Category: General Law


Meet Mrs. Shipley

Is it sensible to analogize between the first decade of the War on Terror and the first decade of the Cold War?  What lessons can we draw from the comparison?  I am finishing a manuscript to be published by the University of Michigan Press with the working title International Travel, National Security, and the Constitution in War and Peace.  In the book, I plan to defend this analogy, at least when it comes to the role travel restrictions have played in the national security policies of that time and our own.

Some officials and experts whom I’ve interviewed for this project thinks that this is a bad idea!  They point to differences they perceive between terrorism, al Qaeda, and asymmetrical warfare on the one hand, and communism, the Soviet Union, and the Cold War balance of power on the other.  But I also think that their reluctance to embrace the analogy is partly driven by the disconcerting feeling that it teaches the wrong lesson.  Maybe we over-reacted then, they sometimes concede, but we are certainly not over-reacting now.  Whatever shadows we boxed during the Red Scare, terrorism today is the real deal.

I’m keeping the analogy as a core feature of my book because I think that history has a lot to teach us.  Back then, very thoughtful people were certain that communism was a clear and present danger that required extraordinary measures to defeat.  The issue isn’t the objective merit of the threat assessment, but how we react to the threats we perceive.  After the break, I’ll give you a taste of this analogy by way of introducing Mrs. Ruth Shipley, whom Time magazine described in 1951 as: “the most invulnerable, most unfirable, most feared and most admired career woman in Government.”  Not only was she powerful, she was also one of a very small cohort of women to rise to the commanding heights of power in the Washington of her day.  Here she is receiving the Distinguished Service Medal from John Foster Dulles:

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Ideas that Don’t Work

Believe it or not, some of my ideas are terrible.  Students or new scholars may have the false impression that people who write a lot never mess up or hit their heads against the wall in frustration.  So I thought I’d talk a little about why, as far as I can tell, some articles work and others do not.

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Time’s Cover Jinx?

Sports fans are probably familiar with Sports Illustrated’s cover jinx. As SI itself explains, “Millions of superstitious readers — and many athletes — believe that an appearance on Sports Illustrated’s cover is the kiss of death.” (The SI jinx timeline really is remarkable, see here.)

So, is the same type of jinx emerging with Time’s “Person of the Year” cover? Richard Nixon receives the honor (for a second time) in 1972, and the Watergate scandal breaks in 1973. Ronald Reagan, Bill Clinton and Barack Obama all receive the honor in the year they are elected President of the United States, and their approval ratings drop dramatically in the following, first year of their presidential terms. “You” receive the honor in 2006, and we all know what happens to the bank accounts of many of those honorees in 2007 and 2008. And now just a month after being named Time’s Person of the Year for 2009, Federal Reserve Chairman Ben Bernanke’s confirmation is in question. (See here and here.)

Admittedly, Chairman Bernanke is controversial. Some believe that he pulled the global economy back from the brink, sparing us from further devastation in another depression. Others believe that he leans too closely towards Wall Street and did not do enough to prevent the economic crisis. But what would a “no” vote at this time mean for the economy? Markets like certainty, and at least Chairman Bernanke is a known quantity, particularly when there is no known “Plan B.” In the end, I suspect that all of the political anxiety about the confirmation will fall into the category of being “much ado about nothing,” (see here) and the political rhetoric of the past week will simply be another example of politicians governing with an eye towards the next election, rather than the long-term interests of the country.

Bair on the Big Picture

As the Dollars & Sense blog notes, Sheila Bair’s testimony before the FCIC was insightful. My favorite lines:

[The financial] crisis represents the culmination of a decades-long process by which our national policies have distorted economic activity away from savings and toward consumption, away from investment in our industrial base and public infrastructure and toward housing, away from the real sectors of our economy and toward the financial sector. . . .Corporate sector practices [have] had the effect of distorting decision-making away from long-term profitability and stability and toward short-term gains with insufficient regard for risk.

Even if GDP goes up, the problems she cites will haunt our economy for years to come. Stopping what Robert Kuttner has termed the “squandering of America” will require more than financial sector reform. But it’s a good place to start.


A correction on the purported “plausible deniability” quote

The Perry hearings have been underway for a few days now, and yesterday’s hearing contained some particularly interesting material.

Yesterday’s hearings certainly contained some helpful material for marriage equality advocates. For instance, as Shannon Minter notes at Pam’s House Blend,

In some of the most dramatic evidence presented to date, Professor Segura commented upon a number of documents that provided a shocking glimpse of just how deeply the Catholic and Mormon churches were involved in supporting Prop 8 and intertwined with the official pro-Prop 8 campaign. “One document sent by executive director of the Conference of Catholic Bishops to bishops in California thanked the Catholic Conference for its “unusual” efforts in supporting Prop 8 and applauded the Mormon church for its “financial, organizational, and managerial contributions” to the campaign.” Other documents detailed the Mormon Church’s extensive collaboration with the campaign, including mobilizing more than 20,000 volunteers and coordinating messaging and fundraising. Professor Segura testified that this level of coordination among powerful religious groups to target a particular group was unprecedented.

All of this is correct; and it’s also correct that the paper trail being established (including yesterday) will be immensely helpful for marriage equality advocates.

However, an overstated report of an “explosive” document about plausible deniability has also been making the rounds. That report is incorrect. Read More


Too Much Skin in the Game or Too Little?

The NYT is reporting today on the Administration’s latest round of proposed regulations for the financial sector.  Among other things, the proposal includes the so-called Volker Rule, which would prohibit proprietary trading by banks.  “Prop trading” is when an institution makes investments in financial assets using its own capital, rather than its clients’ capital.  When an investment banker works with other people’s money, he lives off of commissions.  When he does prop trading, he lives off of the profits from the trade itself.  The idea behind the Volker rule is that prop trading is just too tempting for bankers to handle.  It holds out the possibility of huge profits but by putting the firm’s capital on the line it makes institutions more brittle.  And so President Obama wants to ban it.

It seems to me, however, that there is a real tension between this approach and some of the regulations in the House’s recently passed bill.  In particular, the House bill laid the blame for the financial crisis at least in part on the originate to distribute model of mortgage lending, insisting that from now on banks need to hold at least part of the residual risk for the loans that they originate.  The idea is that when banks have more of a skin in the game, they will not make stupid loans or get swindled by fast talking mortgage brokers selling them subprime junk.  Banning prop trading, however, is all about reducing the amount of skin that the banks have in the game.  After all, playing with your own money — capital — rather than other people’s money is the ultimate skin in the game.  Furthermore, many of the proprietary trades that the Administration is now castigating were in MBSs and CDOs produced by the banks themselves.  In other words, rather than using the OTD model to off load subprime risk, a lot of banks were securitizing pools of mortgages and then buying the resulting securities with their own capital.  In effect, securitization was less about off loading risk than about transforming an illiquid asset into a (supposedly)  liquid asset.

It seems to me that policy makers have a deep schizophrenia in their reactions to the banks, arguing that they were both under- and over-incentivized with regard to mortgage transactions.  Of course, there are other problems with prop trading, including a lack of transparency and the temptation for banks engaging in prop trading to increase their returns by over-leveraging themselves.  Prohibition, however, strikes me as a rather ham fisted response.

UPDATE: Here are Christine Hurt’s thoughts on the announcement.


Tracking Hate Crimes

In my last post, I noted that in the FBI’s compilation of hate crime statistics released a couple months ago, Alabama, Georgia, and Mississippi reported only 24 hate crime incidents over the course of the year to the 1,637 reported in New Jersey, Massachusetts, and Michigan.

I found that shocking and questioned how it was tolerated.

Today, I happened upon a chart made by the Southern Poverty Law Center showing that there are 29 percent more hate groups operating in Alabama, Georgia, and Mississippi than in Massachusetts, Michigan, and New Jersey, which makes me even more convinced that the legal community needs to increase the pressure on these three southern states to seriously track and report hate crimes to the FBI.

One commenter on the last post suggested that the failure of Alabama, Georgia, and Mississippi to report such crimes has to do with an understanding by law enforcement that labeling certain crimes “hate crimes” is likely to prevent prosecutors from gaining convictions because the label threatens to undermine the “biracial consensus they need on juries.” I think that’s an interesting possibility, but even if it is true I don’t think that it ought to be an excuse. In my opinion, identifying certain crimes as “hate crimes” is not simply, as the commenter suggested, a “carpetbagger” worldview. Congress has determined that hate crimes exist and need to be tracked. And, in fact, both Mississippi and Alabama appear to have statutes that criminalize certain bias-motivated violence and intimidation.

It’s time for all states to get serious about eradicating hate-fueled criminal action and figuring out when, where, and how it occurs is a critical first step.


3rd Annual National Security Law Faculty Workshop/IHL Training Event

Wouldn’t it be wonderful if there were an academic conference at which you could work through tough national security law issues by day, then hit the ice to train with the fastest, toughest, and most talented hockey players in the International Hockey League (IHL)?

Alas, there is no such event and I doubt there ever will be.  But the very next best thing is a workshop that will take place at the University of Texas at Austin on April 1 and 2.  In this context, IHL stands for International Humanitarian Law, of course, although I’m sure that Wayne Gretzky and his friends would be welcome guests. 

This workshop is unlike any that you may have ever attended before.  The traditional elements are all there: presentations of academic papers, discussants, serious exchanges between scholars interested in a friendly environment at which to try new ideas.  But this workshop adds something new and exciting.  For the third year in a row, instructors from the U.S. Army Judge Advocate General’s Legal Center and School and instructors from the International Committee of the Red Cross (ICRC) will provide their perspectives on international humanitarian law in training blocks interspersed between the academic papers. 

The event is sponsored this year by the Strauss Center for International Security and Law and the ICRC.  The co-hosts are Professor Bobby Chesney (UT Austin) and Professor Geoffrey Corn (South Texas College of Law).  More details, including deadlines, are available here.

I attended the first two iterations of this workshop and came away each time thinking it was the best event I attended that year.


Law and Democracy Symposium

The Indiana Law Review, with the help of my colleague Mike Pitts, will be holding an all-star symposium on election law issues here at the IU–Indianapolis Law School on April 8-9.  Heather Gerken will be giving the keynote address, while others expected to attend include Nate Persily and Michael Kang.


Turning up the Pressure on Alabama, Mississippi, and Georgia

Doing a little research for an article, I was just looking at a table from the FBI’s compilation of hate crime statistics broken down by state, released last November.

I was aware that, although the Attorney General is required to collect data on crimes manifesting evidence of prejudice, the compiled statistics are notoriously unreliable because of reporting problems; however, until I looked at the chart, I didn’t understand the degree to which certain states take the reporting seriously and others don’t.

In 2008, New Jersey reported 744 incidents, Massachusetts reported 333, and Michigan reported 560.

During that same time period, Alabama reported 11 incidents, Mississippi reported 4, and Georgia reported 9.

Particularly given the history of discrimination, intimidation, and violence against minorities in those three southern states, I don’t understand how this blatant failure to cooperate with the data collection is tolerated.

Lack of political will? An ambivalent media establishment? The haze of “post-racialism”?

Can anyone fill me in?

Oh, and happy MLK Day.