Category: International & Comparative Law

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Global Trends To Mitigate Local Special Interests: India and Antitrust

IndianSchoolofBusiness.jpgIndia has a booming economy and although China gets much of the press regarding new economic power, India is usually mentioned as right behind. Indeed, James Wolfensohn, former head of the world bank, has specifically argued that India and China will return to commanding a large portion of the world’s GDP. Thus when India recently tried to change or update its merger laws, the idea was to improve the law so it would keep pace with the potential for economic growth. The law as intended and the law as passed, however, seem to be quite different. The Deal reports that “The new law requires companies with as little as $126 million of assets in India, even if they are only subsidiary operations, to notify officials there of any acquisition from around the globe. Reporting the merger plans and waiting 210 days before completing the deal would be required even if the target is not located in India and doesn’t do any business there.” As such the ABA and several other attorney groups have contacted the Indian government to urge it to change the law which they see as a anticompetitive.

It is entirely possible that the law was not only went “in a different direction during the give and take in Parliament” but reflects some real concerns any developing country will have about corporate law. Those concerns are not clear in the article and should be taken seriously. But taken at face value this situation offers a view of a potential way to see how government may take advantage of international law or at least how global trade can influence the voices in a debate. In one scenario an administration may bow to local interests and protectionist impulses. It may then engage in international deals or even treaties. When the two conflict, the international treaty may demand that the local laws are harmonized and the previous law could change (There are of course many steps and debates to be had over the conflcits between international and domestic law. Still, intellectual property law offers an example of possibly using international norms to achieve one interest group’s (i.e. the copyright industry’s) objectives). This process is not necessarily laudable as the local interests may be undercut and the democratic aspect of lawmaking comes into question. Nonetheless, it is a way the process may proceed.

Alternatively, it seems that the outside voices may provide more information and perspectives regarding the true ramifications of certain laws. If so, the advantage would be that the government may move slower and have too many compromises based on internal pressures, but international groups indicating how they view the law at least ensures that the government has a better sense of the impact of the law at both the domestic and international levels.

image credit: Indian School of Business from WikiCommons

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Privacy’s Other Path: Recovering the Law of Confidentiality

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Dan and I have just uploaded the final published version of our article, Privacy’s Other Path: Recovering the Law of Confidentiality up on SSRN. The paper is in print in the latest volume of the Georgetown Law Journal and we’re both very excited it’s out. Our paper tells the story of how privacy and confidentiality law diverged in Britain and America after 1890, how they have begun to converge once again in recent years, and how the law of confidentiality holds great promise for American law as it continues to grapple with the problems of personal information. Here’s the abstract:

The familiar legend of privacy law holds that Samuel Warren and Louis Brandeis invented the right to privacy in 1890, and that William Prosser aided its development by recognizing four privacy torts in 1960. In this article, Professors Richards and Solove contend that Warren, Brandeis, and Prosser did not invent privacy law, but took it down a new path. Well before 1890, a considerable body of Anglo-American law protected confidentiality, which safeguards the information people share with others. Warren, Brandeis, and later Prosser turned away from the law of confidentiality to create a new conception of privacy based on the individual’s inviolate personality. English law, however, rejected Warren and Brandeis’s conception of privacy and developed a conception of privacy as confidentiality from the same sources used by Warren and Brandeis. Today, in contrast to the individualistic conception of privacy in American law, the English law of confidence recognizes and enforces expectations of trust within relationships. Richards and Solove explore how and why privacy law developed so differently in America and England. Understanding the origins and developments of privacy law’s divergent paths reveals that each body of law’s conception of privacy has much to teach the other.

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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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Here’s a trivia question for you: What is soon to be the world’s first “carbon neutral” state?

Answer: The Vatican, which has just announced a partnership with Klimafa, a Hungarian start-up company, to help restore an ancient forest by planting trees on a 37-acre tract of land along the Tisza River in Hungary. The tract will be renamed, appropriately enough, the “Vatican climate forest,” and will reportedly offset all of the Vatican’s carbon dioxide emissions for 2007. The project is part of the Vatican’s ongoing efforts to “go green”, in keeping with Pope Benedict’s admonition to the international community to “respect and encourage a ‘green culture’”.

To my mind, this is a terrific example of the positive, creative role that emerging transnational public-private partnerships of all kinds can play in finding solutions to problems as intractable as global climate change. And this is a particularly intriguing example of a transnational public-private partnership, encompassing cooperative relationships between the Vatican, the Hungarian government, and private industry. As Elisabeth Rosenthal of the New York Times points out, this is a win-win for all concerned: The Vatican gets to set an example for the international community, and gets some great press for its efforts. Hungary (whose government scientists will be consulting on the reforestation project) gets abandoned, denuded land restored as native forest. The project will be great for the local “climate” (it will provide much-needed jobs in the area), and will have a beneficial impact (if only symbolically) on the global climate, as well. And last (but certainly not least, in my mind), the Hungarian start-up “gets the Vatican’s seal of approval and free publicity for its first project.”

Of course, the carbon offset idea is still novel and the subject of fierce debate among environmental law and policy experts – a debate that I am not even remotely qualified to take up. But I am intrigued by the emergence of transnational public-private partnerships of this kind: It strikes me as an extraordinarily important phenomenon, and one that has the potential to transform the way that international law and policy is created and implemented.

Does anyone know of academic research (legal or otherwise) being done on the emergence of these sorts of transnational public/private partnerships? I’d like to learn more about it.

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AALS Call for Papers: New Voices in Human Rights

From the AALS International Human Rights Law Section:

The International Human Rights Law Section is reminding interested individuals that it will repeat its popular “New Voices” program to assist faculty members and other scholars who have not previously had an opportunity to present a scholarly paper at an AALS annual meeting. The program will be Friday, January 4, 2008, from 10:30 a.m. to 12:15 p.m. This is considered by many to be a “prime time slot” at the AALS annual meeting, during which new scholars will summarize recent scholarship and academic works in progress. Individuals who are interested in being considered for the “New Voices” panel should submit an abstract of one to three pages describing their research or scholarship.

Abstracts of one to three pages of a topic for presentation should be submitted by Wednesday, October 10, 2007 to Mark E. Wojcik at The John Marshall Law School, 315 S. Plymouth Court, Chicago, IL 60604, or by email (preferred) at 7wojcik@jmls.edu. This is an extension of the previous deadline, which was September 26, 2007. Abstracts will be reviewed by a special committee and selections made for the final program presentation. We hope to maximize the number of possible presenters.

A completed paper is not necessary, only the abstract setting forth the main ideas of the presenter. The committee hopes that eliminating the requirement of submitting a finalized paper will encourage the submission this year of more “works-in-progress” and will also allow the final papers to incorporate comments and answer questions raised during the “New Voices” panel. This is expected to be a popular and supportive panel to promote human rights scholarship. Proposals chosen will have about 10 minutes to present their paper, to be followed by discussion of all the presentations.

Guantanamo in Second Life

As part of our Constitution Day program, Seton Hall Law School will be participating in metaversal simulation Second Life. The program “will be webcast in a virtual Guantanamo Bay detention center on Second Life:”

The virtual detention center was developed . . . by Nonny de la Peña, producer and director of the documentary “Unconstitutional: The War on Our Civil Liberties,” and Peggy Weil, professor of interactive media at the University of Southern California. “What we hope to create is a virtual platform where people from around the world can gather together to discuss important social justice issues,” said [Seton Hall Professor Mark] Denbeaux, who also is the author of the “Guantanamo Reports,” detailing the status of detainees at the military prison camp. “As an Internet-based virtual world, Second Life will allow us to conduct a broad and diverse debate on a wide range of political, legal and international issues.”

Some say virtual worlds are the future of online commerce, and perhaps online education as well. More information on how to participate available below. . .

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The Countermajoritarian Difficulty, Turkish Style

turkey_flag_large.bmpTurkish politics are interesting. One of the largest Islamic countries on earth, it is — by Middle Eastern standards — an extremely stable and even moderately liberal regime. You wouldn’t want to get too gushy about Turkey. They do all sorts of nasty things from time to time in the Kurdish regions of the country, for example. Still, they have regular and more or less contested elections and moderately smooth transfers of power from one party to another, not something that you can say about too many countries in their neighborhood. Things, however, are a bit more complicated than this. The recent election of Abdullah Gul to the presidency illustrates why. Gul is the standard bearer for the Justice and Development Party, a moderate Islamicist group. Back in the day, he was the foreign minister of an earlier Islamicst government that was deposed by a military coup. The question is whether the Turkish Army will now oust him from power.

The Turkish military does this from time to time. They see their role — when not suppressing the Kurdish minority — as safe-guarding the secular constitution set up by Kamal Ataturk after the fall of the Sultanate at the end of World War I. Accordingly, they feel fully justified from time to time in deposing duly elected governments that get too enthusiastic about political Islam. It is easy, of course, for Americans to get sanctimonious about such things. For all of the anxiety that some feel about the military-industrial complex, the American military does a pretty good job at maintaining political neutrality and subservience to civilian leadership. No one but conspiracy-theory wingnuts expects the Pentagon to mount a coup if they are unhappy with election results. How horrible, we say, that the Turkish military feels justified in thwarting the will of the people.

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Beware the Teenie Weenie: Social Norms and Expressive Culture

teenieweenie.jpgI’ve been doing a lot of reading and thinking about intellectual freedom lately, as part of a project on the overlap between intellectual privacy rules and First Amendment values. I’ve also come across some pretty weird stuff, like this story from the German media about a children’s book deal that fell through. A famous German children’s book author was trying to get a book deal to publish a translated version of her illustrated children’s book in the US. Unfortunately, the deal didn’t happen after an irreconcilable disagreement arose over a picture appearing in a museum scene in the book. As the article puts it rather cheekily:

What could possibly have got the suits at [the publisher] so hot under the overly starched collar? A painting depicting a gratuitous Roman orgy being viewed by wide-eyed 5-year olds? A massive bronze phallus gawped at by an awestruck group of pre-teens? Hardly. Apart from a tasteful nude reclining in a slightly blurred watercolor in the background, the main offending artifact was a tiny male statue and its microscopic penis.

Apparently, the offending image was less than half a millimeter in size, but the publisher insisted on its removal for fear of a backlash from offended parents.

We could dismiss this as a fairly silly story about the lunacy of the publishing industry, but I think there is a serious issue here. This is not an issue of censorship, because the government is not involved in making the book unavailable. But one of the problems with the way we tend to think about speech, is that we are fixated on the model of legislative rules that get remedied (or not) by judges. If we’re really interested in promoting an expressive culture, we need to look beyond this judicial anti-censorship model.

The teenie weenie case points up the critical role of social norms in helping to define the contours of our expressive culture. Theories of free speech focus a great deal on legal rules even though most people’s decision to speak or not speak on questions is principally mediated by the concern of how others (employers, friends, strangers, book publishers) will act towards us depending upon what we say. The norms of the book publisher in this case meant that this book was not made available for the US market.

What’s the harm with that? Well, the ability to think for ourselves requires access to a wide variety of materials. When books aren’t published because they are offensive, we are deprived of what they offer. This case involves just one book, but the aggregated effect of small decisions like this really determines the intellectual space that our minds inhabit. The social norms which this decision seems to reflect would (if strong enough) push certain notions of art out of children’s literature, and could have an effect on how children come to see the world, the nature of art, and the human body. Publishers of books are in business to make money, but they should also realize (as reporters and librarians frequently do) that they occupy a social institution that has real effects on our expressive culture. Our expressive culture depends on publishers fulfilling their professional role as guardians of free speech as well as profit-maximizers. Wimping out because of possibly imaginary fears of angry parents does us all a disservice, at least if we care more about an open-minded culture than protecting people (even little ones) from the teenie weenie.

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“Bad Thai cops to endure Kitty shame”

This one was just too good to pass up — both for the headline, above, and for the story itself. From the Associated Press:

BANGKOK, Thailand – Thai police officers who break rules will be forced to wear hot pink armbands featuring “Hello Kitty,” the Japanese icon of cute, as a mark of shame, a senior officer said Monday.

Police officers caught littering, parking in a prohibited area, or arriving late — among other misdemeanors — will be forced to stay in the division office and wear the armband all day, said Police Col. Pongpat Chayaphan. …

The striking armband features Hello Kitty sitting atop two hearts.

“Simple warnings no longer work. This new twist is expected to make them feel guilt and shame and prevent them from repeating the offense, no matter how minor,” said Pongpat, acting chief of the Crime Suppression Division in Bangkok.

“(Hello) Kitty is a cute icon for young girls. It’s not something macho police officers want covering their biceps,” Pongpat said.

Indeed.

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Piercing the Veil of Anonymous Bloggers

Lives of Others Picture.jpgI’m delighted to be guest-blogging at Concurring Opinions, and thanks to the crew here for the invitation! I regularly blog to a much smaller audience at Info/Law (and will cross-post most of these guest appearances over there), but it will be fun to discuss a somewhat wider variety of topics here. That said, it turns out my first entry is at the heart of information regulation.

Brian Leiter notes this news story about a South Korean law which has just taken effect, requiring large web sites to obtain real names and the equivalent of Social Security numbers from everyone who posts content. He compares this approach to that taken in the US where, he says, “there exist only private remedies against Internet sociopaths and misogynistic freaks who hide behind anonymity. I suppose time will tell which is the better approach.”

Personally, I don’t need to wait for the passage of time to criticize the South Korean initiative (which has been under discussion there for some four years). Obviously, this law arises in a cultural context very different from our own, which I believe explains a good deal of the difference in approach. And it may not even be as different as it first appears. But there are principled reasons, distinct from cultural ones, to oppose a “show me your papers” internet.

First and foremost, it should be no surprise that China reportedly is looking at a similar model — as a technique to curb dissent, not just cyberbullying. (If you have seen the film The Lives of Others, pictured above — and you really should see it — you will remember how it portrayed East Germany registering typewriters.) The ability to remain anonymous protects unpopular speakers who might otherwise be unable to spread their ideas. In some countries, anonymous bloggers risk life and limb. Despite massive internet filtering by governments, blogging still provides dissidents a powerful tool. Even in more democratic countries, whistleblowers, political outsiders, and unhappy employees use anonymous blogging to avoid retribution. An outright ban on anonymity will curtail such often-useful speech.

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