiently diversified. This system finally broke down thanks to the inflation of the 1970s, but our further misfortune was a political bargain between activist groups and large banks in the 1990s that resulted in a system where banks were encouraged to reduce underwriting standards so as to extend credit to low-income people. Meanwhile, countries like Canada were lucky enough that the initial political bargain at a national level led to a small number of stable and efficient banks that weathered the financial crisis of 2008.

There are a huge number of moving parts and epicycles (why was our unstable system so stable from 1936-1980?, and what explains the success of activists like ACORN?), but the book is nonetheless enormously illuminating, and contains the most powerful and concise account of the causes of the 2008 crisis that I have seen.

Goodbye, Crimea

It doesn’t matter that the referendum did not allow voters to express a preference for the status quo, that many of the 90+ percent who favor annexation by Russia (according to (possibly questionable) exit polls) may have been trucked in, that international election monitors were not used, that ballot boxes may have been stuffed, that Tatar groups refused to participate, that the public debate was drowned out by pro-Russian propaganda, and that Russian soldiers and/or pro-Russia militias roamed the streets. It is sufficient that there wasn’t violence, that western journalists were free to move about and interviewed plenty of ordinary people who strongly favored annexation, that there were enthusiastic public demonstrations in favor of annexation and celebrations after the result was announced, and that the outcome is consistent with demographic realities and what seems plausibly (to us ill-informed westerners) the preference of most Crimeans. Unless large groups of Tatars and ethnic Ukrainians take to the streets to protest the referendum and are clubbed by riot police, any western effort at this point to try to rescue Crimea from the invaders it embraces will be not only pointless but ludicrous. The West is now in the impossible position of being pro-democracy and arguing that Crimea should be returned to Ukraine against the will of the people. Even if the referendum was all theater, it was effective theater.

The image above, from Wikipedia, shows the demographic composition of Ukraine as of 2001. Blue means an area where the majority speaks Ukrainian; red means an area where the majority speaks Russian. Doesn’t this suggest a forgone conclusion once Putin made his move?

The Crimean secession vote

In an earlier piece, I said

If a fair vote is held, and Crimeans vote overwhelmingly to join Russia, then any Western effort to stop them will be seen as an attempt to thwart the will of the people, a violation of their right to self-determination, which is enshrined in the U.N. charter and multiple human rights treaties.

I didn’t actually think it likely that a fair vote would be held; I was instead trying to avoid discussing the more complicated case where a a fair vote is not held. (Some might call this qualification lawyerly; others, weaselly.) In any event, it is becoming increasingly clear that a fair vote will not be held, as discussed in this NYT article and this National Interest piece by former ambassador to Ukraine, John Herbst. I also received this illuminating email from a Ukrainian-American student in the United States (who continues to visit and do work in Ukraine):

If you follow the Russian and Ukrainian language press as well as Crimean groups on social-networking sites (such as SOS_Krym), you already realize that large scale attempts at voter fraud are under way. Several of my friends in Crimea (this has been verified by reports throughout the peninsula) have been visited by unidentified individuals who either make off with their passports or damage them. This just so happens to coincide with an announcement by Sevastopol city authorities that any form of photo ID will be accepted during the referendum, given what has been happening to passports. This is a clear invitation to “Russian tourists”, many of whom have already created problems in Donetsk and Kharkov.

Interestingly, this is voter fraud on TOP of voter fraud since the ballot itself, absurdly, presents residents of Crimea with two options – join Crimea or seek independence – without any space for a “no” vote on either of those options. All under the watchful eye of Russian special forces and “local self-defense militias.” Does that sound like a legitimate referendum to you? How can this referendum be legitimate if it doesn’t accurately reflect the will of the people, and how can it accurately reflect the will of the people when it is being carried out under these types of circumstances?

MOREOVER, the government which is calling for this referendum was installed by those very same Russian spetsnaz and approved by Yanukovych (at that point no longer in charge of anyone or anything). Aksyonov, the current head of the Crimean administration, leads a party called “Russian Unity” and received 4% of the vote in the last elections. He is a fringe figure and I can assure you (as someone who worked in the region) that before all of this started, Aksyonov and his ilk were regarded as nothing more than a joke by domestic and international observers alike. Is a referendum planned by an illegitimate government with no support…legitimate?

Finally, I would urge you to rethink the implication of the following: “Crimea’s ties with Russia go back centuries. It was transferred from Russia to Ukraine only in 1954 while both countries were regions of the Soviet Union. This transfer reflected a top-down administrative judgment, not the sentiments of the Ukrainian or Crimean peoples.” Your implication leads to a slippery slope because, as you well know, Crimea belonged to the Crimean Khanate (present day Crimean Tatars) long before the Russian Empire controlled the region. If we’re going all the way back to the 1950s, why use 1783 as our historical reference point? If historical precedent is what we’re really looking at, perhaps we should transfer the land to the descendants of the Scythians? Or the descendants of the Romans – the Italian state? Crimea has passed hands so many times that attempting to find a legitimate government somewhere in the folds of time is a futile endeavor, at best.

… One more thing – I’m not sure if the Western press has published anything about this, but the leader of the Crimean Tatar Mejlis (the Mejlis is described by Crimean Tatars as a “body of local self-government” in Crimea – the Mejlis has offices in nearly every corner of the Crimea and lays claim to representing the interests of Crimean Tatars) called on Crimean Tatars to boycott the referendum. Refat Chubarov (leader of the Mejlis) voiced many of the same concerns I did about Russian tourists coming to Crimea and voting in the referendum. He also deemed this referendum illegitimate due to ballot design and the fact that 400,000 more ballots have been printed than there are residents in Crimea. This is all in addition to the fact that the government of Crimea is not legitimate and that the referendum is taking place under the watchful eye of Russian special forces, but that goes without saying. So, in effect, anywhere from 12-15% of Crimea’s population will most likely be boycotting this referendum.

So the political and international-law implications of an unfair referendum cannot be avoided. I hope to address them after the referendum has been held, and the extent of the unfairness can be gauged.

Goldman on Bitcoin

Business Insider exaggerated when it announced that Goldman completely obliterates Bitcoin in a new report. The report includes interviews with Bitcoin supporters. And while the Goldman analysts are skeptical that Bitcoin could serve as a currency—the view of nearly everyone nowadays—they do not rule out a role in the payments system. Currently, merchants pay 2-3 percent of purchase price to accept electronic payments. Bitcoin service providers charge 1 percent. But as the Goldman analyst notes, much of the cost of the current payment system is attributable to security and legal requirements that Bitcoin providers will eventually need to confront. Merchants who use bitcoin pay an additional 1 percent to exchanges in order to avoid exchange rate risk. Traditional payments system will also reduce costs in response to competition from Bitcoin. However this all works out, the long-term effect of Bitcoin will not be anarchist utopia but slightly lower prices—you may end up paying $100 rather than $101 for an item you buy over the web.

Other thoughts:

Bitcoin miners with 51 percent of the computer power over the Bitcoin network control the supply: they can decide to increase it. Question: don’t they have strong incentives to undersupply bitcoins—that is, to vote against increasing the supply to the social optimum while hording bitcoins—in order to maximize their profits, like De Beers?

Bitcoin’s legal problems are just beginning. An interview with a pair of lawyers reveals a potentially huge regulatory web that legitimate bitcoin institutions will need to navigate. Once bitcoin futures come into existence in sufficient volume, the CFTC will step in. We already know about money laundering laws, which require bitcoin services to keep tabs on customers and report suspicious transactions. The SEC has gotten into the act because of efforts to combine Bitcoin and securities. State regulatory agencies may require Bitcoin-related companies to obtain licenses akin to those that money transmitters like banks must obtain, which are costly. It also seems likely that Bitcoin services will, like existing money transmitters, be required to keep funds on hand to compensate customers if their bitcoins are lost—a further cost. Not discussed, but also worth considering, is the possibility that people will try to manipulate the bitcoin market—as I suggested above—necessitating another layer of regulatory scrutiny.

Kahan & Rock on Symbolic Corporate Governance Politics

Marcel Kahan and Edward Rock have posted a paper on SSRN that asks why “the rhetoric around a variety of high profile corporate governance controversies … cannot be justified by the material interests at stake,” while at the same time “shareholder activists are oddly reluctant to pursue issues that may have a more material impact.” The answer was anticipated by the legal realist Thurmond Arnold, who argued that a great deal of law is supposed to reflect certain myths and taboos believed by the public but that couldn’t practicably be enforced:

We celebrate our ideals of chastity by constantly engaging in wars on vice. We permit prostitution to flourish by treating it as a somewhat minor crime and never taking the militant measures which would actually stamp it out. The result is a sub rosa institution which organizes the prostitutes after a fashion, at least to the extent that there never seems to be any shortage in our large cities. …

Thus in those days anyone who attacked the “Trusts” could achieve the same public worship as a minister of the gospel who had the energy to attack vice. It was this that made Theodore Roosevelt a great man. Historians now point out that Theodore Roosevelt never accomplished anything with his trust busting. Of course he didn’t. The crusade was not a practical one. It was part of a moral conflict and no preacher ever succeeded in abolishing any form of sin.

Kahan and Rock add:

Arnold seems to have saved his most savage (and sincere) condemnation for those poor well-meaning fools who would endeavor to make us live up to our articulated principles because doing so would destroy necessary institutions and cause serious social harm.

They conclude that the myth of corporate governance is that shareholders control firms when in fact they cannot, which means that we must trust managers with billions of dollars and hope for the best. Any attempt to constrain managers would render the corporate form unworkable because shareholders cannot, practically, manager the corporation. Activists maintain their pay and prestige by keeping corporate governance battles in the public eye but in fact no one should hope that they succeed, and perhaps they don’t wish to succeed themselves.

As Kahan and Rock presented their enjoyable paper at a corporate governance conference last week, I couldn’t help thinking: isn’t this the story of originalism?

The rise and rise of human rights scholarship in law reviews

hr articlesEveryone complains that law professors write too much about constitutional law, and not enough about areas of law that actually matter–antitrust, securities regulation, and criminal law. A similar complaint can be directed against international law scholars. On the evidence of the Westlaw database, international law scholars think that human rights deserve vastly more attention than (say) trade law or even the United Nations. In truth, human rights law is of limited practical importance in international relations, and virtually all of this literature–which nearly uniformly argues in favor of more human rights and stronger human rights institutions–will be ignored. If you want evidence that much of what academics do doesn’t matter, and that there is no mechanism for self-correction, see the graph above.

Mitu Gulati: Ukraine’s odious debts

Mitu Gulati, the world’s expert on the odious debt doctrine, writes in:

It is a treat to guest post here at ericposner.com.  It is an even bigger treat to be invited to disagree with Eric on the pages of his own blog! Eric has been blogging about the Ukraine situation, but has yet to engage the question of what is to become of the Ukraine’s debt, a large portion of which is likely owed to Russian entities. Of particular interest are the debts owed by Ukraine directly to the Russian state.  This includes Ukraine’s most recent Eurobond issue (December 2014) for roughly $ 3 billion that was purchased entirely by the Russian state as part of its subsidization of the prior Ukrainian regime.

However, Ukraine may have an argument for escaping liability on that last $ 3 billion (and likely more).  That argument comes from an antiquated doctrine of international law, the doctrine of Odious Debts, that briefly got resuscitated about a decade ago in the context of Iraq’s post-Saddam era debt restructuring. The relevant bit of international law here is the doctrine of state succession.  Under this doctrine, democratic governments that succeed dictators are not allowed to disclaim the debts of the prior regime, no matter how odious it may have been.  There may be a narrow exception, however, for what one might call Corrupt Debts.

That is where the lender knew or should have known that the money it was lending was going to line the personal coffers of a state leader.  There, the lender can fairly be said to have made the loan to the personal account of the corrupt leader, rather than to the state.  In the case of Ukraine, the current regime has vociferously accused Mr. Yanukovych and members of his regime of stealing the proceeds of prior state borrowings.

Assuming that is true, it should not be difficult to argue that the Russian lenders knew or should have known of the kleptomaniacal tendencies of Mr. Yanukovych’s government.  In that case, Uncle Vlad would no longer be able to collect from the Ukraine; instead, he would have to look directly to his friend, Mr. Yanukovych, for recovery of the $3 billion.

The case law is sparse. But there is a famous case on point, involving a 1923 arbitration between Great Britain and Costa Rica.  Cribbing now from an article with the godfather of sovereign debt, Lee Buchheit, “The Dilemma of Odious Debts”:

In 1917, the government of Costa Rica was overthrown by Frederico Tinoco. Tinoco’s government lasted two years.  Before he left the country, Tinoco borrowed some money from the Royal Bank of Canada. That money also left the country . . . in the company of Mr. Tinoco.

In a subsequent arbitration, Great Britain claimed that the successor government of Costa Rica was bound to honor the loans. US Supreme Court Justice (and former President) William Howard Taft refused to order Costa Rica to repay the Tinoco loans. These were, Taft said, not transactions “in regular course of business” but were “full of irregularities.” Taft explained that “[the] bank knew that this money was to be used by the retiring president, F. Tinoco, for his personal support after he had taken refuge in a foreign country. It could not hold his own government for the money paid to him for this purpose.”

Sounds an awful lot like Uncle Vlad’s purchase of Ukrainian Eurobonds a couple of months ago. The question may eventually come down to this — will the new administration in the Ukraine feel itself obliged, as a matter of law or morality, to repay a loan extended to a prior regime that they have already branded as kleptomaniacal by a lender (Russia) that they have already accused of lopping off a large part of Ukrainian territory (the Crimea) in violation of international law?

Eric, what do you think? You’ve been skeptical of the doctrine of odious debts in the past.  Would you consider the scenario above to be an exception?  One where that doctrine should apply to excuse the Ukrainians?

[Since you asked: Without knowing more facts, it is hard to know what will happen, but my guess is that Yanukovych skimmed off only a part of the proceeds, most of which ended up in the Ukrainian treasury—if so, the bill must be paid, while Ukraine would have a (no doubt unenforceable) claim against Yanukovych personally. – EP.]

Would Russia’s annexation of Crimea violate international law?

No. The U.S. government claims that annexation would violate international law and the Ukrainian constitution because Ukraine has not given its consent to the referendum. But Russia is not bound by the Ukrainian constitution. Nor does any international law prohibit two countries from merging together.

The real question is then whether Crimea’s secession–which you might think of as a legally separate act that (conceptually) precedes the annexation–violates international law. As I explained before, there is no law against one territory seceding from another. In fact, the right to self-determination is enshrined in the UN charter and several human rights treaties. Ukraine could certainly try to stop its territory from seceding–just as the United States fought to prevent the South from seceding–but if it fails, it can’t complain that the secession violates international law. Ukraine’s best argument is that the secession was driven by Russian meddling–Russia’s invasion of Crimea did violate international law, and the occupation violates Ukraine’s sovereignty. But if the referendum is free and fair, that argument will lose much of its force. Perhaps, Ukraine is owed some remedy by Russia (good luck), but that remedy could not be an injunction on Crimean secession, which would injure the Crimeans themselves.

U.S. officials note that Scotland’s secession vote was approved by the UK government. But the more pertinent analogy is Kosovo. Kosovo’s declaration of independence was not approved by the Serbian government. Kosovo’s secession was abetted quite significantly by the United States through military and diplomatic means.

Originalism class 9: between phony and naive

In our last class, we discussed Jack Balkin’s paper, Why Are Americans Originalist?, which I interpret as a sly debunking exercise. Balkin’s most interesting argument is that the turn to originalism in the 1980s was akin to Martin Luther’s repudiation of the Catholic Church’s monopoly over Biblical interpretation, with the Supreme Court playing the role of the Church. (You might think of the habit among libertarians of carrying around a pocket-sized constitution as the modern version of biblical translation into the common language.) Originalism is a political strategy that became attractive because the founding-era meaning of the text coincided (very roughly) with the political goals of conservatives while at the same time appealing more broadly because of the patriotic, anti-elitist message that the Constitution contains the wisdom of the founders and we can all read the Constitution for ourselves. The students were pretty skeptical.

But I do sympathize with conservatives of the 1970s and 1980s who saw the Warren Court as an ideological apparatus, and were contemptuous of the law professors at the time who sought to rationalize its liberal holdings with phony constitutional theories. The problem was that the alternative they came up with rests on a mythical self-image, or at least encourages people to treat mythology as fact, with all kinds of weird consequences for constitutional law. It’s as if the Germans repudiated their Basic Law and decided to derive constitutional norms from the myths of the Nibelungen. Or–to be fairer–from whatever archaeological research might reveal about the customs of Germanic tribes at the time of Tacitus.

We polled students again–they polarized, which makes sense since they are more informed about what originalism means now than they were at the start of the course. But it bodes ill for the project of originalism itself since originalism can prevail only if that is what the people want.

Kirkland and Ellis Distinguished Service Professor, University of Chicago Law School