Author: Deven Desai

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Regulating Private Military Companies

privatemilitary.jpgBlackwater has of course been in the news. And the House has acted twice in the past week to regulate private military companies. One, H.R. 2740, according to the Times “would bring all United States government contractors in the Iraq war zone under the jurisdiction of American criminal law. The measure would require the F.B.I. to investigate any allegations of wrongdoing.” The other, H.R. 400, is designed “to make it easier to convict private contractors of defrauding the federal government during wartime.”

A couple of years ago I wrote an article about this area. One thing is clear: the use of private military contractors is not going away soon and can often have benefits. As such I proposed that rather than looking to legislation alone, the U.S. government, which accounts for massive portions of many private military contractors income stream, should take an old school contract approach to the jurisdiction problem. In short if the government wants to be serious about the issue, it can simply demand that any contractor adhere to human rights and international laws and agree to U.S. jurisdiction over common crimes. An additional legislative layer is required, however. Protection for whistleblowers is vital for any criminal or profiteering law to have teeth. These events occur far away and when people have come forward as happened in Bosnia, the company involved was quick to try and paint those who spoke up as trouble makers with all the usual employment repercussions. Peter Singer’s work in the area details much of the problem and is worth a read. My paper, Have Your Cake and Eat It Too: A Proposal for a Layered Approach to Regulating Private Military Companies, covers some of the history of the use of PMCs by governments and NGOs, the way PMCs can be used well, the reasons international law falls short of addressing many of the issues that are bound to arise, and then offers a possible solution to at least make sure that when crimes occur people know about them (a real problem in many cases), and they can be prosecuted. There is of course much to do in this area. The paper seeks to be a starting point.

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An Example of a Well-Planned and Run Single Topic Conference

TM-Brochure_FINAL-1.jpgEric Goldman and Santa Clara University School of Law just conducted Trademark Dilution: Theoretical and Empirical Inquiries. Rebecca Tushnet has posted summaries of the proceedings at her blog and one can see the substance of the talks there. What impressed me was that the conference brought in a range of views and had little redundancy despite the single topic approach. Indeed, with academics (from law and other disciplines) and practitioners offering views and counterviews the picture of the impact of new legislation, the history of the doctrine, the theoretical foundations of the doctrine, and the way that business views the area of the law was rather full. In addition, the panel topic selection and the strict adherence to time (enough to present but still have questions) allowed for a good exploration of ideas. None of this post suggests that other conferences with simultaneous panels are bad. Rather, the well-executed, single topic conference offers the possibility of reflection on a topic for a whole day. The danger in either format is dead panels. In a single topic format that danger seems higher. Still, Prof. Goldman and the staff of Santa Clara’s High Tech Law Institute did a great job avoiding that possibility and put on an informative, great conference.

Cross-posted at Madisonian.

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The World Conference on Japanese Military Sexual Slavery

The World Conference on Japanese Military Sexual Slavery is going on right now at UCLA. I remember taking a class on the rhetoric of the law of war as an undergraduate student and some of the issues we studied come up here. Where does the law fit? How accurate is the history? How does one attain justice and still have room for atonement and a way to move forward as a society? As Beth Van Schaack explains regarding the panel about comfort women “A perfect storm of legal doctrines, foreign policy objectives, treaty provisions waiving claims for reparations, failures of political will, and Japanese intransigence has left the ‘comfort women’ with little in the way of legal options at this point.” For those interested in the specific topic or the general area of reparations, Beth’s post notes the historical context and the trouble one faces in trying to apply law to the issues. In short, it is an interesting read.

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Women Not Attending Law School

businesswoman2.JPG Mike Madison has a post about advice for a new law dean that suggests law schools should emulate business schools and require that a prospective student have a few years of work experience before being admitted. [UPDATE/CLARIFICATION: Prof. Madison’s post speaks of “a minimum of two years’ of experience in the world before enrolling in school.” I speak of work experience which for me absolutely includes a broad range of activities, not just Wall Street or similar jobs.] Oddly enough it appears that women are not heading straight to law school but not because of any such policy. The National Law Journal reports that the number of women in law school has dropped since 2002. The article indicates that the reason behind this shift is unclear: some point to women being able to earn more than men right out of college in several major metropolitan areas; some note that a few newer schools have greater disparity in enrollment and they may skew the figures; and some note that the press has covered how law firms may not be the most friendly places for women given the lack of female partners and trouble in retaining women in general at firms (“In 2006, just 17.9 percent of partners in law firms were women, according to NALP, a nonprofit organization that tracks legal careers. Meanwhile, 44.3 percent of associates were women.”) Last the article suggests that even with flexible hours, day-care, and paid maternity leaves, the bottom line at most firms creates a world where one is on-call all the time and the hours are not what women want. Maybe, but that seems inaccurate.

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The Right to Bear Ar–, Or Is It Access the Internet?

scissors2.JPG CNET reports that the government of Burma a.k.a. Myanmar has apparently cut-off Internet and cell phone access as a way to suppress information about the protests occurring there right now. The claim is that an undersea cable is damaged but given the convenience of such a coincidence that claim is being viewed with suspicion. As many know the information that has come through has been via cell phones, blogs, and text messages. Apparently some have even used FaceBook or e-cards to get messages out.

All of these events make we wonder whether the Bill of Rights would explicitly state that there is a right to free access and distribution of information over the Internet had the American Revolution occurred today. Now before everyone gets into a dither about the nature of the free press and what the First Amendment encompasses, I am suggesting that the situation described above shows the precarious nature of sharing information given the choke-points in place today. In other words, it seems that the benefits of technology also offer a much easier way to clamp down on society. Many have made this observation in the privacy context. Neil Richards’s post about the First Amendment gets to this point as well. We must consider what is at stake in today’s context. Put differently, could it be that the individual’s ability to access and use the Internet is now one of the key ways individuals serve to balance the power of the state?

Cross posted at Madisonian

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Stay Tuned: Judge Mukasey (Ret.) May Be Nominated For Attorney General

Here’s a quick heads up. Judge Michael B. Mukasey former Chief Judge of the Southern District of New York looks to be President Bush’s nomination to replace Alberto Gonzales as Attorney General. Judge Mukasey has a curious background. He was a federal prosecutor with Rudy Giuliani and has ties to his campaign, served 19 years on the federal bench, and according to some interviewed by the Washington Post, is not well-known or likely to be favored among conservatives. Perhaps his rejection of the claim that Jose Padilla could be held indefinitely as an enemy combatant, which resulted in the case being transferred to South Carolina, upset some folks. Still as the Post notes, William Kristol of the Weekly Standard has written an editorial defending the choice. Kristol suggests that even though Judge Mukasey denied the government’s motion in Padilla’s case he will be acceptable to conservatives. To support this position he quotes Andrew McCarthy’s statement from the National Review Online:

He deftly handled the enemy-combatant detention of Jose Padilla (recently convicted of terrorism crimes), forcefully endorsing the executive branch’s wartime power to protect the United States from an al Qaeda operative dispatched to our homeland to conduct mass-murder attacks, but vindicating the American citizen’s constitutional rights to counsel and to challenge his detention without trial through habeas corpus.

I can’t say I know enough about the man at this point. As Kristol posited, the right may be choosing someone who will not be challenged (Sen. Schumer of New York seems to like the choice) and do little harm from the right’s view in the year and a quarter left in this administration’s term. We will see what happens when the announcement is official which is predicted to be Monday.

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Shifting Out of Neutral: Net Neutrality Defenders Fire Back

networkcable.jpgThe net neutrality debate continues. Groups such as The SavetheInternet Coalition have some resources on the issue. As an advocacy group, the Coalition offers some statements about the issue that may be, shall we say, skewed. Recent attention from our own Frank Pasquale and Boing Boing show that the issue is not resolved and better information on the topic is needed. Enter legal academics who have been addressing the issue in journals. One of the more vocal participants against net neutrality is Christopher Yoo. Although others may have fired back, Brett Frischmann and Barbara van Schewick’s paper, Network Neutrality and the Economics of an Information Superhighway: A Reply to Professor Yoo, on the topic merits a read. One great thing about the paper is that apparently Professor Yoo discussed it with the authors. Hopefully, these sorts of exchanges will inform the policy debates and help fashion a solution less pushed by lobbying spin and more driven by the heart of the issue.

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Cheaters Here, Cheaters There, Cheaters Everywhere?

aceupthesleeve2.JPGDave’s post about New England Patriot’s head coach, Bill Belichick, being fined for apparently cheating points to a larger question. What does it take to stop cheating? Sure Bellichick has offered the obligatory apology saying how it’s his responsibility, and he made mistakes. He also said “As the commissioner acknowledged, our use of sideline video had no impact on the outcome of last week’s game. We have never used sideline video to obtain a competitive advantage while the game was in progress.” Ah contrition or is that no harm, no foul?

In Formula One racing the fine is much larger. The McLaren racing team must pay $100 million for spying and loses all its team points for the construction title; the drivers are allowed to keep their points and are eligible to win the driver’s title. On a related note, remember James Frey? He had a moving, personal memoir about his struggle with drugs and his wild days called A Million Little Pieces. No. Wait. That was a crock. No matter. Frey now has a new novel coming out. Oh and what about the book that forced the publisher to refund duped readers’ money? It sells around a thousand copies a week.

So where does cheating get punished? The cases above seem to agree with Yahoo columnist Dan Wetzel’s view that “Cheating is everywhere” in sports and that fans really don’t care about cheating. Instead he offers they “want victories and nothing else.” He sums up “Nobody cares. Nothing matters. If you’re not cheating, you’re not trying. Just win, baby.” Wetzel seems a bit overboard, but not too much. More worrisome is the possibility that society really has changed its view of cheating. Sure if one gets caught red-handed, the knee-jerk reaction is talk show emulating outrage and narcissistic assertions regarding how it affected and hurt you. False contrition ensues and allows everyone to feel better. Soon the cheater is redeemed, perhaps even embraced. A true confession and repentance is a powerful phenomenon. The slaps on the wrist and farces of today fall well short of that. Whether the law and the lack of accountability reflect or feed the view that one should win at all costs is a matter for another time, but I do wonder.

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Best Practices for Lawyering: Parrish and Yokoyama on Effective Lawyering

effective lawyering.jpgAusten Parrish and Dennis Yokoyama of Southwestern Law School have a new book out, Effective Lawyering: A Checklist Approach to Legal Writing & Oral Argument. The book takes its own advice. The writing is tight, and each section is almost sparse. Then again the introduction is quite clear. This book is designed as a tool for lawyers and students. It is not an extensive, exhaustive handbook. Instead, the book offers best practices. If one does not know the practices, the book helps identify them. If one knows the practices, the book presents a way to ensure that one follows them.

The first chapter sets forth the elements of effective writing and concludes with a checklist. The next chapters address trial court briefs, appellate briefs, effective oral arguments, interoffice memoranda, letter writing, and academic writing with checklists for all the topics. Each chapter has tips specific to the topic being covered. The tips are a great touch. They reveal fundamental insights that experience teaches and one usually must learn the hard way. The writing samples allow the reader to have a more solid grasp of the lean presentation of writing methods, and the bibliography provides the necessary readings for those who seek greater instruction on any of the covered topics. Without the samples and the bibliography, the text’s usefulness would be much less. With them, however, Parrish and Yokohama present a book that aids the novice, the expert, and anyone in between who strives to improve and maintain high quality skills in writing and all aspects of lawyering.

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A Fellow of Infinite Jest? Platinum and Diamond Skull Sells for ₤50 Million

yorick.JPG

Alas, poor Yorick! I knew him, Horatio: a fellow of infinite jest, of most excellent fancy: he hath borne me on his back a thousand times; and now, how abhorred in my imagination it is! my gorge rims at it.

An artist has taken the skull of a man who died in the 1700s, made a platinum cast, kept the original teeth, and encrusted it with “8,601 near-flawless pave-set diamonds, including a large pink diamond worth more than £4m in the centre of its forehead.” The Financial Times reports that a group of investors that includes the artist has bought the skull so they can put it on tour and then sell it at a later date. The event almost makes Helmsley’s trust for her dog seem like a commonplace and reasonable act.

The claim is that the piece, “For the Love of God” symbolizes “the maximum celebration you could make against death”. Mr. Hirst has also said it is the “the ultimate victory over death, the most you could get from decoration, because our society loves money and wealth”. Infinite jest indeed.

The only pictures of the skull I could find are Getty Images and I think restricted. You can see it here. Besides I think Hamlet’s nod to his dead friend would be less compelling if it were a shiny, enhanced version of his skull. Having just seen an excellent production of the play here in San Diego (and I recommend the Old Globe summer Shakespeare performances should you be in San Diego during their season), I’ll take the older artist’s view that money and wealth seem to have little to do with victory over death. Last I heard, death and taxes are still inevitable. Which is not to say people won’t try to avoid both, but really it seems to be a rather quixotic quest.