Politics, Economics and other Stuff

Pater Galbraith News

The NYT reports:

Peter W. Galbraith, an influential former American ambassador, is a powerful voice on Iraq who helped shape the views of policy makers like Joseph R. Biden Jr. and John Kerry. In the summer of 2005, he was also an adviser to the Kurdish regional government as Iraq wrote its Constitution — tough and sensitive talks not least because of issues like how Iraq would divide its vast oil wealth.

Now Mr. Galbraith, 58, son of the renowned economist John Kenneth Galbraith, stands to earn perhaps a hundred million or more dollars as a result of his closeness to the Kurds, his relations with a Norwegian oil company and constitutional provisions he helped the Kurds extract.

In the constitutional negotiations, he helped the Kurds ram through provisions that gave their region — rather than the central Baghdad government — sole authority over many of their internal affairs, including clauses that he maintains will give the Kurds virtually complete control over all new oil finds on their territory.

Mr. Galbraith, widely viewed in Washington as a smart and bold foreign policy expert, has always described himself as an unpaid adviser to the Kurds, although he has spoken in general terms about having business interests in Kurdistan, as the north of Iraq is known.

So it came as a shock to many last month when a group of Norwegian investigative journalists at the newspaper Dagens Naeringsliv began publishing documents linking Mr. Galbraith to a specific Norwegian oil company with major contracts in Iraq.

Interviews by The New York Times with more than a dozen current and former government and business officials in Norway, France, Iraq, the United States and elsewhere, along with legal records and other documents, reveal in considerable detail that he received rights to an enormous stake in at least one of Kurdistan’s oil fields in the spring of 2004.

As it turns out, Mr. Galbraith received the rights after he helped negotiate a potentially lucrative contract that allowed the Norwegian oil company DNO to drill for oil in the promising Dohuk region of Kurdistan, the interviews and documents show.

He says his actions were proper because he was at the time a private citizen deeply involved in Kurdish causes, both in business and policy.

When drillers struck oil in a rich new field called Tawke in December 2005, no one but a handful of government and business officials and members of Mr. Galbraith’s inner circle knew that the constitutional provisions he had pushed through only months earlier could enrich him so handsomely.

As the scope of Mr. Galbraith’s financial interests in Kurdistan become clear, they have the potential to inflame some of Iraqis’ deepest fears, including conspiracy theories that the true reason for the American invasion of their country was to take its oil. It may not help that outside Kurdistan, Mr. Galbraith’s influential view that Iraq should be broken up along ethnic lines is considered offensive to many Iraqis’ nationalism. Mr. Biden and Mr. Kerry, who have been influenced by Mr. Galbraith’s thinking but do not advocate such a partitioning of the country, were not aware of Mr. Galbraith’s oil dealings in Iraq, aides to both politicians say.

Some officials say that his financial ties could raise serious questions about the integrity of the constitutional negotiations themselves. “The idea that an oil company was participating in the drafting of the Iraqi Constitution leaves me speechless,” said Feisal Amin al-Istrabadi, a principal drafter of the law that governed Iraq after the United States ceded control to an Iraqi government on June 28, 2004.

In effect, he said, the company “has a representative in the room, drafting.”

DNO’s chief executive, Helge Eide, confirmed that Mr. Galbraith helped negotiate the Tawke deal and advised the company during 2005. But Mr. Eide said that Mr. Galbraith acted solely as a political adviser and that the company never discussed the Constitution negotiations with him. “We certainly never did give any input, language or suggestions on the Constitution,” Mr. Eide said.

When the findings based on interviews by The Times and other research were presented to Mr. Galbraith last weekend, he responded in writing to The Times, confirming that he did work as a mediator between DNO and the Kurdish government until the oil contract was signed in the spring of 2004, and saying that he maintained an “ongoing business relationship” with the company throughout the constitutional negotiations in 2005 and later.

Mr. Galbraith says he held no official position in the United States or Iraq during this entire period and acted purely as a private citizen. He maintains that his largely undeclared dual role was entirely proper. He says that he was simply advocating positions that the Kurds had documented before his relationship with DNO even began.

“What is true is that I undertook business activities that were entirely consistent with my long-held policy views,” Mr. Galbraith said in his response. “I believe my work with DNO (and other companies) helped create the Kurdistan oil industry which helps provide Kurdistan an economic base for the autonomy its people almost unanimously desire.”

“So, while I may have had interests, I see no conflict,” Mr. Galbraith said.

Kurdish officials said that they were informed of Mr. Galbraith’s work for DNO and that they still considered him a friend and advocate. Mr. Galbraith said that during his work on the Constitution negotiations, the Kurds “did not pay me and they knew I was being paid by DNO.”

Mr. Istrabadi, who was also the Iraqi ambassador to the United Nations from 2004 to 2007, said the case was especially troubling given the influence of Mr. Galbraith’s policy views. In his writings — some of them on the Op-Ed page of The Times and in the New York Review of Books — he is generally identified as a former ambassador or with some other generic description that gives no insight into his business interests in the area.

Mr. Galbraith, for many years on the staff of the Senate Foreign Relations Committee, has a long relationship with the Kurds. In 1988, he documented Saddam Hussein’s systematic campaign against the Kurds, including the use of gas. He served as United States ambassador to Croatia between 1993 and 1998. In September, he was fired as the No. 2 official with the United Nations mission in Afghanistan after he accused the head of the mission of concealing allegations of electoral fraud.

Views of Mr. Galbraith’s business ties are harsh within the central Baghdad government, which has long maintained, in stark opposition to Mr. Galbraith’s interpretation of the Constitution, that all the oil contracts signed by the Kurdish government were illegal.

Referring to the Constitution negotiations, Abdul-Hadi al-Hassani, vice chairman of the oil and gas committee in the Iraqi Parliament, said that Mr. Galbraith’s “interference was not justified, illegal and not right, particularly because he is involved in a company where his financial interests have been merged with the political interest.”

Citing what he said were confidentiality agreements, Mr. Galbraith refused to give details of his financial arrangement with the company, and the precise nature of his compensation remains unknown. But several officials, including Mr. Galbraith’s business partner in the deal, the Norwegian businessman Endre Rosjo, said that in addition to whatever consulting fees the company paid, he and Mr. Galbraith were together granted rights to 10 percent of the large Tawke field and possibly others.

An internal DNO document dated Dec. 3, 2006, which was first obtained by Dagens Naeringsliv, indicates that a company called Porcupine, registered in Delaware under Mr. Galbraith’s name, still held the rights to the 5 percent stake at that time, while a company associated with Mr. Rosjo held the other 5 percent.

Mr. Eide, the DNO executive, said that as far as the company knew, Mr. Galbraith’s work was proper.

“To our knowledge, Mr. Galbraith in 2004 was working as a businessman with no political assignments,” Mr. Eide said. “Given our network model and limited experience and knowledge from the region at that time, our evaluation concluded that we should use Mr. Galbraith to advise DNO in the first stage of the project.”

As revelations began appearing in recent weeks, Mr. Galbraith at first issued qualified denials stating that he had never been party to any arrangement in Iraq technically referred to in the oil industry as a production-sharing contract. But industry insiders say that the rights could have been couched in different terms — not an ownership stake, but a conditional right or option to become part of such an agreement at a future date.

Estimating the value of any stake in the Kurdish fields is difficult given the political uncertainties. But Are Martin Berntzen, an oil analyst at Oslo’s First Securities brokerage, said the Tawke field alone has proven reserves of about 230 million barrels, a figure likely to increase as new wells are drilled.

“Given no political risk, a 5 percent stake should be worth at least $115 million,” he said, though he emphasized that he knew nothing about Mr. Galbraith’s arrangement.

A possible indication of Mr. Galbraith’s estimate of the deal’s worth may be discerned in a London arbitration case in which Porcupine and a Yemeni investor who now apparently holds Mr. Rosjo’s former share are seeking more than $525 million from DNO, according to a filing reported on the legal news Web site Law.com. Oil analysts in Norway played down the likelihood of a reward as large as the claim.

According to DNO, the claim represents up to 10 percent of the value of the regional production contract, which the Norwegian oil firm now shares with a Turkish energy company after Kurdish authorities reviewed the previous deal and barred “certain third-party interests” from participating further. At a shareholders meeting on Wednesday, Mr. Eide refused to name Mr. Galbraith as a claimant in the case. He acknowledged, however, that DNO lost a procedural ruling in the case last May, and he said a final decision on damages was expected in early 2010.

In his response, Mr. Galbraith would say only that “my contractual relationship was with DNO and is the subject of pending arbitration.”

The German Constitutional Court in the European Polity

via Legal Theory Blog, I see that Daniel Halberstam and Christoph Möllers have some harsh/shrill criticism of the German Constitutional Court.  I sort of follow this as a topic, but mostly because I don't know how it will come out. 

Daniel Halberstam and Christoph Möllers (University of Michigan Law School and University of Goettingen) have posted The German Constitutional Court Says 'Ja Zu Deutschland!' (German Law Journal, Vol. 10, No. 8, 2009) on SSRN. Here is the abstract:

In announcing the decision of the Bundesverfassungsgericht (“Federal Constitutional Court” or “FCC”) on the constitutionality of the Lisbon Treaty, the Presiding Justice of the Second Senate summed up the judgment by proclaiming: “The German Basic Law says “yes” to the Treaty of Lisbon.” The decision has since received much praise from commentators for having struck down only the existing version of an accompanying federal law while preserving Germany’s ratification of the Treaty more broadly. The decision is thus likened to another act of judicial cooperation, the FCC’s 1992 decision on the Maastricht Treaty.

This short comment explains what is old and what is new about the FCC’s current decision about Europe. The comment exposes the FCC’s highly deceptive invocation of having taken a “Europe-friendly” stance in interpreting the German Basic Law. The discussion exposes the myriad contradictions within the opinion and the decision’s strange consequences both in terms of the concrete workings of the European Union and in terms of its grand theory of democracy. The comment highlights the FCC’s mistaken understanding of the European Parliament, the profound failure of the Court’s reflexive idea of state sovereignty, and the way in which the opinion condemns Europe to a perpetual state of deficiency. In all this, the Federal Constitutional Court installs itself as the sole arbiter of Germany’s constitutional destiny - even above the people themselves.

A subversive opinion with more twists and turns than even the FCC itself comprehends, the decision ultimately stands as a crude speech act asserting little more than the power of the Court itself.

To quote: ...well, I was going to quote, but the pdf is causing problems with formatting if I cut and paste. 

The decision doesn't seem that bad to me, it mostly seems to require that the German people voice their desire to transfer aspects of sovereignty to the EU more explicitly, not clearly a bad thing and maybe something you'd expect constitutional courts to require. If the court tries to gum up that process to much there might be a problem, but I don't see that yet.  This isn't the US supreme court.

Ernst Freund, Felix Frankfurter and the American Rechtsstaat: A Transatlantic Shipwreck, 1894-1932

Dan Ernst, Ernst Freund, Felix Frankfurter and the American Rechtsstaat: A Transatlantic Shipwreck, 1894-1932

From the passage of the Interstate Commerce Act of 1887 through the New Deal, American legislators commonly endowed administrative agencies with broad discretionary power. They did so over the objections of an intellectual founder of the American administrative state. The American-born, German-educated lawyer and political scientist Ernst Freund developed an Americanized version of the Rechtsstaat—a government bound by fixed and definite rules—in an impressive body of scholarship between 1894 and 1915. In 1920 he eagerly took up an offer from the Commonwealth Fund to finance a comprehensive study of administration in the United States. Here was his chance to show that a Continental version of the Rule of Law had come to America. Unfortunately for Freund, the Commonwealth Fund yoked him to the Austrian-born, American-educated Felix Frankfurter, a celebrant of the enlightened discretion of administrators. Freund's major publication for the Commonwealth Fund, Administrative Powers over Persons and Property (1928), made little impression on scholars of administrative law, who took their lead from Frankfurter. Today the Rechtsstaat is largely the beau ideal of libertarian critics of the New Deal; few recognize that it is also part of the diverse legacy of Progressive reform.

On not enforcing the law

More troublesome weirdness from the US criminal justice system, as Slate reports:

In 1983, New York's high court struck down as unconstitutional a 1960s-era provision that made it illegal to cruise—that is, to hit on someone in a public place. And yet in the 26 years since, on thousands of occasions, the New York Police Department has continued to enforce the defunct law, historically used to target gay people.

The defendant in the 1983 case was a gay man arrested for striking up a conversation with a plainclothes police officer and asking him back to his house for sex. The court threw out the anti-cruising law, reasoning that the state couldn't criminalize an act anticipatory to sodomy when sodomy itself was constitutionally protected. (Two years earlier, the same court had found the state's anti-sodomy law unconstitutional.)

Whatever one may think of cruising and whether it should be prohibited, the court's ruling should have killed off the statute. Instead, in the 26 years of this law's odd posthumous career, district attorneys brought 4,750 prosecutions and judges convicted 2,550 defendants. For violating an imaginary law, these defendants paid a decidedly non-imaginary $70,000 in bail and $190,000 in court fees and fines. In the last 10 years, NYPD officers also issued 9,693 citations, forcing citizens to pay $71,000 in fees. The criminal records of these victims have never been expunged and the fees and fines have not been refunded. ...

In March 2008, civil rights lawyers brought a class action in federal court on behalf of the thousands of people unconstitutionally arrested, cited, and prosecuted under the defunct anti-cruising law. In May, Judge Shira Scheindlin ordered the City of New York to send letters to the police, district attorneys, and trial judges to remind them that the anti-cruising law was void and should no longer be enforced. NYPD brass sent out a bulletin to officers stating that in each officer's personal copy of the penal code, the law should be "stricken by drawing a line through it in black ink." (After 26 years, the law was still on the books because the legislature had never repealed it.)

Apparently, the NYPD ran out of black ink. From the day that the bulletin went out until now, hundreds of additional summonses for cruising have been issued. Celeste Koeleveld, of the New York City Law Department, says that the NYPD has taken "many proactive steps to address the issuance of any summonses" under unconstitutional laws. But the most recent summons for violating the anti-cruising law was issued in September 2009—nearly a year and a half after the NYPD's bulletin went out. "It is truly shocking that after 26 years and multiple court orders, they just can't stop doing it," said McGregor Smyth, a lawyer at the Bronx Defenders who is counsel for the plaintiffs in the class action. The NYPD did not respond to several requests for comment.

The lack of a citation to the 1983 does raise a red flag on the reporting and I cannot find other sources online.  via Sullivan

'Inquiry fails to find single trafficker who forced anybody into prostitution'

It seems the UK has been running a large scale police operation to attack trafficking in women this year, and The Guardian writes up the results very forcefully -- quite astounding press coverage from a top tier newspaper.  Not sure what to make of this, but I it would be good to know more.  Part of the context is a new criminal bill before Parliament.  Two articles: 

The UK's biggest ever investigation of sex trafficking failed to find a single person who had forced anybody into prostitution in spite of hundreds of raids on sex workers in a six-month campaign by government departments, specialist agencies and every police force in the country.

The failure has been disclosed by a Guardian investigation which also suggests that the scale of and nature of sex trafficking into the UK has been exaggerated by politicians and media.

Current and former ministers have claimed that thousands of women have been imported into the UK and forced to work as sex slaves, but most of these statements were either based on distortions of quoted sources or fabrications without any source at all.

While some prosecutions have been made, the Guardian investigation suggests the number of people who have been brought into the UK and forced against their will into prostitution is much smaller than claimed; and that the problem of trafficking is one of a cluster of factors which expose sex workers to coercion and exploitation. ...

When police in July last year announced the results of Operation Pentameter Two, Jacqui Smith, then home secretary, hailed it as "a great success". Its operational head, Tim Brain, said it had seriously disrupted organised crime networks responsible for human trafficking. "The figures show how successful we have been in achieving our goals," he said.

Those figures credited Pentameter with "arresting 528 criminals associated with one of the worst crimes threatening our society".  But an internal police analysis of Pentameter, obtained by the Guardian after a lengthy legal struggle, paints a very different picture.

The analysis, produced by the police Human Trafficking Centre in Sheffield and marked "restricted", suggests there was a striking shortage of sex traffickers to be found in spite of six months of effort by all 55 police forces in England, Wales, Scotland and Northern Ireland together with the UK Border Agency, the Serious and Organised Crime Agency, the Foreign Office, the Northern Ireland Office, the Scottish government, the Crown Prosecution Service and various NGOs in what was trumpeted as "the largest ever police crackdown on human trafficking".

The analysis reveals that 10 of the 55 police forces never found anyone to arrest. And 122 of the 528 arrests announced by police never happened: they were wrongly recorded either through honest bureaucratic error or apparent deceit by forces trying to chalk up arrests which they had not made. Among the 406 real arrests, more than half of those arrested (230) were women, and most were never implicated in trafficking at all.

Of the 406 real arrests, 153 had been released weeks before the police announced the success of the operation: 106 of them without any charge at all and 47 after being cautioned for minor offences. Most of the remaining 253 were not accused of trafficking: 73 were charged with immigration breaches; 76 were eventually convicted of non-trafficking offences involving drugs, driving or management of a brothel; others died, absconded or disappeared off police records.

Although police described the operation as "the culmination of months of planning and intelligence-gathering from all those stakeholders involved", the reality was that, during six months of national effort, they found only 96 people to arrest for trafficking, of whom 67 were charged.

Forty-seven of those never made it to court.

Only 22 people were finally prosecuted for trafficking, including two women who had originally been "rescued" as supposed victims. Seven of them were acquitted. The end result was that, after raiding 822 brothels, flats and massage parlours all over the UK, Pentameter finally convicted of trafficking a grand total of only 15 men and women.

Police claimed that Pentameter used the international definition of sex trafficking contained in the UN's Palermo protocol, which involves the use of coercion or deceit to transport an unwilling man or woman into prostitution. But, in reality, Pentameter used a very different definition, from the UK's 2003 Sexual Offences Act, which makes it an offence to transport a man or woman into prostitution even if this involves assisting a willing sex worker.

 Internal police documents reveal that 10 of Pentameter's 15 convictions were of men and women who were jailed on the basis that there was no evidence of their coercing the prostitutes they had worked with. There were just five men who were convicted of importing women and forcing them to work as prostitutes. These genuinely were traffickers, but none of them was detected by Pentameter, although its investigations are still continuing.

 Two of them — Zhen Xu and Fei Zhang — had been in custody since March 2007, a clear seven months before Pentameter started work in October 2007.

The other three,  Ali Arslan, Edward Facuna and Roman Pacan,  were arrested and charged as a result of an operation which began when a female victim went to police in April 2006, well over a year before Pentameter Two began, although the arrests were made while Pentameter was running.

It appears that in the UK criminal cases actually go to court.  In the US most accused plea bargain, since going to court is too risky, which means that the US court system doesn't reign in enforcement panics like this one in the UK.  This also appears to mean that lesser charges in the UK actually mean the main charge couldn't be proven, not that a plea was entered to a lesser charge in exchange for the main charge being dropped.  But that's me speculating...

Not the sort of press coverage I'd like to wake up to if I were involved. 

The Decline of Jury Trials

Sentencing Law & Policy reminds me that the jury trial is in decline in my new home state, as it is everywhere, see for instance George Fisher's Plea bargaining's triumph: a history of plea bargaining in America.  How well known is this to the general public?  People who pay attention obviously know. 

Here is part of the article in the News Virginian, but read the whole thing:

Jury trials remain a favorite of American film and literature but not of the criminal-justice system, where their use long has been in decline here and across the country. The trend has accelerated in recent decades as tougher sentencing laws leave more defendants unwilling to assert a right found in Magna Carta and the U.S. Constitution and that is recognized by all states.

In the year that ended June 30, 2008, little more than 1 percent of felony convictions in Virginia courts were at the hands of jurors. Nearly 90 percent were the result of guilty pleas and the rest in trials before judges.

Guilty pleas help keep courts running efficiently, but as relatively fewer people perform one of the most serious of civic duties, experts believe public confidence in the criminal-justice system, if not justice itself, might suffer.

Josh Bowers, a professor of law at the University of Virginia, said, “We’re already at what would seem to be almost a bare minimum of jury trials for a criminal-justice system that recognizes a jury trial right.” It did not happen overnight.

Thirty years ago, Albert Alschuler, a law professor at the University of Chicago, complained in Time magazine that “here we have an elaborate jury trial system and only 10 percent of the accused get to use it.” “That’s like solving America’s transportation problems by giving 10 percent Cadillacs and making the rest go barefoot,” he said. Reached by telephone recently, Alschuler said “things are much worse” these days.

“Trials and, especially, sentencing proceedings have become ever more complicated, and legislatures have made many additions to the prosecutors’ ‘tool kit,’” he said. The jury trial rate has been cut in half across the country — even more so in Virginia — since Alschuler’s complaint of 1978....

According to the Virginia Criminal Sentencing Commission, in the year that ended June 30, 2008, juries were responsible for just 1.3 percent of 27,195 felony convictions in Virginia — the lowest percentage yet recorded by the commission. Nationally, of the more than 1 million felony convictions in 2004, 95 percent were resolved by guilty pleas, with the remaining 5 percent in judge or jury trials, according to the U.S. Bureau of Justice Statistics.

Bowers, Alschuler and others believe that tough sentencing laws passed by Congress and the states in the 1980s and 1990s in response to rising crime — and predictions of rising crime — are a factor contributing to the national decline in jury trials....

Virginia is one of only a handful of states where juries sentence in addition to determining guilt. Also, since 1994, juries here have been told about a defendant’s prior criminal record when deciding on a sentence. Unlike judges, juries are not informed of the sentencing guidelines and must sentence within the minimum and maximum terms that remain in the state code.

So in cases where the state law calls for a minimum sentence of five years, five years is the best a defendant can hope to get from a jury.  If the defendant pleads guilty, however, a judge complying with the guideline can suspend four years of the five-year term.  Also, because the judge, defendant and the prosecution must all agree to waive a jury trial, by threatening to demand a jury, prosecutors are in a better position to negotiate, or force guilty pleas.

In the first full fiscal year after the 1995 truth-in-sentencing reforms, jury convictions in Virginia were cut in half — from 4 percent of all felonies to 2 percent. The number has risen and fallen since, to the most recent level of 1.3 percent. And since 1995, jury sentences tend to be far stiffer than those from judges.

In a 2004 study of jury sentencing in Virginia and two other states, two professors at the Vanderbilt University School of Law confidentially surveyed judges, prosecutors and defense attorneys. They found that jury sentencing is supported overwhelmingly by Virginia prosecutors — and among some defense attorneys — because they believe it deters jury trials....

John Douglass, a former federal prosecutor and dean of the University of Richmond School of Law, said, “It’s ironic — jury sentencing in Virginia is suppressing the right to jury trial.” “The notion that your opportunity for a jury trial should come at the cost of a significantly higher sentence is troubling,” he said. “It seems odd that a jury can be used as a threat, rather than a right, or an opportunity.”...

Bowers said the trend toward fewer juries was going on before tougher modern sentencing and the use of guidelines.  Long ago, he said, when there were far fewer procedural protections for defendants, there were far more jury trials. “It wasn’t uncommon for a court to hear 20 felony jury trials in a day in the 18th-century court.”...

The full jury trial of today, however, is expensive and time-consuming.  Douglass said heavy caseloads make it difficult to try many cases.  “So prosecutors and defense counsel are looking for an alternative, and it leads to plea bargaining,” he said.

Being innocent doesn't make a jury trial more likely:

"the innocent person is in all likelihood going to have a stronger defense and the prosecution is going to have a weaker case, and a wise prosecutor will calibrate plea bargains to account for the weakness of the case,” Bowers said.

With a weak case, a prosecutor might make a more generous offer to win a conviction. “So even the innocent defendant may end up taking a plea because it’s the rational thing to do,” Bowers said.

“The innocent person may decide to stand on principle and turn down a plea, but when that happens, the plea might just get a little sweeter and the person may end up pleading anyway,” he said.

As a result, Bowers said, “you have this perversity where the very cases that we would want to test in the crucible of trial may be the very cases that more frequently end up plea-bargaining out.”

Richmond Commonwealth’s Attorney Michael N. Herring agrees that for a defendant, “juries are obviously risky and very, very unpredictable. Every good lawyer I know has lost many cases he or she [thought they] couldn’t lose.”

On the other hand, Herring said, in some egregious cases, “if you have nothing to lose as a defendant,

Herring you are facing charges that carried a [stiff] minimum term at sentencing, then you have an absolute incentive to try your case by jury.”

Figures kept by the Virginia Criminal Sentencing Commission support Herring’s observation. In the most recent year for which figures are available, juries were responsible for just 0.5 percent of all drug and property crime convictions.

However, for crimes against people — murder, assault, rape, etc. — where the minimum punishments are stiffest, the jury conviction rate was 10 times higher, at 5 percent (though 5 percent is the lowest ever measured by the commission for crimes against people).

Discrimination

The taz reports on religions discrimination in employment in Germany:

Naime B. (26) hat an der Gießener Fachhochschule studiert, als Diplom-Ingenieur-Architektin abgeschlossen, ihre Praktika absolviert, im Beruf gearbeitet und sich online bei einem Architekturbüro im hessischen Friedberg beworben. Ihr Bewerbungsfoto zeigt sie fröhlich lächelnd. Sie trägt ein schwarzweißes Kopftuch mit Wellenlinien.

Die Absage kam prompt. Man suche "einen Mitarbeiter/in für die Bauleitung, nicht für die Planung" hieß es knapp. Und dann ausführlicher: "Außerdem kommt eine Mitarbeiterin mit islamistischer Grundeinstellung mit dem Symbol des Kopftuches als Unterdrückung der Frauen nicht in Frage. Das Kopftuch ist ein Symbol politisch gewollter Unterdrückung und kein Ausdruck persönlichen Glaubens (wie fälschlicherweise oft behauptet wird). Dies können wir in unserem Büro leider nicht akzeptieren."

Naime B. fühlte sich "schockiert, beleidigt und ungerechtfertigt angegriffen" und "in ihrer Würde zutiefst verletzt". Allein aus dem Kopftuch könne eben nicht auf ihre und die Grundhaltung anderer Kopftuchträgerinnen geschlossen werden. Sie holte sich Hilfe bei dem "Clearingprojekt: Zusammenleben mit Muslimen" beim Interkulturellen Rat in Darmstadt, erstattete Strafanzeige und klagte beim Arbeitsgericht auf Schadensersatz wegen Verstoßes gegen das Allgemeine Gleichstellungsgesetz (AGG) und Artikel 3 des Grundgesetzes. Sie forderte drei Monatsgehälter, insgesamt 9.000 Euro. Selbst möchte sie nicht öffentlich Stellung beziehen. Zu viel "Medienrummel" habe es in der Vergangenheit um Frauen gegeben, die das Tragen des Kopftuches verteidigen.

Torsten Jäger vom Interkulturellen Rat wird deutlicher. Immer wieder kämen Beschwerden ähnlicher Art. "Die Absage ist ein exemplarisches Zeichen dafür, dass wir ein Klima in Deutschland haben, in dem es als avantgardistisch gilt, das zu sagen, was andere heimlich denken." Dies sei, meint Jäger, vor allem der Debatte um das Kopftuchverbot in Schulen geschuldet. Dadurch seien Vorurteile befördert worden, dass das Kopftuch "per se ein Zeichen für Unfreiheit" und jede Trägerin "auch Islamistin" sei.

Die Absage sei "nur die Spitze des Eisberges". Junge Frauen mit Kopftuch, die die zur Integration immer wieder geforderte Bildung erworben hätten und nach Abitur und Studium ins Berufsleben wollten, hätten es sehr viel schwerer als andere. Immer häufiger seien derzeit auch Fälle von Diskriminierung bei der Wohnungssuche. Selbst Tischreservierungen in Restaurants seien "bei Augenschein" schon storniert worden.

Im Sommer scheiterte ein Gütetermin zwischen dem Friedberger Architekturbüro und Naime B. Die Firma entschuldigte sich und erklärte, sie habe keinesfalls diskriminieren wollen, sondern auch schon in der Vergangenheit "Mitarbeiter mit islamischem Glauben beschäftigt" und somit "ein normales Verhältnis zu anders Gläubigen". Die Bewerberin sei lediglich abgelehnt worden, weil sie nicht genug Berufserfahrung habe. Man könne sich aber auf einen Schadensersatz von 3.500 Euro einigen. Naime B. lehnte ab.

Ein neuer Termin soll Ende Oktober vor dem Arbeitsgericht Gießen stattfinden. Torsten Jäger ist optimistisch, dass zugunsten von Naime B. entschieden werde: "Es ist wichtig, dass jemand, der etwas sagt, was er hinterher am liebsten nicht gesagt hätte, merkt, dass das auch Geld kostet."

One scary part are the reader comments, especially for a left wing paper, running 10:1 against the woman, with lots of claims about the need to stand up for freedom of association and the right of firms to exclude people for wearing head scarfs.  Some people, in my estimation quite a few in Germany currently, though it is hard to judge not having lived there for quite some time, don't seem to understand that this level of exclusion and harassment creates exactly the ghettoization of immigrants these people claim they oppose. 

It would be nice to know more, but my sense is that the fraction of the population that is engaged in this active harassment of Muslims is creating serious problems that would otherwise be avoidable. 

I'm confused and befuddled by the Polanski case

I don't get it.  I can see that this would be fodder for high brow tabloid coverage, but why is there any underlying controversy?  One could argue that in general some much sexual activity is now handled too aggressively by the US criminal justice system, but this is an old case, not consensual sex and involves flight from the justice system.  In some ways this reminds me of the OJ Simpson case: yes, he did it, but the constituency supporting the perpetrator doesn't like or trust the US justice system.  But people supporting Polanski don't seem to articulate that view, at least not that I've seen that argument made. 

My own theory on why Polanski got nabbed now by the Swiss is that there was a side deal in the context of a general high level laying out of who wants what from whom between the US and Swiss justice systems during negotiations over the UBS tax evasion abetting matter. 

Also, how is rape not an extraditable offense between the US and France, or something that could not be tried in France?  If Polanski had killed instead of raped Samantha Geimer would he be in the same legal position? 

The Daily Mail summarizes the process, accurately as far as I can tell, thus:

The director was initially charged with rape by use of drugs, perversion, sodomy, lewd and lascivious act upon a child under 14, and furnishing a controlled substance to a minor.

These charges were dismissed under the terms of a plea bargain [okay, not actually a plea bargain, since no sentence was agreed, instead this was a plea agreement on the charge], and he admitted a lesser charge of engaging in unlawful sexual intercourse with a minor.

An LA court ordered Polanski to report to a state prison for a ninety-day psychiatric evaluation. He eventually reported to Chino State Prison for the evaluation period, and was released after 42 days.

There was a widely held expectation that Polanski would get probation at the subsequent sentencing hearing, but after an alleged conversation with LA Deputy District Attorney David Wells, the judge 'suggested to Polanski's attorneys that he would send the director to prison and order him deported'.

With the threat of imprisonment hanging over him, Polanski fled the United States. He first went to London on February 1, 1978, where he maintained home.

A day later he traveled on to his native France, avoiding the risk of extradition to the US by Britain. Consistent with its extradition treaty with the United States, France can refuse to extradite its own citizens.

So the key issue is what does 'France can refuse to extradite its own citizen' mean in this context?  What is the process and what are the standards by which the French judicial system decides these matters?  And given this process and these standards, why did Polanski not get extradited in the past 30 years?  Conversely, when do US authorities give up on extradition requests and try to have foreign justice systems try crimes in the US?  Does this ever happen?  I only know of German authorities trying US citizens under US criminal law but German criminal procedure (in some sort of mixed procedure, with US prosecutors) for death penalty eligible crimes committed by US military personnel on US bases in Germany, who then can avoid extradition since...well not quite clear, since I think the US will promise not to seek the death penalty if extradition occurs. 

Finally, what is the French law for the facts of Polanski's plea on sexual intercourse with a 13 year old? Ah, the age of consent in France is 15, with sexual intercourse with persons under 15 punishable with up to 5 years imprisonment.  Additionally, there was a movement in France in the late 1970s to abolish the age of consent.  Indeed, in 1977, the year of Polanski's flight to France, quite a few famous French intellectuals signed a petition to this effect.   All the 'usual suspects' (Michel Foucault, Jacques Derrida, Louis Althusser, Jean-Paul Sartre, Simone de Beauvoir, André Glucksmann, Roland Barthes, Guy Hocquenghem) and a few more like Kouchner or Lang.  Part of the old style gay liberation movement and the aftermath of the 1960s culture wars.   Luckily, gay liberation has moved on to marriage equality and raising one's own kids and not molesting other people's kids, which is progress.  Not that this trajectory is unique to gays...see Polanski's life.  So I can see that the French state may not have felt like extraditing Polanski until this issue played out.  And then the French justice system got locked into its position. But that still doesn't explain how Polanski could hang out is Switzerland. 

On the other hand, Polanski's support in France and Poland seems quite narrowly based and is fading.  So this may mostly be about history now. 

Update #1: What Scorsese and All the Rest Know About Roman Polanski That Maybe You Don't.

Update #2: The Guardian reports France is considering forcing some sex offenders to undergo chemical castration.  Not 1977 anymore in France either.  

Update #3: Jody comments:

It seems like Polanski got away with it back in the 1970s (a) because France wasn't inclined to do anything that the US wanted it to do, especially around the extradition question; (b) because it was the 1970s, and Angelica Huston was probably not the only person who wanted to believe "hey, she looked like she could be old enough" was a valid defense; and (c) because blaming the rape victim is still pretty typical, especially when the assailant is a Famous Movie Director. I've noticed that no real media outlets in the States are doing anything but condemning the petition and the outrage. They're all saying, "this guy raped a 13-year old. It's about time." I don't think this was a federal-level agreement between the US and Switzerland. It's my impression that the LA D.A. has been trying to get Polanski for about a year now, ever since he had the audacity to ask for the case to be dismissed without actually coming back himself.

I understand that the reporting is that the extradition is due to efforts by the LA D.A.  I do suspect additional involvement by Justice Department and potentially Treasury officials as well, in the context of negotiating the UBS matter.  Just speculation, but federal officials hold many more cards than the LA D.A. when dealing with the Swiss. 

Card Check Update

snark via Kaus:

Workers at Boeing factory vote to un-unionize. By secret ballot. ... Because when it comes to decertifying unions, union lobbyists insist on the sanctity of the secret ballot. ...

So why do unions get decertified in the US?  Not a close vote here either, 199 out of 267 for decertification. 

Incentives and Behavior of Mortgage Servicers

The NYT has an article on incentives and the behavior of mortgage servicers which reminds me that I ought to know more about this topic.  One question is where the existing contracting arrangements come from and how they can be modified or renegotiated. 

Even when borrowers stop paying, mortgage companies that service the loans collect fees out of the proceeds when homes are ultimately sold in foreclosure. So the longer borrowers remain delinquent, the greater the opportunities for these mortgage companies to extract revenue — fees for insurance, appraisals, title searches and legal services.

“It frustrates me when I see the government looking to the servicer for the solution, because it will never ever happen,” said Margery Golant, a Florida lawyer who defends homeowners against foreclosure and who worked in the law department of a major mortgage company, Ocwen Financial. “I don’t think they’re motivated to do modifications at all. They keep hitting the loan all the way through for junk fees. It’s a license to do whatever they want.”  ....

Legal experts say the opportunities for additional revenue in delinquency are considerable, confronting mortgage companies with a conflict between their own financial interest in collecting fees and their responsibility to recoup money for investors who own most mortgages.

“The rules by which servicers are reimbursed for expenses may provide a perverse incentive to foreclose rather than modify,” concluded a recent paper published by the Federal Reserve Bank of Boston. ....

When borrowers fall behind, mortgage companies typically collect late fees reaching 6 percent of the monthly payments.

“For many subprime servicers, late fees alone constitute a significant fraction of their total income and profit,” said Diane E. Thompson, a lawyer for the National Consumer Law Center, in testimony to the Senate Banking Committee this month. “Servicers thus have an incentive to push homeowners into late payments and keep them there: if the loan pays late, the servicer is more likely to profit.”  ...

Mortgage companies not only gain this extra business through their subsidiaries, but also collect reimbursement for the payments when the houses are sold.

The investors who own bad mortgages accept whatever is left. Investors typically do not notice how much they give up to the servicers, because fees are embedded in complex sales.

“It’s under the radar,” Ms. Golant said.

Ultimately, the benefits of delinquency erode incentives for mortgage companies to dispose of troubled loans quickly, say experts, allowing distressed houses to decay and fall in value — a fact of little interest to the servicer.

“At the end of the day, it doesn’t matter what the house sells for, because they don’t take that loss,” said Ms. Golant. “Meanwhile, they are collecting all these fees.”

Ecstasy still is a Schedule I Drug

The Guardian has a story that reminds me that ecstasy is a class A drug in the UK and a Schedule I drug in the US: Class A drug use on the rise among young people. Over half a million have taken cocaine and ecstasy in the last year but cannabis use has declined.

Which, as I understand the situation, continues to be a crazy classification of MDMA. 

California IOUs

The California IOU situation looks like it might get interesting.  Not clear to me how this institutional feature fits into the overall politics, economics and law of fiscal federalism in the US.  Just figuring out how the game is set up and played would be nice. 

Is a “tax advantage lease” at fault for the DC Metro Accident?

Concurring Opinions wrote a few days ago:

As you have doubtless seen elsewhere, two Metro trains collided when one train ran into the back of a stopped train, killing at least nine and injuring over 75 others.  The first car of the moving train was, the Washington City Paper reports, the oldest type of Metro car in the system, a 1000-series Rohr car.

The City Paper reports that the National Transportation Safety Board repeatedly recommended that Metro (more formally known as the Washington Metropolitan Area Transit Authority, or WMATA) retrofit or replace these older cars, but Metro refused.  Why?  Because “WMATA is constrained by tax advantage leases, which require that WMATA keep the 1000 Series cars in service at least until the end of 2014.”

What are these “tax advantage leases”? They appear to be standard sale-leaseback transactions, in which WMATA sold equipment, including train cars, to another party and now leases it back.  The other party gets various tax advantages (depreciation, credits, and so forth) associated with owning the equipment, and WMATA, which as a tax-exempt organization cannot use these advantages, gets cash.  But apparently the leases did not include language that permits WMATA to break the leases if newer, safer equipment comes along.

Financial Reform

Clusterstock writes:

Buried in Obama's financial reform plan is a requirement to make stockbrokers act in the best interests of their clients ("fiduciary responsibility"). 

This would replace the current conduct standard, which merely requires brokers not to stuff their clients accounts full of products they would be crazy to buy ("suitability").

Most money managers and independent financial advisors have long been held to the fiduciary standard, which makes vastly more sense. ...

The WSJ elaborates:

But requiring brokers to operate under a fiduciary standard could force them to offer products that are less costly and more tax-efficient. They will have to disclose any potential conflicts of interest, such as any fees they may get for favoring one product over another. That could mean clients will be offered fewer proprietary products if the broker can find a lower-cost option elsewhere.

For example, a broker couldn't put you in a mutual fund with higher fees -- or one he gets a bigger commission for selling -- if he could get a comparable fund with lower fees elsewhere, says Tamar Frankel, an expert on fiduciary law at Boston University School of Law.

The proposal addresses a long-simmering debate over how brokers and investment advisers, who have traditionally offered more financial-planning advice, are regulated.

For years, investment advisers -- regulated by the Securities and Exchange Commission as part of the Investment Advisers Act of 1940 -- have been held to a fiduciary standard, meaning that in serving the clients, they have to put their clients' interests first. Brokers were excluded from that definition of investment advisers as long as they didn't get paid special compensation for that advice, and gave it as "solely incidental" to their brokerage services.

But over the years, that distinction became more blurred as brokers held themselves out as financial planners, even as they continued to operate under the more lenient standards. Making matters more confusing is the fact that some brokers became dually registered, operating under a suitability standard when they are selling products, but under a fiduciary standard when doling out investment advice.

Which raises the question of why stock brokers now operate under the 'suitability' standard. 

Church-State Relations

CT New Junkie reports

The Roman Catholic Diocese of Bridgeport filed a federal lawsuit against two state ethics officials Friday after the officials told the church it needs to register as a lobbyist to hold rallies at the state Capitol and use its Web site to oppose legislation.

The lawsuit claims that the diocese was compelled to “oppose unconstitutional legislation that struck at its right of religious self-governance,” when it undertook the action the state officials deemed to be lobbying.

The two defendants, Thomas Jones and Carol Carson, from the Office of State Ethics were unable to be reached for comment Friday evening.

The legislation, which drew the church’s ire because it “would have deprived Roman Catholic Bishops and pastors of voting membership on the governing bodies of corporations that control parish property in Connecticut,” was withdrawn before even receiving a public hearing, but heightened tension between the church and the state.

Six weeks after the diocese bused thousands in for a rally on the steps of the state Capitol, it was contacted by Jones who informed it that he was conducting an evaluation to ascertain whether the diocese had violated Connecticut law by failing to register as a lobbyist. The lawsuit says that Jones also informed the diocese that statements on its Web site regarding a bill related to same-sex marriage may also be construed as lobbying.

The threat of civil penalties against the diocese for participating in the rally and conveying its opposition to legislation on its Web site is “chilling” to the diocese’s constitutional rights, the lawsuit alleges.

However, Rep. Chris Caruso of Bridgeport who is a Catholic and is the former chairman of the legislature’s Government Administration and Elections Committee, said the church has a right to rally and assemble and the state has the right to regulate it. He said the church can’t have it both ways.

“If you want to come up and lobby, then you have to be held accountable,” Caruso said. “Give unto Cesar, what is Cesar’s.”

According to the lawsuit Jones sought to find out how much it cost to bus the thousands of Catholics to the Capitol March 11 for a rally against the bill which would change how church finances are governed.

The lawsuit claims that Jones informed the diocese that spending over $2,000 would require it to register as a lobbyist. While Jones conveyed this to the diocese, the lawsuit says he has not referred the matter to the Chief State’s Attorney’s Office for criminal violations of the state’s lobbying statutes, but the diocese “nonetheless faces that possibility.”

The lawsuit is just the latest in friction between the church and the state over a number of issues from same-sex marriage to emergency contraception to the church corporation bill.

What are the legal issues here?  Not clear to me how the Catholic Church is exempt from general laws here, since they don't seem to impose a undue burden on any fundamental rights the Church might have.  It would be nice to know more.  Has this come up before?  How do other states handle it?  If the Catholic Church or none of its subentities has never registered as a lobbyist, how have they done this?

Our kids go to school with the kid of a registered lobbyist (though it is for Common Cause).     

Update #1: at least one Catholic Church has registered as a client of a lobbyist in the city of San Diego, California.  Some states, for instance Idaho, have rules stating that

The following persons are exempt from registering and reporting: ....A person who represents a bona fide church (of which he is a member) solely for the purpose of protecting the constitutional right to the free exercise of religion.

Not clear that CT state law has this exemption -- I assume not, since the suit is in Federal Court and state courts interpret state law.  So this seems to call for an undue burden test and I cannot see how the Diocese of Bridgeport can show that registration is an undue burden on the free exercise of religion for it. 

Representing God at the statehouse: religion and politics in the American states by Edward L. Cleary, Allen D. Hertzke (2005) touches on some of these issues.  It seems state cultures vary a lot, but that Catholic Church dioceses do hire registered lobbyists in many states.  The issue here seems to be if state law can fore a diocese to register as lobbyist itself if its employees do the lobbying directly. 

Cheney Today

Why does Cheney get traction with stuff like this?

On his second day in office, President Obama announced that he was closing the detention facility at Guantanamo. This step came with little deliberation and no plan. Now the President says some of these terrorists should be brought to American soil for trial in our court system. Others, he says, will be shipped to third countries. But so far, the United States has had little luck getting other countries to take hardened terrorists. So what happens then? Attorney General Holder and others have admitted that the United States will be compelled to accept a number of the terrorists here, in the homeland, and it has even been suggested US taxpayer dollars will be used to support them. On this one, I find myself in complete agreement with many in the President’s own party. Unsure how to explain to their constituents why terrorists might soon be relocating into their states, these Democrats chose instead to strip funding for such a move out of the most recent war supplemental.

Which leaves me wondering what sort of non-US taxpayer funds the the detention facility at Guantanamo is using now. (via MSNBC)

Overcharging in Action

Matt Steinglass reads the indictment of the alleged NYC terrorists:

Did anybody else notice this? In the indictment of the guys arrested yesterday for allegedly trying to bomb synagogues in NYC, the first count is that they

did combine, conspire, confederate and agree together and with each other to use a weapon of mass destruction, to wit, a surface-to-air guided missile system and an improvised explosive device (”IED”) containing over 30 pounds of Composition 4 (’C-4″) military grade plastic explosive material against persons and property within the United States.

Since when is a Stinger a “weapon of mass destruction”? It’s bad enough that the term, which strictly applies only to nuclear weapons since they “destroy mass”, has been extended in the vernacular to include chemical and biological weapons; now they’re using it to apply to routine plastic explosives like C4? Is this some bizarre way of trying to prove that Saddam had WMD after all? Doesn’t this imply the US has used WMD millions of times in the past 8 years? To paraphrase Amy Winehouse, what kind of, uh, ignorant nonsense is this?

via Ben Smith, it does appear that this is how the US Code defines a weapon of mass destruction.  Specifically, TITLE 18, PART I, CHAPTER 113B, § 2332a reads

Definitions.— For purposes of this section— …
(2) the term “weapon of mass destruction” means—
(A) any destructive device as defined in section 921 of this title;

Sec. 921 then states:

The term “destructive device” means—
(A) any explosive, incendiary, or poison gas—
(i) bomb,
(ii) grenade,
(iii) rocket having a propellant charge of more than four ounces,
(iv) missile having an explosive or incendiary charge of more than one-quarter ounce,
(v) mine, or
(vi) device similar to any of the devices described in the preceding clauses;

Diane Wood

Diane Wood rumors are picking up.  I don't have a considered view, but a U Chicago antitrust lawyer on the Supreme Courts sounds good. 

Legal Questions

1. Why did anti-abortion statutes get passed in 19th century America if abortion was already illegal under common law as administered by state courts?  Did state courts start failing to convict for abortion or aiding abortion under common law?  Did other common law crimes pass away or get replaced by criminal statutes?   I ought to know this, but I don't...I even have Leslie J. Reagan, When abortion was a crime: women, medicine, and law in the United States, 1867-1973 somewhere in my basement.  Ah, now I see...just check the link. 

2.  Why don't prisoners held in Guatanamo have a right to a speedy trial or now a right to be released given the violation of this constitutional right?  Quick googling doesn't reveal the answer to this.  Hamdan did raise his right to a speedy trial with the Guantanamo tribunal but was denied speedy trial protections by the tribunal's legal adviser on the grounds that he was not entitled to full uniform code of military justice protections, which define the meaning of 'speedy trial' for persons it covers.  But that doesn't solve the constitutional issue. 

Update #1: Jody writes

Prisoners at Guantanamo are/were defined as enemy combatants -- as non-citizens, they weren't protected by the constitution; as non-POWs, they weren't protected by military law.

Another way of putting this: Cheney et al. came up with a formula whereby they could make the "law" do whatever they wanted it to do.

A friend emails from Germany:

In response to the second question: Isn't that what Guantanamo is all about? That being in Cuba and not on American territory, the Constitution doesn't apply. A legal loophole, so to say. And that the prisoners are not being called "soldiers", the Geneva Convention doesn't apply either! It all has to do with the legal gymnastics of the Bush administration. Hasn't this already gone to court in the US, or is my memory failing? Anyway, it makes people wonder here.

However, none of which answers the question: why speedy trial provisions of the constitution don't apply for trials conducted by US military tribunals or, if these provisions do apply, what the actual 'speedy trial' standard is and what the remedies are if the standard if violated.  The Bush Administration legal strategy was to put the internees in Guantanamo to prevent them from getting access to Article 2 US courts -- but that strategy has now failed (see Boumediene v. Bush 2008 striking down the relevant sections of the Military Commission Act of 2006 which removed access to US courts), internees can raise 6th Amendment claims if they are tried, and we have a new Administration.  So where do we stand in regards to speedy trial guarantees under the Constitution? 

I could see internees being held indefinitely (i.e. until the conflict is declared over by the Executive) and not being able to be freed by US Courts without an Executive order, but I cannot see any sentences being upheld.   Or rather, it would be somewhat surprising if sentences would be upheld.  Which should, I assume, have an effect on what policies this Administration pursues. 

BTW, 6th Amendment protections apply to all persons under US jurisdiction, not just US citizens.  The problem for aliens is that they can be administratively removed from US jurisdiction. 

Update #2: The WSJ reports:

The Obama administration is weighing plans to detain some terror suspects on U.S. soil -- indefinitely and without trial -- as part of a plan to retool military commission trials that were conducted for prisoners held in Guantanamo Bay, Cuba.

Which is pretty much what one would expect. 

What is the deal with these Sovereignty Resolutions?

Recent sovereignty resolutions in mostly southern states including Texa, South Dakota and Oklahoma and Georgia (full text) have gotten a lot of attention this week (Steve Benen,  Hertzberg, Kilgore, Hilzoy).   What's the deal here?  

As usual, I like Hilzoy's take:

it turns out that the Georgia resolution is a lightly modified version of Thomas Jefferson's Resolutions Related To The Alien And Sedition Acts. (Most of the resolution follows this version, but towards the end, it substitutes the eighth resolution, here.) It omits all references to the Alien and Sedition Acts themselves, as well as the part where Jefferson seems to say that states, rather than the federal government, have authority over "alien friends", and that the federal government has no right to imprison people who do not obey deportation orders. ...

This matters for the following reason. Jefferson wrote his Resolutions in 1798. At that time, it was still an open question how the Constitution was to be enforced, and, in particular, how the federal government was to be kept within its limits. In 1803, the Supreme Court decided Marbury v. Madison, which answered that question by holding that federal courts had the power to determine whether or not federal laws were constitutional. It did so on grounds similar to those that moved Jefferson:

"To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained? The distinction, between a government with limited and unlimited powers, is abolished, if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed, are of equal obligation. It is a proposition too plain to be contested, that the constitution controls any legislative act repugnant to it; or, that the legislature may alter the constitution by an ordinary act.

Between these alternatives there is no middle ground. The constitution is either a superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and like other acts, is alterable when the legislature shall please to alter it.

If the former part of the alternative be true, then a legislative act contrary to the constitution is not law: if the latter part be true, then written constitutions are absurd attempts, on the part of the people, to limit a power, in its own nature illimitable."

Jefferson and Justice Marshall were confronting a similar problem: the need to keep the federal government within constitutional limits. They proposed different solutions: in Jefferson's case, state nullification, in Marshall's, judicial review. When Jefferson wrote, his views were not "militia-minded moonshine and wacko white lightning". They were an attempt to answer a serious problem that had not yet been answered. His solution was, in my view, not the best one, but it was a serious answer to a serious question. 

It matters when you write something. The Articles of Confederation were not ideal, but when they were written, they were a real solution to a real problem. Proposing them now would be idiotic. Likewise, what makes the Georgia resolution a Kompletely Krazy Kocktail is that it parrots Jefferson's words as though we had not arrived at a solution to that problem nearly two centuries ago. But we have, and acting as though that solution does not exist, or as though it does not make state nullification both superfluous and a recipe for lawlessness, is absurd.

On the other hand, there is considerable history of states taking things into their own hands since 1803 as well, not for the most part in a positive way after 1860 (where I'm counting state resistance to the Fugitive Slave Act and related measures as a form of nullification, not sure it is technically)?  What are positive examples of nullification after then?  Redemption etc. aren't currently viewed that positively, are they?  Or is Redemption still seen a positive thing by people in the mainstream?   Did state sovereignty claims to judge the proper scope of federal powers play any positive roll for progressives?  Yes, federal diversity jurisdiction did play a role in the rise of the modern multi-state corporation and its labor relations. but I don't thing state sovereignty claims to nullify federal power here were every used with much effect.

Note that in Georgia the State Senate passed the Sovereignty Resolution 43-1, so it includes lots of Democrats and Blacks. 

Something calling itself the Tenth Amendment Center offers resources for sovereignty resolutions.  They point to supporting literature, for instance 'Judge' (New Jersey Superior Court Judge 1987-95 and Fox News personality) Andrew P. Napolitano, Dred Scott's Revenge: A Legal History of Race and Freedom in America, but I cannot tell from skimming what their main points are.  There are lots of emphatic declamations though. 

On the other hand, it is clear the federal court decisions on the scope of federal powers can be swayed, in part, by  state political pressures, just look at for instance Giles v. Harris (1903).  But does Texas really need to say that it will leave the Union if the Congress passes an assault weapons ban?  

Biblical Inerrancy as Legal Positivism?

Biblical inerrancy sure looks like a version of legal positivism applied to Christianity.  A bit of an ironic situation given the strident critiques and denunciations of legal positivism in some religious circles.

Update #1:  Riever T., who I don't know, comments:

Given the argument, wouldn't it also be appropriate to posit, for example, that orthodox judaism and much of islam also constitute applications of legal positivism? If not, then why not? Are the various branches of xianity that embrace inerrancy unique in some significant way?

One issue is that I didn't lay out an argument above but just stated my current impression of one possible interpretation of biblical inerrancy given my recent reading.  And that reading has been on Christian self-understandings, not Islamic or Jewish self-understandings.  I suspect the analogy between biblical inerrancy as understood for Christianity works better than for the analagous claims in Islam or in Judaism, but I'd need to explain that further.  And it might work for Islam and Judaism as well, but it depends what 'works' means, which I would need to spell out.  

Finally, the irony in 'biblical inerrancy as legal positivism' comes in part from the energy the Catholic Church spends denouncing legal positivism and positing itself as the necessary cure for this ill, which the other two faiths probably have broader targets for their self-justification in contemporary society.

Mostly just throwing a thought out here. 

Millennium Partners gets charged with Insider Trading Again

Zero Hedge points out that

In a watershed case, the SEC has launched its first CDS insider trading case implicating Millennium Partners portfolio manager Renato Negrin and Deutsche Bank CDS trader Jon Paul Rorech. According to the SEC, Negrin and Rorech engaged in illegal activity in the CDS of VNU N.V., a Dutch holding company that owns Nielsen Media, and made a $1.2 million profit. ...

In addition to cutting the careers of Negrin and Rorech short, this could be a huge blow to Millennium Partners itself, which has had some serious brushes with the SEC previously, most notably in the mutual fund market timing scandal which ended up costing Millennium a $121.4 million settlement in disgorgement and Izzy a $30 million penalty, as well as prohibiting Izzy from serving or acting as an employee, officer, director, member of an advisory board, investment adviser or depositor of, or principal underwriter for, a registered investment company or affiliated person of such investment adviser, depositor, or principal underwriter for a period of three years;

In addition the SEC stipulated in that case that Millennium must "cease and desist from committing or causing any violations and any future violations of Section 17(a) of the Securities Act and Section 10(b) of the Exchange Act and Rule 10b-5 thereunder" and "comply with certain undertakings, including the retention of an Independent Compliance Consultant to review its compliance program and the establishment of a Compliance, Legal, and Ethics Oversight Committee to ensure that Millennium's illegal conduct does not recur." Unforunately, it would seem that this Commttee might have failed just a little bit in its oversight of illegal conduct at the $10 billion hedge fund if the SEC's allegations are proven to be true.

Full SEC complaint at Zero Hedge. 

The first Administration Scandal with (political, not legal) Legs?

Bronte Capital reviews the problems Vice President Joe Biden's family business may have created.  Seems worth following.  Feeder funds run by celebrity marketers with shamefully insufficient due diligence are on my, and many other people's, current shit list, so this may have legs.  It would be consistent with my understanding of how the world works and who Joe Biden is (not that this is evidence).    The FT summary is pretty good as well. 

Felix Salmon points to a need for regulatory reform:

If you’re confused by the scandal surrounding the Ponta Negra hedge fund and its Biden landlords, don’t blame yourself: it’s really confusing stuff. If you have the patience for it, just read John Hempton[Bronte Capital]’s archives: start here, and then run through this, this, this, this, and this. (Don’t worry, there’s more to come, but we’re up to something over 6,000 words already.) Alternatively, Alphaville is running its own series, of which the first two parts are now up: 1,700 words on 650 Fifth Avenue, and 1,250 words on the Biden connection. The Alphaville posts are quite hard to follow, partly because the FT lawyers have stripped them of links, and partly because this whole thing is just very opaque and complex.

The one thing which is abundantly clear is that Jeffry Schneider (always mistrust people who can’t spell their own name) is a very shady character indeed, who was fired from various financial-sector jobs before ending up selling fraudulent hedge funds and seemingly working out of the Bidens’ hedge-fund hotel. Schneider was a “marketer” for hedge funds, including Ponta Negra — which means he sold them to rich individuals, and took a commission for so doing. How did he find the rich individuals? Lots of ways, but one was that he paid upwards of $10,000 a month for access to lists of people who were rich enough to qualify as hedge-fund investors.

This is the bucket-shop end of the hedge-fund world: small and sleazy and shadowy. But here’s the thing: if you’re a rich individual who’s phoned up by Jeffry Schneider and told about some fabulous new hedge fund you should put lots of money into, he has a pretty good explanation for why it’s so difficult  to get any information on him and his company: under the laws banning the advertising of hedge funds, he’s not allowed to give out much in the way of information.

As part of the forthcoming regulation of hedge funds I think there should be a lot of efforts to make them more transparent, rather than allowing them to use SEC regulations to justify their opacity. At the moment, simply giving out information about certain investments is considered to be advertising: I used to run into this problem the whole time when I was in New York, covering 144a bond issues which could only be sold to big institutional investors, and being told that therefore I couldn’t get any information on them. We need to move instead to a world where information is allowed to be free, even if the public at large still isn’t allowed to invest in the funds or securities in question.

Once we get there, it should become much easier for bloggers to uncover Ponzis — which is certainly a good thing. Hempton has a big advantage in that he’s part of that world himself, and has access to information which isn’t freely available online. Why can’t we all have that access?

The Culture of Shaping Precedent

Daniel Larison writes:

[I]ronically, some of the defenders of the torture regime are making the best argument for the prosecution of past administration officials by their own invocations of past government illegalities. They are unwittingly reminding us that crimes unpunished today can easily become tomorrow’s conventionally accepted “correct” decisions. Every usurpation or instance of lawbreaking that is not challenged and reversed creates a precedent for the next round of usurpation and lawbreaking, and the fact that there is a non-trivial number of people in America who think that the illegal acts of Lincoln, FDR, Truman or others should have some mitigating effect on how we treat illegal acts under a more recent administration is one of the best reasons why crimes committed during the last administration must be investigated and lawbreakers must be prosecuted. Had many past administrations been scrutinized and their crimes investigated and punished, it is less likely that we would have to cope with an executive branch that acts as if it is above the law and which seems to be able to to break the law with impunity.

I have also wondered if one can get the same dynamic from the other side: pointing to past atrocities as moral failures and unsuccessfully trying to prosecute them as crimes can also create culturally important precedents that normalize these types of actions (which is a large part of my reaction to this historical literature: doing these things is part, potentially a necessary part, of the spectrum of standard behavior and not so damaging that we cannot arrive at a world like ours).  Which in part just points to the problems of a highly precedent based culture like the US without other cultural methods for dealing with standards of behavior. 

'John Bingham and the Background to the Fourteenth Amendment'

Legal history Blog posts a pointer to a new Finkelman article:

Paul Finkelman, Albany Law School, has posted an article, John Bingham and the Background to the Fourteenth Amendment. It appeared in the Akron Law Review(2003). Here's how it begins:

Legal scholars have long debated the "original intent" of the Fourteenth Amendment, especially Section one, which has been the driving engine of the national expansion of civil rights and civil liberties for the past half century or more. 1 Lawyers comb the records of the Thirty-ninth Congress, certain they will find some Rosetta stone that will explain such terms as "privileges or immunities of citizens of the United States," "due process of law" or "equal protection of the laws."

While exploring the records of Congress can be useful, the debates in Congress do not tell the whole story of the origin and meaning of the Fourteenth Amendment. These debates may not even tell the most important story. Two other stories may be a better guide to what the members of Congress, and especially John Bingham, the primary author of Section one of the Fourteenth Amendment, had in mind when they wrote the Amendment. An understanding of the Fourteenth Amendment begins not in Congress, but in the history leading up to the Civil War. The first crucial story in understanding the Fourteenth Amendment is the striking changes in the law of race relations that took place in the North - especially in Bingham's home state of Ohio - in the dozen or so years before the Civil War began. The second story is about the South, and the legal repression and brutal racial violence that took place there immediately after the Civil War ended.

These two stories compliment each other. The first gives insight into the legal and political history that shaped Bingham's thoughts about race and his aspirations for a racially just society. The second helps understand what Bingham was struggling against in drafting Section one of the Fourteenth Amendment, and thus illuminates what he hoped the Amendment would accomplish.

Marriage Equality in Iowa or soon there were three (soon to be four?)

via Volokh, the Iowa Supreme Court holds unanimously:

In this case, we must decide if our state statute limiting civil marriage to a union between a man and a woman violates the Iowa Constitution, as the district court ruled. On our review, we hold the Iowa marriage statute violates the equal protection clause of the Iowa Constitution. Therefore, we affirm the decision of the district court.  ....

We are firmly convinced the exclusion of gay and lesbian people from the institution of civil marriage does not substantially further any important governmental objective. The legislature has excluded a historically disfavored class of persons from a supremely important civil institution without a constitutionally sufficient justification. There is no material fact, genuinely in dispute, that can affect this determination.

Basically, this is where modern American jurisprudence is now, after Lawrence and Romer and a bit of time these are no longer even close to hard cases.  In constitutional law in this battle was fought and won in the 1990s.  The courts just need to get around to telling the public.

[T]he use of traditional marriage as both the governmental objective and the classification of the statute transforms the equal protection analysis into the question of whether restricting marriage to opposite-sex couples accomplishes the governmental objective of maintaining opposite-sex marriage.

This approach is, of course, an empty analysis. It permits a classification to be maintained “ ‘for its own sake.’ ” Kerrigan, 957 A.2d at 478 (quoting Romer, 517 U.S. at 635, 116 S. Ct. at 1629, 134 L. Ed. 2d at 868). Moreover, it can allow discrimination to become acceptable as
tradition and helps to explain how discrimination can exist for such a long time. If a simple showing that discrimination is traditional satisfies equal protection, previous successful equal protection challenges of invidious racial and gender classifications would have failed. Consequently, equal protection demands that “ ‘the classification ([that is], the exclusion of gay [persons] from civil marriage) must advance a state interest that is separate from the classification itself.’ ” Id. (quoting Hernandez v. Robles, 855 N.E.2d 1, 33 (N.Y. 2006) (Kaye, C.J., dissenting)); see also Romer, 517 U.S. at 635, 116 S. Ct. at 1629, 134 L. Ed. 2d at 868 (rejecting “classification of persons undertaken for its own sake”).

“[W]hen tradition is offered to justify preserving a statutory scheme that has been challenged on equal protection grounds, we must determine whether the reasons underlying that tradition are sufficient to satisfy constitutional requirements.” Kerrigan, 957 A.2d at 478–79 (emphasis
added). Thus, we must analyze the legislature’s objective in maintaining the traditional classification being challenged.

Privilege Review

I've heard of this situation before, but it does seem to be getting less attention than one would expect, especially in the US, even if these are UK lawyers before a US court.  I can see that there could be a rule following case to be made against the defense lawyers here, but at the same time classifying things from the President seems odd (but there ought to be procedures for handling classified materials in route to the President -- which it appears the defense lawyers tried, but they were turned down by the privilege review team).  The Guardian reports

Lawyers for Binyam Mohamed face the incredible prospect of a six-month jail sentence in America after writing a letter to President Obama detailing their client's allegations of torture by US agents.

The privilege review team – officials from the US department of defence who monitor and censor communication between Guantánamo prisoners and their lawyers – have previously been accused of using their powers to suppress evidence of the abuse and mistreatment of detainees.

Clive Stafford Smith, director of legal charity Reprieve, and his colleague Ahmed Ghappour have been summoned to appear before a Washington court on May 11 after a complaint was made by the privilege review team.

Stafford Smith had written to the president after judges in the UK ruled against the release of US evidence detailing Mohamed's alleged torture at Guantánamo. The letter [PDF] asked the president to reconsider the US position and urged him to release the evidence into the public domain. He attached a memo summarising the case because his US security clearance gives him access to the classified material. In order to comply with classification guidelines, the memo did not identify individual officers by name or specify locations of the abuse.

He and Gappour submitted the memo to the privilege team for clearance but the memo was redacted to just the title, leaving the president unable to read it. Stafford Smith included the redacted copy of the memo in his letter to illustrate the extent to which it had been censored. He described it as a "bizarre reality". "You, as commander in chief, are being denied access to material that would help prove that crimes have been committed by US personnel. This decision is being made by the very people who you command."

The privilege team argue that by releasing the redacted memo Reprieve has breached the rules that govern Guantánamo lawyers and have made a complaint to the court of "unprofessional conduct".

A hearing is set for May 11. Clive Stafford Smith appears to be a US and UK citizen. 

Insurance Guarantee Associations

I've never heard of insurance guarantee associations, but then again there haven't been that many recent insurance company failures in the US.  The system appears to be about what one would expect given other programs like the FDIC or unemployment benefits, except that an AIG failure might (?) overwhelm the tax base here, insurance premia written in the relevant state. A high tax on this tax base would be inefficient in any case. 

“AIG subsidiaries are likely in worse shape than appeared at first blush,” Lehrer explained. So far, AIG has sold only one of its 72 subsidiaries that sell insurance in the U.S.

Past collapses have not been a big deal because they have been small; but an AIG collapse would not be small. “In the past, when insurers have collapsed, it has meant that people in a few states have seen surcharges of a few dollars on their insurance policies—annoying, but not a big deal,” said Lehrer. “A bailout of AIG’s insurance businesses could mean enormous new taxes for just about everyone. Some people might see a very unwelcome surprise in their insurance bill.”

Lehrer compared the situation to another famous corporate collapse. “On the surface, this looks a lot like Enron,” said Lehrer. “A lot of the underlying business may have had serious problems.”

The consequences for the collapse of any one of AIG’s sizeable insurance subsidiaries would result in significant taxes—called “assessments” —on homeowners, automobile, life insurance, and other policies. These assessments would be decided at the state level.

In almost all cases, legislatures do not need to approve assessments before they are levied to bail out insurance companies. All insurers participate in “guarantee associations,” and in most states, these associations are nominally private, but state law mandates that all insurers writing ordinary insurance policies participate in them. With the exception of New York state, the associations have few hard assets and instead depend on nearly unlimited taxing authority.

“Congress needs to be ready to deal with this problem,” Lehrer concluded.

The $300,000 dollar cap on life insurance benefits covered is a small fraction of my total life insurance, even a small fraction of my life insurance with American General Life, an AIG subsidiary. I did diversify away from AIG even though they were the cheapest carrier with when I upped my life insurance by 50% when kid #3 showed up, since AIG did look terribly opaque with a big potential downside even in 2004. 

Update #1: interesting, it seems that for most states the assessment looks like this, with different assessment rates, all pretty low:

Two percent (2%) of the average premiums in state for policies covered by the account during the three calendar years preceeding the impairment or insolvency.

Which means that the assessment is on policy holders of the insolvent insurance company only (or is it all companies in the jurisdiction?), and that it isn't that high, at most one or maybe two months of premiums.  Not clear if this can cover the obligations of a defaulting AIG subsidiary or what happens if it doesn't. 

Why doesn't this happen more?

I've wondered in the past why this isn't more common (Spiegel, via Volokh):

German police say at least one of the identical twin brothers Hassan and Abbas O. may have perpetrated a recent multimillion euro jewelry heist in Berlin. But because of their indistinguishable DNA, neither can be individually linked to the crime. Both were set free on Wednesday.

In the early morning hours of February 25, three masked men broke into Germany's famous luxury department store Kaufhaus Des Westens (KaDeWe). Video cameras show how they climbed into the store's grand main hall, broke open cabinets and display cases and made off with an estimated €5 million worth of jewelry and watches.

When police found traces of DNA on a glove left at the scene of the crime, it seemed that the criminals responsible for Germany's most spectacular heist in years would be caught. But the DNA led to not one but two suspects -- 27-year-old identical, or monozygotic, twins with near-identical DNA.

German law stipulates that each criminal must be individually proven guilty. The problem in the case of the O. brothers is that their twin DNA is so similar that neither can be exclusively linked to the evidence using current methods of DNA analysis. So even though both have criminal records and may have committed the heist together, Hassan and Abbas O. have been set free.

Both brothers have stolidly refused to comment ever since their arrests on February 11. Since no further evidence has become available, police cannot detain them.

The only problem here is that it is a three person crime, so it might be pretty easy to make the case that both were involved.  It would be a much better reasonable doubt defense for a single person crime. 

'Wall Street's Flight back to Partnership'

Larry Ribstein writes:

Wall Street's Flight back to Partnership

As I’ve been saying, the uncorporation (partnerships, LLCs, limited partnerships) is set to rise out of the ashes of Wall Street’s moribund corporate model. Wall Street investment firms, incorporated in the 1990s, lost control of risk and ended up as banks. The nail in their coffin is government money, with its baggage of heavy scrutiny, even if the firms manage to avoid confiscatory taxes on compensation.

Yesterday brought this Bloomberg story (HT Carney) about the emergence of Wall Street trading boutiques snapping up refugees from the big firms:

Broadpoint, whose shares have outperformed Citigroup Inc.’s by almost 51 percentage points this year, has added more than 240 people since September 2007. They include traders from Bear Stearns Cos., Lehman Brothers Holdings Inc. and Merrill Lynch & Co., which either collapsed or were absorbed by bigger banks * * * Cantor Fitzgerald LP, the closely held securities firm, has hired 100 people in the past six months from banks, including UBS and Bear Stearns.

* * *“The talent is streaming out of the doors of the big firms,” Bruce Foerster, a former Lehman Brothers managing director and now president of South Beach Capital Markets in Miami said. “As the best and the brightest leave, they will tip their hat to Senator Christopher Dodd. Bright people won’t want to be at places where the government is.”