It seems I will be teaching Jurisprudence again next year after a long hiatus. (That link is to the old syllabus; it will change some.)
Although I start with The Case of the Speluncean Explorers, I think, slightly wistfully, that I won’t be able to include this modern version from Legal Fiction.
Exactly which of the following statements from yesterday’s proposed resolution of the American Society of International Law (ASIL) is political?
1. Resort to armed force is governed by the Charter of the United Nations and other international law (jus ad bellum)
2. Conduct of armed conflict and occupation is governed by the Geneva [Conventions] of August 12, 1949 and other international law (jus in bello)
3. Torture and cruel, inhuman, or degrading treatment of any person in the custody or control of a state are prohibited by international law from which no derogations are permitted.
4. Prolonged, secret, incommunicado detention of any person in the custody or control of a state is prohibited by international law.
5. Standards of international law regarding treatment of persons extend to all branches of national governments, to their agents, and to all combatant forces.
6. In some circumstances, commanders (both military and civilian) are personally responsible under international law for the acts or their subordinates.
7. All states should maintain security and liberty is a manner consistent with their international law obligations.
(Leave aside the possibly Freudian slip by the scribe, who wrote “Contentions” for “Conventions” in paragraph two.)
This is actually pretty tame stuff. Statements 1-6 are pretty standard boilerplate recitations of well-known principles of international law. (For example, I think you would be hard-put to find a teacher of international law in any civilized country who would give a student credit for writing the opposite on a final exam.) Number seven just says that countries should follow the law.
So what is “political”? And if this is “political,” what’s non-political? Cowed silence in the face of barbarity?
I’m leaving for Boston shortly in order to attend what promises to be a really interesting symposium organized by the Boston College Law Review on Owning Standards. I think that the conference organizers and moderators (Profs. Lawrence Cunningham, Joe Liu and Fred Yen) have done something very clever: they’ve identified an important but under-theorized topic and are focusing attention on it. Not only do I get to see a bunch of smart and nice folks, but I hope to learn a lot too. And the weather forecast says it will only be cold at night.
Caroline writes,
I was stunned to read today that the Halle Orchestra, founded in 1858 and based in my home town (city) of Manchester, has canceled a planned US tour because it decided that the enormous cost of obtaining visas (because of lost work days due to the need to visit the US embassy in London for personal interviews) meant that the visit was not sensible from an economic point of view. I have heard similar stories about academics deciding not to try to come to the US because it is too complicated.
Manchester is four to five hours from London. And these same musicians could have tourist visas without question and without interviews. But if they’re going to play for us (which I suppose involved some payment somewhere), they each have to have personal interviews.
And these idiotic visa policies make us better off how exactly?
Picketline blog has text and great pictures of Ashe Tuesday.
And Pres. Shalala has just sent out a message to the university community. If you don’t think about it too much it is a great piece of persuasive writing but contains a huge logical fallacy. And a bit of what I fear may be wishful thinking.
Let’s start with the (accurate) set-up
Basically, [the Ashe students] want the university to tell one of our contractors, UNICCO, to accept cards that the union, SEIU, has had UNICCO employees sign requesting union recognition. The union argues that collecting signatures as an indication of what the employees want is better and fairer than a secret, federal government (National Labor Relations Board) supervised vote. The contractor, UNICCO, has called for the secret ballot procedure supervised by the NLRB (it should be noted that recognizing a union on the basis of cards is optional under the law; recognizing a union under a secret ballot election is mandated by the law).
Now here’s the fallacious bit:
The students who sat in yesterday support the SEIU position. They wanted the university to share their view. They believe the NLRB process takes too long and is flawed. As I explained to them, we are neutral on the process the union and the contractor need to work that out. However, when pushed on why we couldn’t just choose to support the card-signing system, I pointed out that the university simply could never take a position against a secret ballot procedure supervised by a federal government agency. Secret ballots are at the heart of our democratic system. In fact, many of the UNICCO employees in our community came to this country precisely because of our free (and secret ballot) elections.
I hope very much that this is just PR and not what Pres. Shalala actually believes. Because it’s odd.
There is no reason in the world why the University couldn’t if it chose take a position that a process run by the Bush administration has an anti-union bias. But leave that aside. Suppose both processes are in fact formally fair, but that they have different psychological biases: card-check provides a greater chance one-on-persuasion; ballot, which takes place at a defined time, allows the best chance for the employer to maximize its inducements and threats so that they are at their peak effectiveness at the moment of the vote. In that world, there are no “neutrals”.
But wait. It gets stranger. President Shalala thinks that there’s some magic “third way” heretofore unknown to labor lawyers, and that we here at UM are going to invent it:
I suggested last night that everyone sit down and see if they can find a third option that is free from intimidation. We need a fair democratic process for the employees of UNICCO to decide whether or not they want SEIU to represent them, free from intimidation or coercion from either side, or concern about their job stability. That discussion will begin Friday at noon.
As I’ve said before, labor law is way outside my areas of even minimal competence. But I do read the newspapers. And if there was a third way beside polling people asynchronously (card check) and polling people synchronously (ballot), identifying it would seem to me to be something of a feat.
The classroom applications of this device are simply too horrible to contemplate.
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