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July 1, 11:37 PM / Commercial Law / ALI Principles of the Law of Software ContractsLast month, I posted a call for proposals for a program and print symposium on the recently-approved Principles of the Law of Software Contracts. Here's an overview and remarks from Reporter Bob Hillman for the benefit of those who have not already read them on Concurring Opinions or ContractsProf.
Maureen O’Rourke, the Associate Reporter on the Principles of the Law of Software Contracts, and I are posting the following to acquaint readers with the Principles and also to respond to some criticism of one section of the Principles that creates, under certain circumstances, an implied warranty of no known material hidden defects in the software.
On May 19, the membership of the American Law Institute unanimously approved the final draft of the Principles of the Law of Software Contracts. As the Introduction to the project states, the Principles “seek to clarify and unify the law of software transactions.” The Principles address issues including contract formation, the relationship between federal intellectual property law and private contracts governed by state law, the enforcement of contract terms governing quality and remedies, the meaning of breach, indemnification against infringement, automated disablement, and contract interpretation.
The Introduction to the Principles explains further that “[b]ecause of its burgeoning importance, perhaps no other commercial subject matter is in greater need of harmonization and clarification. . . . [T]he law governing the transfer of hard goods is inadequate to govern software transactions because, unlike hard goods, software is characterized by novel speed, copying, and storage capabilities, and new inspection, monitoring, and quality challenges.” Many of the rules of Article 2 of the UCC therefore apply poorly to software transactions or not at all, and the Principles are intended to fill the void.
The Principles are not “law,” of course, unless a court adopts a provision. Courts can also apply the Principles as a “gloss” on the common law, UCC Article 2, or other statutes. Nor do the Principles attempt to set forth the law for all aspects of a transaction, but instead rely on sources external to the Principles in many areas.
The Principles apply to agreements for the transfer of software or access to software for a consideration, i.e., software contracts. These include licenses, sales, leases, and access agreements. The project does not apply to the exchange of digital media or digital databases. It applies a predominant purpose test to determine applicability to transactions involving embedded software or software combined in one transfer with digital media, digital databases, and/or services.
We are the Reporter and Associate Reporter of the software principles. We have been greatly aided by our advisors, consultative group members, ALI Council members, liaisons from the National Commissioners on Uniform State Law, Business Software Alliance, and the American Bar Association, and many additional lawyers from industry and other groups who, over the last five and one-half years, have met with us, talked with us on the phone, and exchanged e-mails with us. We believe the project moved along smoothly largely because of the efforts of all of these groups and individuals.
Nevertheless, in the two weeks leading up to approval in May, we received communications from a few software providers evidencing concern largely with one section of the Principles. Section 3.05(b) creates a non-excludable implied warranty that the software “contains no material hidden defects of which the transferor was aware at the time of the transfer.” The section only applies if the transferor receives “money or a right to payment of a monetary obligation in exchange for the software.” Because the section may be the most controversial provision, we devote the rest of this post to the issue.
Despite concerns that section 3.05(b) creates “new law,” it simply memorializes contract law’s disclosure duties and tort’s fraudulent concealment law. The section makes clear that these rules apply to software transfers in order to allocate the risk to the party best able to accommodate or avoid the costs of materially defective software. Obviously this is the transferor in situations where only it knows of the material defect and the transferee cannot protect itself. The section requires that the transferor knows of the defect at the time of the transfer (negligence in not knowing is not enough to trigger liability), the defect is material, and it is hidden.
A few software providers have concerns that the concepts of “hidden,” and “material defect” are obtuse and will “increase litigation” or require a flood of “detailed notices” to prospective users. These concepts, however, are hardly unknown to the law. A comment to section 3.05(b) says that a “hidden” defect occurs if the “defect would not surface upon any testing that was or should have been performed by the transferee.” This is nothing new. See, e.g., UCC 2-316(3)(b) (”there is no implied warranty with regard to defects which an examination ought in the circumstances to have revealed to [the buyer]“).
A few software providers also worry about the meaning of “material defect.” The comments to section 3.05(b) point out that the section simply captures the principle of material breach: Does the defect mean that the transferee will not get substantially what it bargained for and reasonably expected under the contract? The criticism that “materiality” is too vague, if accurate, would mean that contract law would have to abolish its material breach doctrine too.
Putting together the requirements of actual knowledge of the defect at the time of the transfer, that the transferee reasonably does not know of the defect, and that the defect constitutes a material breach means that a transferor would be insulated from liability in situations identified by the concerned software providers as problematic. These include where the transferor has received reports of problems but reasonably has not had time to investigate them, where the transferee’s problems are caused by uses of which the transferor is unaware, where the transferor learns of problems only after the transfer, and where the problems are benign or require reasonable workarounds to achieve functionality. The best example of when section 3.05(b) would apply is, as comment b to the section says, where the transferor already knows at the time of the transfer that the software will require “major workarounds . . . and cause[] long periods of downtime or never [will] achieve[] promised functionality,” the transferee cannot discover this for itself, and the transferor chooses not to disclose the defect.
As we have already said, the section simply memorializes existing law. Under the common law, a contracting party must disclose material facts if they are under the party’s control and the other party cannot reasonably be expected to learn of the facts. Failure to disclose in such circumstances may amount to a representation that the facts do not exist and may be fraudulent. See, e.g., Shapiro v. Sutherland, 76 Cal. Rptr. 2d 101, 107 (Cal. Ct. App. 1998) (”Generally, where one party to a transaction has sole knowledge or access to material facts and knows that such facts are not known or reasonably discoverable by the other party, then a duty to disclose exists.”); Hill v. Jones, 725 P.2d 1115, 1118-19 (Ariz. Ct. App. 1986) (”[U]nder certain circumstances there may be a ‘duty to speak.’ . . . [N]ondisclosure of a fact known to one party may be equivalent to the assertion that the fact does not exist. . . . Thus, nondisclosure may be equated with and given the same legal effect as fraud and misrepresentation.”). The Restatement (Second) of Contracts section 161(b) states that “[a] person’s non-disclosure of a fact known to him is equivalent to an assertion that the fact does not exist . . . where he knows that disclosure of the fact would correct a mistake of the other party as to a basic assumption on which that party is making the contract and if non-disclosure of the fact amounts to a failure to act in good faith and in accordance with reasonable standards of fair dealing.” Section 161, comment d of the Restatement (Second) adds “In many situations, if one party knows that the other is mistaken as to a basic assumption, he is expected to disclose the fact that would correct the mistake. A seller of real or personal property is, for example, ordinarily expected to disclose a known latent defect of quality or title that is of such character as would probably prevent the buyer from buying at the contract price.”
One concern of a commentator is that fraudulent concealment is a tort, implying that it has no place in the Principles. But the principle appears prominently in the Restatement (Second) of Contracts section 161. And why not memorialize a principle that discourages a party in a contract setting from hiding material facts that the other party reasonably does not know? The commentator notes that fraudulent concealment requires intent to deceive, but wouldn’t that be the usual inference if a transferor licenses software it knows is materially defective and knows the transferee cannot discover it?
A few organizations also are concerned that section 3.05(b) cannot be disclaimed. But there are plenty of cases that do not allow a party to contract away liability for concealment. One critic wonders why a statement such as “I am not giving any assurances about there being no defects in this software,” should not insulate a transferor from liability. A reasonable licensee, assuming the good faith of the licensor, would believe that this licensor does not intend to make any express warranties or implied warranties of merchantability or fitness, not that the licensor knows that the software is materially defective so that the software will be largely worthless to the licensee. A transferor playing this game is surely in bad faith and, frankly, engaging in reprehensible conduct. But there is a way to ensure no liability under this section, namely to disclose material hidden defects. In effect, disclosure is the disclaimer.
Bob Hillman and Maureen O’Rourke
June 2, 2009The Concurring Opinions post -- which Bob asked me to re-post, with the blessings of the Concurring Opinions folks -- has provoked several comments and has been the subject of a follow-up post by David Hoffman, one of Concurring Opinions's regular contributors. Dave's post has generated its own comments. While we here at Commercial Law might have a vested interest in generating site traffic, it may be more efficient to funnel feedback through a single conduit. Because Concurring Opinions got the ball rolling, feel free to comment, or to respond to existing comments, there.
July 1, 1:02 PM / Ratio Juris / Islam & Justice: An Introduction
Justice, ‘adl (also as or related to haqq—‘right,’ qist—‘equity,’ sidq—‘truth,’ and ihsān—‘virtue’ or ‘beneficence’), is one of the foremost themes in the Qur’ān, indeed, it is part of the metaphysical rationale for creation: ‘God created the heavens and earth for a purpose: to reward each soul [i.e. provide just recompense] according to its deeds. They will not be wronged’ (45: 22). Mankind alone is responsible for whatever justice—or injustice—is in the world (10: 44). Divine justice is more than a quid pro quo exchange, at least with regard to merit- or desert-based principles, for God ‘doubles any good deed and gives a tremendous reward of His own’ (4: 40).
The Qur’ānic concern for justice reiterates one of the fundamental demands (as ‘righteousness’) made by God upon man in revelations to the prophets of the Hebrew Bible. The fact that the Qur’ān often refers to terms such as ‘adl (equitable, just), ihsān (beneficence) and ma‘rūf (a generally accepted good) without defining them, suggests a relation to justice prior to the Qur’ānic revelations, thereby re-affirming its importance and reminding its readers of the continuity with earlier revelations. Moreover, this pre- and extra-Qur’ānic reference to justice can also be inferred from the fact that mankind is endowed with a universal and objective moral nature or fitra (incipient or dispositional moral and spiritual awareness). It is fitra that forms the objective basis for the equal treatment of all human beings, linking natural law, human nature, and the divine command to build a just society. Perhaps the quintessential articulation of the importance of justice in the Qur’ān is found in 4: 135:
You who believe, uphold justice and bear witness to God, even if it is against yourselves, your parents, or your close relatives. Whether the person is rich or poor, God can best take care of both. Refrain from following your own desire, so that you can act justly—if you distort or neglect justice, God is fully aware of what you do.
The call to justice is complemented by numerous admonitions against injustice in the Qur’ān.
‘Adl, a noun, comes from the verb ‘adala, which means, among other things, to straighten or modify; to depart or deflect from one (presumably wrong) path to the other (presumably right one) [cf. Q1: 17 on ‘the Straight Path,’ al-sirāt al-mustaqīm, and the literal meaning of sharī‘ah as ‘the way or path’ to water]; to equalize; and to balance, weigh, or be in equilibrium. Among the numerous suggestive synonyms we cite nasīb and qist, rightful share; qistās and mīzān, scale; and taqwīm, straightening. Other synonyms imply the classical Greek virtue sōphrosynē: temperance, harmony, self-mastery, and with respect to action: balance, proportionality and judiciousness, or the Aristotelian principle of the (Golden) Mean between extremes. The semantically rich metaphorical image of ‘the scale’ (mīzān) is used in the Qur’ān with reference to divine justice on the Day of Judgment (yawm ad-Din).
Divine justice by definition perfect, eternal and ideal, we are urged to make every effort to approximate and reflect this metaphysical fact (a capacity owing to fitra), reward or punishment in the next life allotted in accordance with the sincerity and strength of our endeavors to instantiate this divine (ideal) model, one reason for the association of justice with ihsān, beneficence or moral excellence, that is, doing the utmost good. The imperative of justice is both an individual and collective obligation for Muslims, so that while we may distinguish between personal and political virtues, they are necessarily tied together. Mohammad Hashim Kemali provides a succinct summary:
Justice is generally understood to mean ‘putting everything in its rightful place,’ and in the context of Sharī‘ah as ‘giving everyone his or her entitlement.’ Islam’s unqualified commitment to impartial justice is manifested in numerous places in the Qur’ān. We also note the Qur’ānic conception of justice is neither rigid nor rule-bound but open to a variety of considerations. This can be seen in various places in the text of such concepts as ma‘rūf (decent, fair, customary) and ihsān (equity, the doing of good) next to ‘adl (justice). The Qur’ān and Sunnah also integrate intuitive insight (firāsah) and considerations of a just policy (siyāsah shar‘iyyah) into its vision of justice. Moreover, Sharī‘ah validates ijtihād bi’l-ra’y (opinion-based legal judgement) as a basis of adjudication in the absence of a clear text. When the judge adjudicates on the basis of ijtihād, he relies not only on his understanding of Sharī‘ah but also his conscience, insight and experience. This is equivalent to saying that equity and fairness constitute important ingredients of both ijtihād and ‘adl in Islam. Mohammad Hashim Kemali, Shari‘ah Law: An Introduction (Oxford, England: Oneworld, 2008): 199-200.
The Prophet Muhammad appears to have had a keen sense of justice, publicizing widespread inequity and oppression in and around Mecca: a new if not stricter standard of justice was needed to address questions of fairness and exploitation not beholden to tribal status and the privileges of wealth. Whatever dimensions of justice were part of the bedouin ethic of muruwwa in the Jahiliyya, they precipitously declined in the time and place of Muhammad, hence the Meccan revelations regarding the treatment of orphans and the plight of the poor. The Qur’ān evidences the urgency of addressing issues that fall under the rubric of socio-economic or distributive justice, rebuking those who have greedily consumed their inheritance while loving wealth ‘with a passion’ (89: 19-20). Moreover, the enshrinement of zakāt (alms-giving) as the third pillar of practice in Islam makes this duty integral to Muslim identity, effectively institutionalizing a ‘right’ for the needy and deprived to a share in the community’s wealth: no longer would the provision of basic material needs be at the whim or discretion of tribal chiefs. In addition to this compulsory obligation, Muslims of sufficient means are expected to practice voluntary charitable giving (sadaqah). The Qur’ān’s ill-understood opposition to usury (ribā) further illustrates the attempt to deal with problems of distributive justice.
Historically, questions of political justice were first broached in the Khārijite opposition to the Umayyad caliphate. The Khārijites invoked the doctrine of qadar (power; free will, thus the corollary proposition that each individual is responsible for his or her acts) against the Umayyad rulers’ attempt to legitimize their rule through the principles of ijma‘ (consensus, agreement) and bay‘ah (oath of allegiance), fortified with the theological doctrine of jabr (lit., compulsion; predestination; here in the sense that Umayyad rule was seen as ordained by God). The ‘absolute justice of God’ was one of the five tenets of Mu‘tazilite kalām (theology), unremarkable as such until we learn that it was bound up with debates over the nature of evil and injustice, including the metaphysical and ethical scope of man’s free agency. The Mu‘tazilites even took to referring to themselves as ‘The People of Justice and Unity.’ The pursuit and realization of justice for the Mu‘tazilah was both determined and constrained by the powers of reason (‘aql).
‘The Father of Arab Philosophy’ and Islam’s first significant philosopher, Abū Yūsuf Ya‘qūb ibn Ishaq al-Kindi (d. c. 866) held justice to be the central virtue owing to its balancing and coordinating functions vis-à-vis other (principally classical Greek) virtues, thereby demonstrating the integration of Peripatetic and Neoplatonic ideas into a distinctively Islamic philosophy. Islam’s first truly systematic philosopher, al-Fārābī (c. 870-950), envisioned the ideal Islamic polity portioning such goods as security, wealth, honor and dignity according to a desert principle of distributive justice. Rational justice, formulated in terms of a social contract theory inspired by Plato’s Republic and Aristotle’s Ethics, as well as the Islamic sciences generally, was the center point of Ibn Sina’s (Avicenna) (979-1037) political scheme to secure the common welfare from a pool of basic resources. For Ibn Rushd (Averroes) (1126-1198), justice is the sum and highest of all virtues of man as a citizen of the polity. Furthermore, it inheres in the fulfillment of role responsibilities and duties in a social division of labor structured according to the standards and strictures of philosophy (falsafah). While some virtues, like wisdom and courage, are class-specific, justice is pertinent to all citizens, provided they perform the vocation for which they are fitted ‘by nature.’
Justice in jurisprudential terms entails in the first instance equal treatment of all before the law (fiqh). With the sharī‘ah as lodestar (i.e., God’s Will in ideal and abstract form), both ethics and law in Islam approach justice through the doctrinal formula of ‘commanding right and forbidding wrong’(al-amr bi’l-ma‘rūf wa’l-nahy ‘an al-munkar). In short, fiqh (Islamic jurisprudence), as the human endeavor to understand and interpret God’s Will, is a system of ethico-legal obligation formulated in imperative or obligatory (amr) and prohibitive (nahy) terms, with all human actions exhaustively classified as mandatory (fard or wājib), encouraged (mustahabb or mandūb), permissible (halāl or mubāh), discouraged (makrūh), or forbidden (harām). Procedural justice in Islam tends toward a communalist conception of personalism rather than corporatist and administrative principles insofar as trust is placed in the ‘just judge’ or ‘just witness,’ trumping the judicial system as such. In other words, the status and personal qualities of juridical actors are paramount and this might be charitably described as one of the implications of a religious formulation of virtue jurisprudence.
The Islamic modernism or ‘reformism’ of a Muhammad ‘Abduh (1849-1905) or a Muhammad Rashīd Ridā (1865-1935) devotes more attention to issues of individual freedom and national self-determination than institutional and public policy questions regarding the mechanics of distributive justice. Exemplified in the works of Sayyid Qutb (1906-1966), the Nahdah’s (renaissance; rebirth) second generation of Muslim intellectuals (i.e. after World War II) brought back to the political and economic foreground pressing questions of distributive justice, albeit in a manner that lacked the complete historical compass and ethical range of earlier philosophical and jurisprudential discussions. Most recently, Muslim scholars have persuasively argued for the relevance of Islamic conceptions of justice and jurisprudence to the ideals and values intrinsic to international human rights, such rights being the primary means for realizing and exploring principles of international justice. The Islamist social organization and political party Hizbullāh in Lebanon, and what might be called its Sunni counterpart Hamas in the Occupied Palestinian Territories, have made the pursuit of social justice a religious obligation central to their welfare work and political platforms. In Turkey, we find the (post-?) Islamist Justice and Development Party (AK Party) proclaiming (in its political program) a commitment to laws “based on [the] fundamentals of universal justice and human rights.”
Further Reading: Khaled Abou El Fadl, Speaking in God’s Name: Islamic Law, Authority and Women (Oxford, England: Oneworld, 2001); Mashood A. Baderin, International Human Rights and Islamic Law (New York: Oxford University Press, 2003); Michael Cook, Commanding Right and Forbidding Wrong in Islamic Thought (Cambridge, UK: Cambridge University Press, 2000); Sohail H. Hashmi, ed., Islamic Political Ethics: Civil Society, Pluralism, and Conflict (Princeton, NJ: Princeton University Press, 2002); Albert Hourani, Arabic Thought in the Liberal Age: 1798-1939 (Cambridge, UK: Cambridge University Press, 1983 ed.); Majid Khadduri, The Islamic Conception of Justice (Baltimore, MD: Johns Hopkins University Press, 1984); Ann Elizabeth Mayer, Islam and Human Rights (Boulder, CO: Westview Press, 4th ed., 2007); and, Amr G.E. Sabet, Islam and the Political: Theory, Governance and International Relations (London: Pluto Press, 2008).
A different version of the above is found in Juan E. Campo, ed., Encyclopedia of Islam (New York: Facts on File/Checkmark Books, 2009): 416-418.
June 26, 5:41 PM / Agricultural Law / Agriculture's Embarrassment
I grew up on the farm that I still own and treasure. I have represented and advocated for farmers for all of my legal professional life. At this point, however, I am embarrassed of the industry that I love so dearly.
Steven Pearlstein's column For the Farm Lobby, Too Much Is Never Enough, in today's Washington Post explains why.
As Pearlstein begins his article, no industry has more to loose from global climate change than agriculture. Many times have I argued that agriculture is unique because of its dependency on the weather.
Those who still want to hold farmers in special regard reference Jefferson and agrarianism, arguing that farmers' dependency on land and nature gives them a special appreciation for the reconciliation of self interest and public good. See, e.g., William B. Browne, Jerry Skees, Louis Swanson, Paul Thompson, & Laurian Unneverhr, Never Assume that Agrarian Values Are Simple, Sacred Cows And Hot Potatoes: Agrarian Myths In Agricultural Policy 7 (Westview Press 1992).
Scratch that theory.
As Pearlstein points out, despite agriculture's role in contributing to global warming, in the current version of the climate change bill, the farm lobby fought hard and obtained exemptions from much of the regulation that is imposed on other industries, and it received other significant concessions.Nevertheless, the article reports that
Bob Stallman, president of the American Farm Bureau Federation and the self-proclaimed "voice of agriculture," yesterday urged all House members to vote against the climate-change bill, claiming it would "result in a net economic cost to farmers with little or no environmental benefit."Not all groups are so opposed. National Farmers Union and American Farmland Trust support the current bill. But, most are actively working against passage. FarmPolicy.com posted a listing of positions this morning.
The agricultural community should stop to consider not only its own long range interest in climate protection, but to consider the public good that we all need keep in mind in order to address the issue of climate change. And, if it really wants to be selfish, it can also consider the backlash that may well be coming. Pearlman concludes his article with the following:
The next time the world's most selfish lobby comes to Washington demanding drought relief, someone ought to have the good sense to tell them to go pound sand.An industry so wedded to government support and special treatment should pick its battles wisely.It is time for the agricultural industry to grow up and acknowledge that there are environmental problems that EVERYONE needs to work together to address.
June 26, 4:08 PM / Commercial Law / Mid-Year Legislative UpdateWith most state legislatures having concluded their business for the year, here is the 2009 mid-year legislative update.
Revised Article 1
As of January 1, 2009, Revised Article 1 was in effect in thirty-four states: Alabama, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, Florida, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Minnesota, Montana, Nebraska, Nevada, New Hampshire, New Mexico, North Carolina, North Dakota, Oklahoma, Pennsylvania, Rhode Island, South Dakota, Tennessee, Texas, Utah, Vermont, Virginia, and West Virginia.
Notwithstanding my suggestion elsewhere that the promulgation of a substitute § R1-301 might “grease the skids” for additional enactments, 2009 has turned out to be a relatively quiet legislative year for Revised Article 1, with only three enactments – down from five in 2008, and seven in 2007. While the most noteworthy nonuniformity among the thirty-seven enactments remains the definition of “good faith” – with 26 states having adopted the uniform § R1-201(b)(20) definition and 11 having retained the pre-revised definition that imposes a different good faith standard on merchants and non-merchants – all three 2009 enactments adopt the uniform definition and one of the eleven states (Indiana) that retained the pre-revised definition has amended its version of Revised Article 1 to adopt the uniform definition effective July 1, 2010.
As of June 26, Alaska (HB 102), Maine (LD 1403), and Oregon (SB 558) have enacted Revised Article 1 thus far this year. The Alaska and Oregon enactments take effect on January 1, 2010, with Maine’s following on February 15, 2010.
The Washington legislature failed to act on SB 5155 before adjourning sine die on April 26. (That’s probably just as well, because the introduced version of SB 5155 appeared to be drawn directly from the language of official Revised Article 1 circa 2001 and included the no-longer-official version of Revised 1-301 that all 37 enacting states have declined to adopt).
It is possible that the Massachusetts legislature will consider a Revised Article 1 bill sometime this year; however, having waited months for HD 89 to be assigned a bill number, and given the failure of four prior bills to garner a floor vote in either chamber, I would be surprised to see definitive action anytime soon.
Article 2 and 2A Amendments
As of June 26, 2009, only three state legislatures (Kansas, Nevada, and Oklahoma) had considered bills proposing to enact the 2003 amendments to UCC Articles 2 and 2A. In 2005, Oklahoma amended Sections 2-105 and 2A-103 of its Commercial Code to add that the definition of “goods” for purposes of Articles 2 and 2A, respectively, “does not include information,” see 12A Okla. Stat. Ann. §§ 2-105(1) & 2A-103(1)(h) (West Supp. 2008), and amended its Section 2-106 to add that “contract for sale” for purposes of Article 2 “does not include a license of information,” see id. § 2-106(1). The net effect is similar to having enacted Amended §§ 2-103(k) & 2A-103(1)(n), both of which exclude information from the meaning of “goods” for purposes of Article 2 and 2A, respectively. Otherwise, no state has enacted the 2003 amendments.
Article 3 and 4 Amendments
As of January 1, 2009, the 2002 amendments to Articles 3 and 4 were in effect in six states: Arkansas, Kentucky, Minnesota, Nevada, South Carolina, and Texas. However, by July 1, 2010, that number will increase by at least 50%.
As of June 26, Indiana (SB 501), New Mexico (SB 74), and Oklahoma (SB 991) have enacted the 2002 amendments to Articles 3 and 4 thus far this year. Oklahoma SB 991 will take effect on November 1, 2009; New Mexico SB 74 will take effect on January 1, 2010; and Indiana SB 501 will take effect on July 1, 2010.
In addition to enacting the 2002 amendments to Articles 3 and 4 and the usual conforming amendments, Indiana SB 501 also revises the definition of “good faith” in Ind. Code § 26-1-1-201(19) – Indiana’s counterpart to UCC § 1-201(b)(20) – to require all parties to act honestly and to observe reasonable commercial standards of fair dealing. At present, Ind. Code § 26-1-1-201(19) requires only “honesty in fact.”
Revised Article 7
As of January 1, 2009, Revised UCC Article 7 was in effect in thirty-one states: Alabama, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Maryland, Minnesota, Mississippi, Montana, Nebraska, Nevada, New Hampshire, New Mexico, North Carolina, North Dakota, Oklahoma, Pennsylvania, Rhode Island, Tennessee, Texas, Utah, Virginia, and West Virginia. As of July 1, Revised Article 7 will be in effect in South Dakota, as well.
This has been a relatively active legislative year for Revised Article 7. In addition to South Dakota SB 89, which will be in effect by the time you read this, Alaska (HB 102), Maine (LD 1405), and Oregon (SB 558) have already enacted Revised Article 7 in 2009, and Louisiana HB 403 will become law within the week unless Governor Bobby Jindal vetoes it. Alaska HB 102 and Oregon SB 558 will take effect on January 1, 2010, as will Louisiana HB 403, if enacted. Maine LD 1405 will take effect on February 15, 2010.
Georgia HB 451 made significant progress toward adoption. First introduced on February 18, the Georgia House unanimously passed the House Judiciary Committee’s substitute version on March 12, and the Senate Judiciary Committee recommended passage on March 26. However, the legislature adjourned on April 3 without a third reading and final action in the senate.
Washington SB 5154 stalled, like its Revised Article 1 counterpart, but without as compelling a reason.
UETA
While the Georgia legislature did not pass HB 451 prior to adjourning, it did pass the Uniform Electronic Transactions Act (HB 126), to which Governor Sonny Perdue affixed his signature on May 5. As a result, effective July 1, 2009, Illinois, New York, and Washington will be the only states in which UETA is not in effect.
June 26, 2:58 PM / Ratio Juris / Divine Law (Sharī‘ah) & Jurisprudence (fiqh) in Islam
Having recently introduced the subjects of constitutionalism and democracy vis-à-vis Islam, I thought it would help to say a few basic things about Sharī‘ah and fiqh, in particular as they have bearing upon our concerns about human rights and democracy, concerns of course common to Muslims and non-Muslims alike. Perhaps needless to say, there persists an inexcusable lack of fundamental understanding among non-Muslims about the meaning of divine law and jurisprudence in Islam. And it should be said that not a few Muslims may possess a less than sophisticated knowledge of Sharī‘ah and fiqh as well, as contemporary Muslim scholars have made plain. Whatever the occasional "wisdom of crowds" or the truth captured by Condorcet's "jury theorem" (which provides some theoretical support for democracy), the hoi polloi or masses, by definition, are not intellectuals, this being one of several reasons defenders and critics alike have understood the importance of formal and informal education in democratic polities if they are to have any realistic prospect for long-term survival, let alone flourishing, and accounts for the fact that democracies can never, or at least should not be, purely "participatory" (let alone 'deliberative'), that is, allow for literal "rule by the people" (or, literally, 'popular sovereignty'), even if we find sufficient reason here and there or now and again to expand the parameters of participation and deliberation. In other words, democracies in the (post-) modern world are necessarily "representative."
We first introduce Sharī‘ah, followed by a sketch of the meaning of fiqh, both of these being basic and introductory treatments of their respective subjects. For further exploration interested readers should consult the works listed under "Jurisprudence" in my Islamic Studies Bibliography.
Sharī‘ah: literally, something like ‘the way,’ or ‘the path to the watering hole (or spring),’ and refers to divine law or God’s will in Islam. Historically, the term Sharī‘ah refers to all the elements of a proper, i.e. righteous life; this includes moral behavior, proper respect towards Allāh, correct belief, personal piety, and so on. In other words, it means the right way to live one's life as a Muslim in conformity to God’s will. In more recent times, the scope of its reference has narrowed to that which falls under the rubric of Islamic law (fiqh), but there is a logical, conceptual and practical difference between Sharī‘ah and fiqh. The latter involves the human process of understanding and implementing the divine law. It is a serious (religious, epistemological, ontological, ethical…) mistake to conflate Sharī‘ah and fiqh, or to use these terms, as often happens today, as synonyms. The Sharī‘ah, writes Khaled Abou El Fadl, ‘is God’s Will in an ideal and abstract fashion, but the fiqh is the product of the human attempt to understand God’s Will. In this sense, the Sharī‘ah is always fair, just and equitable, but fiqh is only an attempt at reaching the ideals and purposes of Sharī‘ah (maqāsid al-Sharī‘ah). [….] The conceptual distinction between Sharī‘ah and fiqh was the product of a recognition of the inevitable failures of human efforts at understanding the purposes or intentions of God.’
The function of Sharī’ah is here analogous or similar to that of Natural Law intimations among the Stoics and both religious and secular Natural Law doctrine as it developed from and after Grotius. Recently, Abdullahi An-Na‘im has made the provocative argument that ‘precisely because sharī‘a is supposed to be binding on Muslims out of religious conviction, a believer cannot be religiously bound except by what he or she personally believes to be a valid interpretation of the relevant texts of the Qur’ān and Sunnah. Yet, given the diversity of opinions among Muslim jurists, whatever the state elects to enforce as positive law is bound to be deemed an invalid interpretation of Islamic sources by some of the Muslim citizens of the state.’ Moreover, such ‘objections to the enforcement of sharī‘a through positive law and the notion of an Islamic state do not, of course, preclude Muslims from personally conforming with every aspect of sharī‘a.’
We might describe the function of Sharī‘ah along the order of a Platonic Form, at least in its ‘bedrock version’ as outlined by T.K. Seung in Intuition and Construction: The Foundation of Normative Theory (New Haven, CT: Yale University Press, 1993). In this account, intuition and construction are two integral processes intrinsic to the functional role of Platonic Forms (or ‘Ideas,’ ‘Archetypes,’ etc.). Platonic Forms—like the Sharī‘ah—are (is) fairly indeterminate, while nonetheless serving as normative, intuitive, and largely nonpropositional foundations (in theory, accessible to any Muslim) for constructing (propositional, hence legal) models as guides for determinate social realities, thus, for example, (the Form) Justice is only the normative foundation for constructing principled models of determinate social orders, none of which fully realizes Justice, and all of which endeavor to approach Justice, succeeding by degrees. What is more, the attempt to instantiate or embody the model is never wholly successful, given the nature of the human condition and the model’s idealized qualities in reference to the Form itself: ‘The indeterminacy of Platonic Forms makes them flexible standards, and their flexibility assures their eternal durability.’ Sharī‘ah is like the Platonic Form in being universal, abstract, and ‘indeterminate,’ and thus cannot directly serve as a normative standard (i.e., any interpretation of the Divine Will needs religiously rationalized and principled justification by way of textual hermeneutics and exegesis). This is perhaps one reason Norman Calder writes that, ‘in modern academic analysis of Islamic law, the word Sharī‘ah is of little use: what we can study and describe is always fiqh.’ Fiqh represents a Platonic-like endeavor to translate Sharī‘ah into direct, concrete, and normative models for particular contexts. As with Platonic intuitionism in which all human beings have access to Platonic Forms, all Muslims, as noted by An-‘Naim above, have access to Sharī‘ah, indeed, they are under a spiritual obligation to attempt to understand (and live by that understanding) the divine law. Such understanding is necessarily partial and fallible and may vary according to the individual (every Muslim is different): ‘Indeterminacy and relativity are inseparable in the domain of realization.’ The divine nature of Sharī‘ah means that it retains a normatively transcendent and evaluative function whatever the extent of its positivization as fiqh. In other words, law as such, or positive law, cannot exhaust the evaluative function of divine law as one’s understanding of same can always deepen, one’s intuitive discernment can always be keener. As a transcendent (nonpropositional) guide for action, and despite its integral relation to Islamic law, Sharī‘ah should not be confused or conflated with any of its specific principled and propositional constructions by way of fiqh, or any political proposal for a putatively Islamic state. Nonetheless, fiqh can serve as an aid in coming to understand divine law insofar as it enables us to obtain further, dialectical insight into that which transcends positive law; discursive reasoning and rational understanding, in other words, and in this case intrinsic to the Islamic science of jurisprudence, are part and parcel of the process of acquiring (intuitive or nonpropositional) insight into divine law. That is to say, there is a dialectical relation between divine and human law that represents, in epistemic terms, a dialectic between propositional knowledge and ‘knowledge by acquaintance’ in a Platonic sense or ‘knowledge by presence’ after Shihāb al-Dīn Suhrawardī: ‘The insight that transcends words cannot be attained except by means of words; what cannot be spoken of becomes manifest in the very act of speaking.’ Like Socrates in the agora, Islamic scholars (jurists, theologians and philosophers) can examine and refute propositions that claim to fully or finally capture the nature or essence of the Divine Will, that pretend to fully embody or ‘positivize’ the Sharī‘a. The jurist’s fallible, limited, and historical understanding of Sharī‘ah, in other words, is evidenced by his facility with ’usūl al-fiqh: how he has arrived at the determination of law, rather than simply the result, that is, the legal determination or ruling itself, or, in the case of furū‘ al-fiqh, the persuasiveness of the arguments explicating the concepts and rules that relate to religious rituals and ethico-religious conduct in the widest sense.
And it is fitra, the Islamic term that designates our primordial inclination or general predisposition to the good as a constituent feature of human nature, that allows individual qua individuals, to have insight into the Divine Will (and thus functions like soul memory in Platonic thought: permitting individual intuitive awareness, however dim or partial, into the Good; this insight is what Socrates set out to awaken in the interlocutors of the dialectical dialogues). In fact, fitra can serve as the Islamic equivalent of individual conscience, according individuals in effect the right of principled objection to interpretations of Sharī‘ah that violate their sincere and sustained endeavors (made in the context of the Islamic tradition) to realize this dispositional awareness of ‘the Good,’ the Divine Will or Sharī‘a.
That said, consider the following comments from Professor Haider Ala Hamoudi, as a ‘legal realist,’ from his blog ‘Islamic Law in Our Times: A Realistic Assessment of Islamic Law in Today’s World’ (http://muslimlawprof.org/), as they help us appreciate the difference between concern with the ‘conceptual’ and focus on the ‘empirical’ or how, in practice, the normative is entangled or even conflated with the descriptive (what others term 'fact/value' entanglement):
In Islamic studies departments, there's this notion of shari'a as this sort of idealized, highly stylized logic driven system that is sort of somewhere in the sky that nobody can see, and then there's fiqh, which is any given juristic interpretation of this beauty written down on paper always with the flaws of that jurist, and then there's actual law, which bears no necessary relationship to either. [….] Certainly shari'a and fiqh, the ideal and then the imperfect reflection of the ideal (still not real) is a favorite of this group, their law review articles go to great lengths to explain the difference between the two, because one must understand how this all works, this lovely thing up there in the sky, its shadow in the academy and then if you're lucky they'll attempt to relate all of that to reality in a way that is, ummm, perplexing. [….] [A]s with any law or rule of social order, when you want to understand what the shari'a is, you have to see what the shari'a actually does. What role in the social order? How? Who has the authority to declare it? Where and when does it conflict with national law and how do Muslims of various sorts react to that? Where is it important to most? Where do some care and not others? THAT is law.
And in one sense that is true enough, but in principle and practice we need to keep in mind the necessary metaphysical, logical or conceptual, and legal distinctions that make a difference to our understanding of what is normative, prescriptive and descriptive (this allows, for instance, appreciation for the fact that what we might describe in any given case as normative or prescriptive is contingent or contestable and that there are may be principled differences of opinion--and arguments to be made--as to what is to properly count as prescriptive or normative).
So, for example, we should bear in mind the normative argument made by Abdullahi An-Na‘im:
When observed voluntarily, Sharī‘ah plays a fundamental role in shaping and developing ethical norms and values that can be reflected in general legislation and public policy through the democratic political process. But…Sharī‘ah principles cannot be enacted and enforced by the state as public law and public policy solely on the grounds that they are believed to be part of Sharī‘ah. If such enactment is attempted, the outcome will necessarily be the political will of the state and not the religious law of Islam. The fact that ruling elites sometimes make such claims to legitimize their control of the state in the name of Islam does not mean that such claims are true. The fact that the state is not a religious institution is the historical experience and current political reality of Islamic societies. [….] [D]ispelling the dangerous illusion of an Islamic state that can enforce Sharī‘ah is necessary for legitimizing and implementing the principles and institutions of constitutionalism, human rights, and citizenship in Islamic societies. Abdullahi An-Na‘im, Islam and the Secular State: Negotiating the Future of Sharī‘a. (Cambridge, MA: Harvard University Press, 2008).
Finally, we will grant the last word to Mohammad Hashim Kamali as evidence for the proposition that there need not be any inherent conflict—let alone contradiction—between Sharī‘a and democratice theory and praxis. This is true despite the historical fact that ‘with reference to justice and basic rights…the traditional fiqh in the areas of al-ahkām al-sultāniyyah (principles of government) and siyāsah shar‘iyyah (Sharī‘ah) has fallen short of reflecting the Qur’ān’s comprehensive conception of justice in the sphere particularly of rights and liberties.’ The following is a summary of points made by Kamali on behalf of our claim:1. Notwithstanding certain reservations, some Muslim commentators have noted the Islamic credentials of formal constitutions in present-day Muslim countries; these constitutions, on the whole, pay greater attention to basic rights and liberties, the foundations of accountable and representative government, and as such tend to be in greater harmony with the basic principles of Islam. [….]
2. In response to the question whether a formal constitution was Islamic, and whether any objectionable elements therein invalidated the whole of a constitution, Muhammad Rashīd Ridā (d. 1935) issued a fatwā that may be summarized as follows: If a constitution seeks to establish a good government, defines the limits of power and ascertains criteria of accountability, then it would be in harmony with Islam. Should there be an instance of disagreement with any of the principles of Islam, only that element should be addressed and amended. For after all many of the great works of fiqh also contain errors, but this does not invalidate the whole of the endeavor or manual in which such an error might have occurred. [….]
3. [Despite] a lack of consensus over the basic definition of “right” in the
Islamic discourse, the word “haqq” is often said to convey a basic meaning
regardless of definitions. Haqq (right) in the Qur’ān occurs in several places and carries a variety of meanings, which include justice, right as opposed to falsehood, a legal claim, an obligation, something that is proven and an assigned portion. The many meanings of haqq in the Qur’ān may be said to be a cause sometimes of ambiguity, even misunderstanding. For instance the shared meaningof haqq between a right and an obligation has persuaded Western Islamologists to draw…the unwarranted conclusion that Islam recognizes only obligations but no right inhering in the individual. This is tantamount to turning a blind eye to the affirmative stance of the Qur’ān and Sunnah on the rights of the individual, including his right to life, right to justice, right to equality, right of ownership, rights to sustenance and support within the family, parental rights, right of inheritance and so forth. Islam’s commitment to justice and its advocacy of human dignity could not be sustained without the recognition of rights. [….] We may add…that Islam’s perspective on rights and liberties is somewhat different from that of constitutional law and democracy and their underlying Western postulates. Islam, like other great religions, is primarily concerned with human relations. In ordinary life, people do not live primarily in terms of rights against others but in terms mutual relationships involving love, compassion, self-preservation and self-sacrifice in pursuit of happiness and peace for themselves and their loved ones. The great religious traditions teach people, with good reason, that such things are not a matter of course nor are they always a question of rights. This would partially explain why most religions tend to emphasize moral virtue, obligation, love and sacrifice even more than the individual’s rights and claims. [….]4. [T]here are differences between the theistic view of right and freedom when compared to what they mean in a secular context, but we also note that taking a totally secular approach to them is not advisable in the Islamic context. We believe that human rights and democratic values would benefit if religious values are also taken into consideration. [….] For the religious reformers to carry forward their struggle for democracy and human rights, they should be seen as authentic articulators of change espousing an alternative from within rather than without the tradition. [….]
5. For moderate Muslim thinkers, Islam’s exhortation to justice does not preclude people’s interpretation of it. On the subject of women’s rights, for example, it is suggested that women’s isolation from public life has been due to backward customary impositions on the Qur’ānic discourse. Thus what is needed is to restore women’s originally independent status in the Qur’ān, and provide a social context where women can exercise their freedom and independence. [….] Political parties and associations are permitted, and Islam stands for consultative and constitutional government with limited powers subjected to the rule of law. Basic rights and freedoms must be protected and government is accountable to the people. Mohammad Hashim Kamali, Sharī‘ah Law: An Introduction (Oxford, England: Oneworld, 2008).
Fiqh: understanding, knowledge; Islamic jurisprudence (law) as derived from Sharī‘ah (lit., the way; divine law, God’s will). Strictly speaking, Sharī‘ah is perfect: immutable and infallible, God’s will as abstractly and ideally understood, while fiqh is fallible and changeable, the product of a human attempt to understand that which is divine. There is, in other words, a logical, conceptual and practical distinction between Sharī’ah and fiqh, however much the latter is inspires the former. Nonetheless, and in the words of Knut S. Vikø, ‘It is more common to use “Sharī’a” as a name for the Islamic legal rules that we actually see applied in our human existence. Then one distinguished between fiqh as the science used to derive the legal rules from their sources and the Sharī’ah as the result of this endeavor, the actual body of laws and rules in all their variations and internal inconsistency.’ As Norman Calder observes, there are two broad types of jurisprudential literature: usūl al-fiqh (‘roots’) and furū‘ al-fiqh (‘branches’) (there is a third type, the tabaqāt—biographical—genre which is common beyond fiqh proper and not treated here). Islamic law itself is the product of the application of usūl al-fiqh (the ‘roots’ or sources of law), the principles and methods through which practical rules are developed from the tradition’s foundational sources: a) the Qur’ān, b) the Sunnah, (or ahādīth) c) ijmā‘ (consensus) of Muslim scholars on a legal rule about a topic not explicitly covered in the aforementioned sources (Shī‘ī jurists deny this is possible; and differences arise as to the possible value of ‘implied’ or ‘silent’ consensus, with Hanafī jurists speaking in its favor), and d) analogy (qiyās), involving reliance on precedent. In conjunction with these sources, subsidiary or supplemental presumptions and principles may aid the jurist in deriving interpretive rules: istihsān (considerations of equity and the application of discretion or preference, the ratio legis or ‘effective cause of the ruling’ differing from one obtained strictly through qiyās); ‘unregulated interest’ or masālih mursalah, explained by Wael Hallaq as arising in relation to a rationally suitable benefit motivated by public interest ‘that is not sustained by textual evidence,’ later this method of reasoning was approved provided ‘it could be shown that the feature of public interest adopted in a case was suitable (munāsib) and relevant (mu‘tabar) whether to a universal principle of the law or to a specific…piece of textual evidence’ (Hallaq); and istishāb, the rational presumption of continuity. There are four major schools (madhhabs) (five, when we add the Shī‘ī) of Islamic law: the Hanafī, the Hanbalī, the Mālikī and the Shāfi‘ī, along with a fair number of other teachers and ‘schools’ (e.g. the Zāhirī, Zaydī, Ibādī, and Ismā‘īlī) throughout Islamic history. In Twelver Shī‘ism, the Usūlī school of jurisprudence predominates. After Shāfi‘ī, the jurist’s decision in a new case of law must fall into one of five categories: the obligatory (wājib), the recommended (mandūb), the permissible (mubāh), the prohibited (harām), or the repugnant (makrūh). Calder defines the scope of the second type of jurisprudential literature:
[Furū‘ al-fiqh] <
June 25, 6:23 AM / Commercial Law / Containing the Crisis and Promoting Economic Recovery
Federal Reserve Governor Elizabeth A. Duke spoke on June 15, 2009 at the Women in Housing and Finance Annual Meeting in Washington, D.C. on whether the government's actions so far in the economic crisis have been effective. Although Governor Duke believes that the programs have been "broadly successful in relieving stresses in the key credit markets," the job is not complete. Governor Duke concluded:
In the past, economic downturns were deepened or prolonged by the premature withdrawal of monetary or fiscal stimulus. To the extent that the severity of the current downturn has thus far been mitigated by extraordinary credit support, a significantly weaker path of lending--and thereby economic activity--could very likely occur if policy support for the financial sector is withdrawn too soon. In this case, stigmatization of support tools such as liquidity programs, direct lending programs, or government capital injections that make participants unwilling to use such programs will have the same effect as a direct policy withdrawal of the programs. And while the path of credit in this cycle compared with others is encouraging, the downturn in credit evident in the most recent quarter provides a reminder that conditions are still far from normal.
Others seem to agree with Governor Duke. For instance, the OECD is reporting the economy is "fragile" but recovery is in sight. The IMF's John Lipsky has also given indications that the economic downturn is bottoming out, but is beginning recovery. (See Lipsky remarks "Moving Beyond the Crisis"). All indications are, though, that recovery will take some time. See also, Fed Sees Signs of Hope. Moreover, substantial changes to the business and financial environments will need to change.- JSM
June 25, 3:24 AM / Commercial Law / Congrats to LSU for winning the College World Series
So the tag line is not commercial, but so that the content isn't completely irrelevant, here is an interesting story that was on MSNBC about LSU fans spending money (helping the economy) in Omaha. Now that that's out of the way — Congratulations to my alma mater the No. 1 LSU Tigers for Beating TEXAS for the College Baseball National Championship. Geaux Tigers!Picture from ESPN front page.Marc (MLR)
June 24, 10:15 PM / Jurisdynamics / Governor Mark Sanford faces the music
In a genuinely remarkable pieces of American political theater, Governor Mark Sanford of South Carolina admitted that he had not in fact taken a hike on the Appalachian Trail during a five-day absence, but rather conducted an extramarital affair in Argentina. Extensive news coverage abounds, among other places, in The State (Columbia, S.C.), The Washington Post, and The New York Times.
Even more remarkably, Mark Sanford has a theme song. With very few modifications, the lyrics from "Don't Cry for Me Argentina," the climactic song from the Andrew Lloyd Webber/Tim Rice musical, Evita, come very close to describing Governor Sanford's story:
It won't be easy, you'll think it strange
When I try to explain how I feel
that I still need your love after all that I've done
You won't believe me
All you will see is a guv you once knew
Although he's dressed up to the nines
At sixes and sevens with you
I had to let it happen, I had to change
Couldn't stay all my life down at heel
Looking out of the window, staying out of the sun
So I chose freedom
Running around, trying everything new
But nothing impressed me at all
I never expected it to
Chorus:
Don't cry for me Carolina
The truth is I never left you
All through my wild days
My mad existence
I kept my promise
Don't keep your distance
And as for fortune, and as for fame
I never invited them in
Though it seemed to the world they were all I desired
They are illusions
They are not the solutions they promised to be
The answer was here all the time
I love you and hope you love me
Don't cry for me Carolina
Repeat chorus
Have I said too much?
There's nothing more I can think of to say to you.
But all you have to do is look at me to know
That every word is true
June 23, 9:28 PM / Agricultural Law / North Dakota District Court Upholds North Dakota Statutes Restricting Entity Use in Production AgThe opinion can be accessed here.
I've not yet had the chance to parse the reasoning, but I'll try to in due course. My initial thought is that the trial court does not distinguish the Jones case's "facial discrimination" reasoning. North Dakota's language is different, but I don't think those differences would be relevant to the 8th Circuit, unless North Dakota can make some further arguments about the geographical implications of complying with its law. I explain this in an article that is forthcoming in the Drake Journal of Agricultural Law: Corporate Farming Restrictions in a Post-Jones World.
June 23, 9:27 PM / Agricultural Law / May and June Agricultural News Items from Nebraska
June 23, 6:13 PM / Commercial Law / President Obama Announces Financial Regulation ReformA couple of days late, but better than never! Obama hits all from consumer and financial institution overreaching to the lack of proper regulatory oversight. Obviously, leading to the current financial crisis. Where to go from this mess? Overhaul the financial regulatory system, of course. The biggest challenge is Obama's concept of encouraging innovation while guarding against risk. Easier said than done. We've found ourselves relatively effective at addressing past and current crises. The greater challenge, though, is foreseeing the next crisis around the corner. Particularly any crisis that threatens the "forest" as Obama refers to the financial system as a whole. The increased authority proposed for the Federal Reserve is sure to meet some industry resistance at a time when banks are attempting to escape government oversight by repaying TARP funds (see repayments by JP Morgan, American Express, Goldman Sachs, State Street). The elimination of the Office of Thrift Supervision in exchange for direct Federal Reserve involvement is sure to raise the ire of banking groups (see Financial Services Forum "Lobbyists Dig In As Obama Pushes Financial Overhaul").Importantly, Obama plans the creation of a consumer watchdog. Long overdue, but we will need to wait to see the details. The authority granted this agency will be key to its effectiveness in a government system with established players . . . and established lobbyists. As a concept, I am all for it.-JSM
June 23, 5:11 AM / Jurisdynamics / Neda ندا : In life apolitical, in death a symbol of resistance
June 22, 8:39 PM / MoneyLaw / Moneyball: The MovieDetails here.
June 22, 4:13 AM / Commercial Law / $1.9 Million Verdict for Illegal Music DownloadsFriday's news saw the announcement of a $1.9 million verdict against Jammie Thomas-Rasset, a Minnesota mother of four, for illegal music downloads. The woman swapped songs on the Kazaa Internet network. Vivendi S.A. and other music vendors brought the case over 24 specific songs. The federal jury awarded $80,000 per song, for songs including “Iris” by the Goo Goo Dolls and “Welcome to the Jungle” by Guns ‘n Roses. The music companies claim that sales have declined not just because of bootleg CD's, but also due to illegal downloads. Apparently, the jury agreed. The Thomas-Rasset is the first of many similar cases to go to trial. The first trial in the Thomas-Rasset resulted in a verdict of $220,000, but was retried due to faulty jury instructions. The size of the second verdict is sure to be a contentious issue.
Does this case have longer term implications for music sharers? Does this send a message to people who think that they will not get caught? The Recording Industry Association of America is concerned not only with illegal downloading, but also with protection of intellectual property worldwide. The Congressional International Anti-Piracy Caucus put together a 2009 Caucus "Watch List" of countries with serious copyright piracy that includes China, Russia, Canada, Spain and Mexico. Surely, in tough economic times, all business sectors are more apt to "circle the wagons" to protect their income stream to the greatest extent possible. Copyright violations have been a hot spot for some time now, with many believing that it is not stealing at or at least not bad stealing.
There seem to be two possible outcomes. First, lack of protection may stifle creativity and innovation resulting in fewer works because there is not sufficient money to be made. That is, artists may just decide to do something else. Second, the cost paid for copyrighted materials by those who pay rather than dowload at "no cost" may increase to subsidize the "free riders" such as Thomas-Rasset. Like any regulatory system, there must be a sufficient enforcement mechanism to catch those who violate the rules or least substantially violate the rules. So long as consumers believe that there is no likely penalty for illegal downloads and piracy, the RIAA will have a busy time litigating.-JSM
June 22, 2:06 AM / MoneyLaw / Bill Gleason: Excellence within our means
Bill Gleason of the University of Minnesota is the author of The Periodic Table and The Periodic Table, Too. He is an impassioned advocate for access, value, and integrity in higher education and — this must be said in the interest of full disclosure — an on-the-record fan of MoneyLaw. And again for the record, MoneyLaw is a big fan of Bill Gleason.
Bill addressed the University of Minnesota's Board of Regents at an open forum on June 17, 2009. UMN president Robert Bruininks was in the audience. His comments, styled as "Excellence with our means," warrant close attention by anyone who cares about the academic and economic priorities of public universities in a time of retrenchment and recession. I am pleased to rebroadcast Bill's remarks and to republish a transcript of his remarks:Click on the image of Bill Gleason to read the transcript of his remarks:
Thirty five years ago, as a new Minnesota Ph.D., I went down to Carleton to start my teaching career. The chemistry laboratory facilities were, at that time, much worse than those in the state's high schools. And yet Carleton, today, is widely acknowledged as one of the best institutions of its kind.
There is a lesson here that I have never forgotten: People, not buildings, are what makes an institution excellent.
An imperfect acknowledgment of this idea is our administration's use of the phrase “human capital.”
Along with reminding me of my old lesson about the primacy of people, this phrase reminds us all of the old caution to pay attention to what people do, much more than to what they say.
In the matter of the Bell Museum, the new biomedical research buildings, MoreU Park, and modification of the Regents scholarship program, the administration asks sacrifices of us. It also asks people to anticipate the possible loss of 1200 jobs. But while it asks others to make sacrifices, the administration doesn't make its own. A salary freeze at the level of $750K is not the same sort of sacrifice as that made by a person earning less than ten percent of this amount and ultimately losing his or her job.
We all wish the best for our university. But many of us disagree with the current priorities of the administration and have been saying so for quite some time. This administration has ignored those who do not subscribe to the goal of being one of the top three public research universities in the world.
People who think that we should be one of the best universities in the Big Ten have been called “doubters” by our president. This is disturbing.
The following words are addressed directly and respectfully to the Regents.
Your desire to support President Bruininks is admirable. But some things that I have witnessed at Board meetings over the past few years lead me to believe that more skepticism about the administration's priorities is in order. Signs of this skepticism have begun to emerge.
Last year some of the Regents dared suggest that perhaps there should be no alcohol in the stadium. I think they were right, but they were browbeaten by the stadium's strongest proponent.
One of the Regents has recently argued that cuts to employee tuition reimbursement are inappropriate.
Regent Larson pointed out last December that requesting a budgetary increase that included a new Bell Museum was a mistake in the current economic situation.
I hope the Regents will be sensitive to the charges of elitism or arrogance that can readily be made for inappropriate financial requests to the state legislature.
We share a common goal — an excellent university. But our priorities should recognize the primary importance of people as fundamental to our land grant mission. Our fellow citizens must be convinced that this is so. Only then will we be able make our shared goal of excellence a reality.
Thank you for the opportunity to make this statement.
June 21, 9:52 PM / Agricultural Law / Food, Inc.
A new documentary, Food, Inc., takes aim at "our nation's food industry" with particular emphasis on "exposing the highly mechanized underbelly that has been hidden from the American consumer with the consent of our government's regulatory agencies, USDA and FDA."
In a New York Times column called "Lettuce from the garden, with worms," Nicholas D. Kristof comments on Food, Inc. and the agricultural system depicted in that film: "More broadly, it has become clear that the same factors that impelled me toward factory-produced meat and vegetables — cheap, predictable food — also resulted in a profoundly unhealthy American diet." In criticizing "America’s health care system," Kristof believes that "one reason for our health problems is our industrialized agriculture system."
Herewith the preview of a movie that berates "bigger-breasted chickens, the perfect pork chop, insecticide-resistant soybean seeds, even tomatoes that won't go bad" as part of a system that yields "new strains of E. coli" responsible for "illness for an estimated 73,000 Americans annually" and that is associated with "widespread obesity, particularly among children, and an epidemic level of diabetes among adults."
June 21, 8:54 PM / Ratio Juris / Neda نداThis video is as compelling as it is graphic:
In death she is being called Neda ندا, which in Farsi means the voice or the call.
June 21, 12:42 PM / Commercial Law / The Credit Card Fair Fee Bill is Back
Having tackled the cardholder side of the credit card business last month by enacting the Credit Card Holders Bill of Rights, Congress has gone back to its other piece of unfinished card legislation, the Fair Fee Act. This bill deals with the fees that merchants pay to accept credit cards.
Last August, the House Judiciary Committee approved a version of this bill, but like the consumer-oriented bill of rights, the merchant-fee legislation got lost in the financial crisis shuffle. It is now front and certain again. Inexplicably to me, however, the new version, like last year's, advances the notion that credit card merchant fees can be controlled by giving merchants a "seat at the table" and putting a Department of Justice, Antitrust Division, lawyer there as well. I am quite skeptical about whether this approach would be successful. To be sure, merchants complain that inter-change fees are currently non-negotiable. They are presented to merchants by the Visa and MasterCard systems on a take it or leave it basis. Of course, merchants have always been free to "leave it," and the card systems have had to take that possibility into account in setting the fees. Giving the merchants a seat at the table will not change the dynamic. The merchants sole bargaining chip will remain the right to refuse to accept the card. But if card systems know now that merchants cannot say no, it is hard to image how merchants will be able to convince them otherwise just because they have a seat at the table.
The legislation does provide for antitrust immunity to both card issuers and merchants that negotiate collectively. It would thereby bless the long standing practice of issuers in the Visa and MasterCard systems of collectively imposing their merchant fees. For someone who believes as I do that the remedy for anticompetitive interchange fees is more competition, explicitly permitting collective fee setting seems like a very bad idea. And for the merchants' part, although collective negotiations might enable them to more credibly threaten not to accept a particular card brand, the legislation exempts group boycotts from the scope of the antitrust immunity. Would a group of merchants in a negotiation under the proposed act engage in an unlawful group boycott if they collectively threatened to stop accepting Visa? The legislation does not make this clear, but it is hard to see how such a collective threat would not constitute a boycott.
Another way in which the legislation might be thought to help merchants is that it mandates that all merchants participating in a negotiation are entitled to the same fee rate regardless of the merchant category in which the card system had previously placed those merchants. One might image a negotiation including Walmart and many smaller retailers in which the small retailers would end up with the same rate as Walmart. But what incentive would Walmart have to join such a negotiation? Walmart already has enough clout to force the card systems to give it a reduced fee, and that fee constitutes a competitive advantage over other retailers that Walmart would be loath to give up.
The legislation originally proposed by Congressman Conyers in the spring 2008 would have set up an interchange court to set fees if the merchant/card system negotiation reached an impasse. The fee court was stripped from the legislation passed by the House Committee last summer to attract sufficient votes for committee passage, and it has remained out of the House bill that Conyers introduced in early June.
Senator Durbin, however, has now introduced a new Senate Bill that brings back the idea of a fee court to set interchange fees when merchants and card systems fail to agree. The process would resemble an arbitration proceeding before a panel of judges appointed by antitrust enforcers at the DOJ and FTC. If the merchants and card systems could not reach agreement, a hearing would be held at which both sides could present evidence and argument about a fair fee level. The panel would then set the fee, which would remain fixed for three years.
One could reasonably oppose the fee court on at least two grounds. First, the court would have insufficient information and expertise to set appropriate fees, and second, it would likely be subject to undue influence by the regulated parties just like the rate setting bodies of old. But at least the threat of an imposed fee might lead the card systems to try to reach agreement with the merchants.
The bill is likely to face fierce lobbying opposition from card systems and issuers, large and small. Credit Union National Association Senior Vice President of Legislative Affairs John Magill summed up the issuers argument this way: "The merchants' effort to avoid paying their fair share of electronic transactions threatens the integrity of the payment processing system."
I continue to wonder why Congress does not simply require the largest card issuers to negotiate their own interchange fees. That is, force Citi, Chase, Capital One, and a few of the other large issuers to set their own fees. Merchants could then much more credibly threaten to drop a card, because they could single out one issuer as opposed to dropping out of Visa or MasterCard, entirely. To be sure, this approach would differentiate among issuers by allowing some to set fees collectively through Visa and MasterCard, while others would have to compete individually. But the discrimination makes sense in that the large issuers create the market power in Visa and MasterCard that has allowed them to increase merchant fees so dramatically in the past. If the largest issuers were stripped out, Visa and MasterCard could continue to set merchant fees for their many small issuers without the sort of anticompetitive clout that they now wield. Moreover, the House Bill exempts small issuers from the mandatory negotiation proceedings, thus recognizing that it is appropriate to treat small and large card issuers differently.
June 21, 1:25 AM / Agricultural Law / Agricultural Law authors on Twitter
Inspired by Susan Schneider's implementation of her Twitter account into her agricultural law LL.M. blog, I've blended Susan's Twitter updates with my own into an RSS feed called Agricultural Law Authors on Twitter. The result is a box in the sidebar of this blog that blends Twitter posts by — and about — AgLawLLM and J.C. Redbird.
For more information on Twitter and why you should take part in this social networking revolution, see The Cardinal Lawyer.
June 20, 10:18 PM / Ratio Juris / Islamic Studies: A BibliographyThis bibliography for Islamic Studies is the last of our compilations covering religious worldviews in the Directed Reading series. We thus have bibliographies for Hinduism, Classical Chinese Worldviews, Buddhism, Judaism, Christianity, and Islam here at Ratio Juris. The length of the latest list is owing to an ardent professional and personal interest in Islamic Studies, particularly Islamic philosophy and theology, Islamic mysticism (Sufism), and Islamic art and architecture. The fact that I can speak of a "professional interest" in this subject is owing largely to the remarkable generosity, kindness and guidance of Oliver Leaman, Professor of Philosophy and Zantker Professor of Judaic Studies at the University of Kentucky. Oliver Leaman is a prolific philosopher, both within Judaic and Islamic philosophy and outside his areas of specialization (e.g., books on death and dying, in film studies, and on friendship), having written or edited some two dozen works of the highest caliber. I want to avail myself of this forum to thank him publicly for giving me the opportunity to publish in this field, beginning with an invitation to contribute to a groundbreaking work in the discipline, namely, the two volume Biographical Encyclopedia of Islamic Philosophy (2006).
June 19, 6:23 PM / Agricultural Law / Jasmonic Acid Treatment on SeedsThe researchers found that dipping seeds in jasmonic acid would kickstart a plant's natural defenses against pests. Jasmonic acid, which is produced by plant leaves when attacked by insects, is known to help defend plants when it's sprayed on crops. However, spraying the acid tends to reduce plant growth, while dipping seeds in the acid doesn't create that side effect, the researchers said.
The CleanTech Forum from Boston, Massachusetts recently reported on a new technology that may protect crops from pests. New UK Tech Protects Crops Without Genetic Modification, written by Emma Ritch reports that Becker Underwood has licensed a seed protection technology that involves dipping seeds in a substance called jasmonic acid. The article reports that :
Early tests showed an 80 percent reduction in red spider mite attacks on tomato plants, 70 percent decrease in damage to sweet peppers by aphids, and 38 percent reduction in caterpillar attacks on maize. Becker then conducted large-scale trials in the U.S. that showed similar promise.The technology is drawing attention in Europe in particular because it does not involve genetic modification.
June 19, 12:43 PM / Ratio Juris / How Do We Treat Our Veterans?Early this morning, unable to sleep, I watched this video broadcast on our local community television. Aaron Glantz is the author of How America Lost Iraq (2005), and the subject of this talk is his latest book, The War Comes Home: Washington's Battle Against America's Veterans (2009). This lecture was sponsored by the Walter H. Capps Center for the Study of Ethics, Religion and Public Life at the University of Califiornia, Santa Barbara. Please view the podcast, but in any case, consider the book absolutely essential reading, part of one's myriad civic obligations.
June 17, 0:43 AM / Ratio Juris / Islam & Constitutionalism: A Modest IntroductionMinimally, constitutionalism means government can and should be legally limited in its powers, and that authority is derived from and depends upon those limitations. Such constitutionalism, in principle when not in practice, is part and parcel of Islamic history. Indeed, in this minimal sense, all nation-states are “constitutional” states. In the Muslim world today, however, the baseline for discussion is liberal and, therefore, democratic constitutionalism, including the exemplary relevance of the archetype of Islamic constitutionalism: namely, the Charter of Medina, Muhammad’s compact with the Muslim and Jewish communities that constituted the first Islamic polity.
Sociologically speaking, a constitution is a “co-ordinating convention” that establishes “self-regulating” institutions that both “enable” and “constrain” democratic behavior (indeed, the ‘enabling’ function of ‘constraints’ is well explained by Stephen Holmes in Passions and Constraints: On the Theory of Liberal Democracy, 1995). As Russell Hardin has made clear, social contract theories or analogies invoked to explain the mechanisms of constitutional construction are misleading inasmuch as “agreement” or “tacit consent” is not a condition for accepting the constitutional order; mere acquiescence will suffice (cf. the response of the anti-Federalists to the U.S. Constitution). This renders the conception of “popular sovereignty” a fictional rhetorical contrivance or metaphor which, in turn, has important consequences for Islamic political theory: one oft-cited reason for Muslim hostility to liberal constitutionalism is the notion of popular sovereignty, seen as infringing upon or contradicting the sovereignty that properly belongs to God. In any case, the doctrine of sovereignty as such has never had the “absolutist” implications sometimes imputed to it and thus should not be construed as contradicting the sovereignty of God. A democratic political and/or legal notion of sovereignty can play a role in constitutionalism if the Islamic conception of God’s conferral of “vice-regency” implies some sort of individual sovereignty. Here sovereignty (in a distributive sense) entails according man theological/metaphysical freedom (e.g., free will), which is logically prior to any notion of rights/liberties set forth in a constitution. The citizen-sovereign in a democracy—through delegation or representation—would thus make the laws, be bound by those laws, and yet somehow remain “above” the law: in acts of civil disobedience, in amending or reforming the constitution, or in a constitutional revolution. Conceding this account, the literal reading of popular sovereignty (in a collective sense) commits the (informal) logical fallacy of composition.
Among the criteria for a liberal constitution are limits on majority decision-making; recognition of human and civil (and increasingly, social and economic) rights (liberties); an independent and impartial judiciary to guarantee and protect these rights (including judicial review); and separation of executive, legislative and judicial powers. And among the concepts within the Islamic tradition suggestive of or compatible with constitutionalism are shūrā (consultation), ijmā‘ (consensus), ijtihād (as independent legal reasoning), maslahah (public welfare), majlis (tribal council; public audience granted the caliph), bay‘ah (an unwritten contract or pact involving the recognition of, and allegiance to, political authority), and wilāyah (custodianship, guardianship, trusteeship).
In the 19th century Ottoman Empire, Egypt and Tunisia, constitutions were honored in the breach. Autocracy, patrimonialism, tribalism, and colonialism have left their indelible marks on periodic and protracted efforts at liberal reform and the democratic aspirations of Muslims. In the second half of the 20th century, socialist and nationalist ideologies were added to the mix. That said, and keeping the Islamic Middle East and North Africa in mind, one can endorse Noah Feldman’s remark “that the world is littered with beautifully drafted constitutions that have been ineffective or ignored in practice.” The Iranian Constitutional Revolution (1905-11) prefigured much of the potential and some of the problems that were to attend later democratic experiments, most conspicuously, the Iranian Revolution of 1978-79. The Constitution of the Islamic Republic of Iran contains ostensibly democratic features: in Malise Ruthven’s words, it is a “hybrid of Islamic and western liberal concepts.” But Ayatollah Khomeini’s conception of the “guardianship of the jurist” (vilayāt-i faqī) ensconced in the Constitution by way of the “chief jurisconsult” and the 12-member Council of Guardians, has blocked democratic methods and processes, enshrining an insidious form of religious authoritarianism. Feldman contends the constitutional monarchies of Jordan and Morocco “represent the best hope for development of Islamic democracy in the Arab world.” The machinations of the military in Pakistan, Algeria, and--less frequently and less confidently--in Turkey, can make mincemeat of constitutional law; nonetheless, Turkey is rightly described as an “emerging democracy.” The constitutional monarchy of Malaysia is betwixt and between authoritarianism and democracy, while Indonesia’s democratic evolution has relied on well-crafted and well-timed constitutional reform.
Constitution-making has been taking place in Iraq, Afghanistan, and in the Palestinian occupied territories courtesy of the Palestinian National Authority. With regard to the latter, after enacting the proto-constitutional and provisional Basic Law, a constitutional committee has completed its third draft [when this was first written] of the Constitution for an independent and sovereign Palestinian State (subject to further amendments). Islam is declared the official religion of the future Palestinian State, while the Constitution guarantees “equality in rights and duties to all citizens irrespective of their religious beliefs.” The “principles” of “Islamic sharī‘ah” are termed “a major source of legislation;” perhaps not unlike the way in which principle(s) of Natural Law have functioned in some Western constitutions.
Further Reading:
- Amanat, Abbas and Frank Griffel, eds. Shari‘a: Islamic Law in the Contemporary Context (Stanford, CA: Stanford University Press, 2007)
- An-Na‘im, Abdullahi Ahmed. Islam and the Secular State (Cambridge, MA: Harvard University Press, 2008)
- Bayat, Asef. Making Islam Democratic: Social Movements and the Post-Islamist Turn (Stanford, CA: Stanford University Press, 2007)
- Black, Antony. The History of Islamic Political Thought: From the Prophet to the Present (New York: Routledge, 2001)
- Black, Antony. The West and Islam: Religion and Political Thought in World History (New York: Oxford University Press, 2008)
- El Fadl, Khaled Abou. Speaking in God’s Name: Islamic Law, Authority and Women (Oxford, England: Oneworld, 2001)
- El Fadl, Khaled Abou. et al., Islam and the Challenge of Democracy (Princeton, NJ: Princeton University Press, 2004)
- Enayat, Hamid. Modern Islamic Political Thought (Austin, TX: University of Texas Press, 1982)
- Dahl, Robert A., Ian Shapiro and José Antonio Chiebub, eds. The Democracy Sourcebook (Cambridge, Mass., MIT Press, 2003)
- Esposito, John L. and John O. Voll. Islam and Democracy (New York: Oxford University Press, 1996)
- Fadel, Mohammad. “Public Reason as a Strategy for Principled Reconciliation: The Case of Islamic Law and International Human Rights,” Chicago Journal of International Law, Vol. 8, No. 1, p. 1, 2008; University of Toronto, Legal Studies Research Paper No. 981777. Available: http://ssrn.com/abstract=981777
- Fadel, Mohammad. “The True, the Good and the Reasonable: The Theological and Ethical Roots of Public Reason in Islamic Law,” Canadian Journal of Law and Jurisprudence, Vol. 21, No. 1, 2008; Islamic Law and Law of the Muslim World Paper No. 08-08; University of Toronto, Legal Studies Research Paper No. 977206. Available: http://ssrn.com/abstract=1085347
- Feldman, Noah. After Jihad: America and the Struggle for Islamic Democracy (New York: Farrar, Straus and Giroux, 2003)
- Hamoudi, Haider Ala. “Baghdad Booksellers, Basra Carpet Merchants, and the Law of God and Man: Legal Pluralism and the Contemporary Muslim Experience,” Berkeley Journal of Middle Eastern and Islamic Law (Inaugural Issue), Vol. 1, No. 1, 2008; University of Pittsburgh Legal Studies Research Paper No. 2008-14; Islamic Law and Law of the Muslim World Research Paper Series at New York Law School 08-26. Available: http://ssrn.com/abstract=1128293
- Hardin, Russell. Liberalism, Constitutionalism, and Democracy (Oxford, UK: Oxford University Press, 1999)
- Holmes, Stephen. Passions and Constraints: On the Theory of Liberal Democracy (Chicago, IL: University of Chicago Press, 1995)
- Kamali, Mohammad Hashim. Shari‘ah Law: An Introduction (Oxford, England: Oneworld, 2008)
- Mayer, Ann Elizabeth. Islam and Human Rights: Tradition and Politics (Boulder, CO: Westview Press, 4th ed., 2007)
- Sabet, Amr G.E. Islam and the Political: Theory, Governance and International Relations (London: Pluto Press, 2008)
- Vikor, Knut S. Between God and the Sultan: A History of Islamic Law (New York: Oxford University Press, 2005)
- Wing, Adrien K. “The Palestinian Basic Law: Embryonic Constitutionalism,” 31 Case Western Reserve Journal of International Law 383 (1999)
- Wing, Adrien K. and Hisham A. Kassim. "Hamas, Constitutionalism, and Palestinian Women,” University of Iowa Legal Studies Research Paper No. 08-21; Howard Law Journal, Vol. 50, No. 2, 2007. Available: http://ssrn.com/abstract=1130219
- Wing, Adrien K. and Hisham A. Kassim, “The Future of Palestinian Women's Rights: Lessons from a Half-Century of Tunisian Progress,” University of Iowa Legal Studies Research Paper No. 08-22; Washington and Lee Law Review, Vol. 64, 2007; Islamic Law and Law of the Muslim World Paper No. 08-40. Available at SSRN: http://ssrn.com/abstract=1130413
- Wing, Adrien K. and Varol, Ozan O. “Is Secularism Possible in a Majority-Muslim Country?: The Turkish Example,” University of Iowa Legal Studies Research Paper No. 08-17; Texas International Law Journal, Vol. 42, No. 1, 2007; Islamic Law and Law of the Muslim World Paper No. 08-33. Available at SSRN: http://ssrn.com/abstract=1130262
June 16, 11:37 PM / Jurisdynamics / Feudalism Unmodified / Something Blue
Feudalism Unmodified: Discourses on Farms and Firms, 45 Drake L. Rev. 361 (1997) (with Edward S. Adams):
The regulation of market structure and industrial organization often restricts firms whose size and scope favor sharp distinctions between labor, management, and capital. The epithet feudalism embodies the fears urging rigid structural regulation. This article examines the regulation of feudalism in its native setting, the farm. This article then studies the law's assault on industrial feudalism: anti-takeover statutes.
To advocates of free enterprise, feudalism unmodified is a battle cry. But feudalism unmodified also describes the dismal condition of capitalism and its discontents. Those who would protect small farms and firms lament the failure of structural regulation. Feudalism endures, unmodified.Something Old, Something New, Something Borrowed, Something Blue, 58 U. Chi. L. Rev. 1527 (1991) (reviewing The Bluebook: A Uniform System of Citation (15th ed. 1991)):
The Bluebook has transcended its role as a legal citation manual. As the citation manual for law reviews at Harvard, Yale, Columbia, and Penn, the Bluebook acts as the contract, combination, or conspiracy in restraint of trade that keeps its publishers solvent. As the condensed expression of the familial relationship between legal academia and student-edited law reviews, the Bluebook represents the prenuptial contract between the professors and the journals. Finally, as the unofficial Uniform Citation Code, the Bluebook is a legislative waste dump for pent-up frustrations in citation politics.
June 16, 7:40 AM / Ratio Juris / Muslims & Democracy: A Précis
Historically, an Islamic rhetorical idiom has legitimated many a manner of governance: from the despotic to the benign. And the bountiful intellectual fruits of Islamic traditions—philosophical, theological, jurisprudential, mystical—are capable of justifying a wide array of political models and forms of political behavior, including models and forms of democratic provenance. Professors, pundits, policy makers, and the public in their wake, have argued or assumed that Islam and democracy are inherently incompatible, that cultural and political properties intrinsic to Islamic civilization preclude the birth of anything remotely resembling “Islamic democracy.” Yet empirical studies conclude that such culturalist explanations “have little relevance for the emergence and durability of democracies.” (Przeworski, et al., in Dahl, Shapiro, Cheibub, eds.)
Today a clarion call from Muslims around the world is heard on behalf of the virtues of democratic values and principles, methods and processes. The overwhelming preference of the “Arab street” and the majority of non-Arabic Muslims is for ballots (‘paper stones’) not bullets, as militant, jihadist Muslims prove the exception to the rule. In short, Islamic democracy is not an oxymoron.
Minimalist or thin theories of democracy focus on the electoral components of the democratic process, the desiderata being free and fair, multiparty elections by secret and universal ballot. An electoral democracy is a constitutional order in which the (chief) executive and legislative offices are filled through regular and competitive elections. In Przeworski’s words, “In the end, the miracle of democracy is that conflicting political forces obey the results of voting.” By these standards, for example, Turkey, Bangladesh, and Indonesia are democratic, as are several states of the former Soviet Union; Egypt and Malaysia are quasi- or semi-democratic; Jordan and Morocco democratic by fits and starts; Algeria has democratic pretensions, as does Kuwait and Bahrain; interestingly, Iran also scores high on this electoral scorecard. Even Saudi Arabia is unable to resist the reformist clamor for electoral democracy: the Kingdom’s cabinet has announced that it will hold its first elections for municipal councils. As various fora of dialogue or “talking shops” are essential forms of democratic participation, the fact that the Saudi leaders (in particular, the Crown Prince Abdallah, de facto ruler of the kingdom), are talking about reform with “reform groups” perhaps portends changes on the desert horizon, however distant.
Problems persist: executive offices are often uncontested; opposition parties face unwarranted if not unreasonable government restrictions (and not a few parties are ‘banned’ for this or that reason), with often limited access to media. In addition to voting fraud, authoritarian elites do not hesitate to resort to insidious forms of “electoral engineering” to achieve favorable electoral outcomes. In this case, the maxim “something is better than nothing” holds. Perchance international election monitoring can play a more effective part in preventing or discouraging attempts at electoral manipulation.
As a consequence of electoral participation, some of the more militant Salafi Islamists have formed alliances and coalitions with both Islamic and “secularist” parties and movements, often renouncing the methods of violence in ending the campaign for an “Islamic revolution.” Denying Islamists participation in electoral politics can have deleterious results: as in Algeria, when the Islamic Salvation Front (FIS) resorted to rebellion and violence; other times it simply compels Islamist to engage in the politics of civil society, as with the Muslim Brotherhood in Egypt. Islamist parties demonstrating a commitment to democratic principles and procedures—i.e., to play by the “rules of the game”—are found, for example, in Tunisia, Algeria, Morocco, Egypt, Palestine, Jordan, Lebanon, Turkey, Malaysia, and Indonesia, as well in most of the republics of the former Soviet Union. Indeed, both Hamas and Hezbollah have evidenced a substantial preference for and appreciation of the value of democratic political participation
The growth and consolidation of democracy in the Islamic world faces enormous obstacles: authoritarian political traditions and communalist orientations (including recalcitrant ‘ulamā’ with medievalist responses to the conditions of modernity); histories of colonialist rule and imperialist interference; the need to implement economic reforms by way of integration into the global economy; by-products of nationalist struggles that lacked democratic priorities; economically bloated and inefficient States with excessive military expenditures; to list the more egregious difficulties. Fortunately, the level of economic development provides little information about the chances of transition to democracy, although per capita income does correlate with the sustainability of democratic regimes. And political economists and democratic theorists alike well know that rentier states pose peculiar problems for democratic development. Of course “thick,” more substantive participatory and deliberative democratic theories elaborate a motley of social and institutional conditions that serve as prerequisites of, or that are at least conducive to, full-fledged democratic consolidation and flourishing. When or if the variegated potential forms of Islamic democracy do develop, the corresponding criteria of assessment will be more stringent, and the eudaimonistic consequences more satisfying, than the “thin” electoral variety.Further Reading:Asef Bayat, Making Islam Democratic: Social Movements and the Post-Islamist Turn (Stanford, CA: Stanford University Press, 2007); Robert A. Dahl, Ian Shapiro and José Antonio Chiebub, eds., The Democracy Sourcebook (Cambridge, MA: MIT Press, 2003); John L. Esposito and John O.Voll, Islam and Democracy (New York: Oxford University Press, 1996); Noah Feldman, After Jihad: America and the Struggle for Islamic Democracy (New York: Farrar, Straus and Giroux, 2003); James Piscatori, “Islam, Islamists, and the Electoral Principle in the Middle East” (Leiden, The Netherlands: International Institute for the Study of Islam in the Modern World [ISIM], 2000); and Khaled Abou El Fadl, “Islam and the Challenge of Democracy,” Boston Review, April/May 2003.A slightly different version of the above appeared in Juan E. Campo, ed., Encyclopedia of Islam. New York: Checkmark Books, 2009.
June 16, 5:24 AM / Ratio Juris / Iran: Toward an Understanding of Contemporary Events
Inspired by Dean Jim Chen's post, Tehran, June 15, 2009, I thought I would provide a list of books that enable one to better understand contemporary events, if only by placing them in socio-political context and historical perspective.
Portraits of armed Baluchis, Turks and Persians involved in the constitutional revolution in Persia, c.1905-09, the declaration of the deposition of Shah Muhammad Ali, and guns on the streets of Mashhad. [shelfmark:Photo 851/4(91)] © The British Library Board.
- Abdo, Geneive and Jonathan Lyons. Answering Only to God: Faith and Freedom in Twenty-First Century Iran. New York: Henry Holt & Co., 2003.
- Abrahamian, Ervand. Iran Between Two Revolutions. Princeton, NJ: Princeton University Press, 1982.
- Abrahamian, Ervand. The Iranian Mojahedin. New Haven, CT: Yale University Press, 1989.
- Abrahamian, Ervand. Khomeinism: Essays on the Islamic Republic. Berkeley, CA: University of California Press, 1993.
- Abrahamian, Ervand. Tortured Confessions: Prisons and Public Recantations in Modern Iran. Berkeley, CA: University of California Press, 1999.
- Adelkhah, Fariba. Being Modern in Iran. New York: Columbia University Press, 2000.
- Afary, Janet. The Iranian Constitutional Revolution, 1906-1911. New York: Columbia University Press, 1996.
- Afkhami, Mahnaz and Erika Friedl, eds. In the Eye of the Storm: Women in Post-Revolutionary Iran. Syracuse, NY: Syracuse University Press, 1994.
- Afshari, Reza. Human Rights in Iran: The Abuse of Cultural Relativism. Philadelphia, PA: University of Pennsylvania Press, 2001.
- Akhavi, Shahrough. Religion and Politics in Contemporary Iran: Clergy-State Relations in the Pahlavi Period. Albany, NY: State University of New York Press, 1980.
- Algar, Hamid. The Islamic Revolution in Iran. London: Open Press, 1980.
- Algar, Hamid. Religion and State in Iran 1785-1906: The Role of the Ulama in the Qajar Period. Berkeley, CA: University of California Press, 1969.
- Alizadeh, Parvin, ed. The Economy of Iran: The Dilemma of an Islamic State. London: I.B. Tauris, 2000.
- Ansari, Ali M. Iran, Islam, and Democracy: The Politics of Managing Change. London: Chatham House, 2nd ed., 2006.
- Ansari, Ali M. Modern Iran Since 1921: The Pahlavis and After. London: Longman, 2003.
- Arjomand, Said Amir. The Turban for the Crown: The Islamic Revolution in Iran. Oxford, UK: Oxford University Press, 1988.
- Azimi, Fakhreddin. Iran: the Crisis of Democracy. London: I.B. Tauris, 1989.
- Bakhash, Shaul. The Reign of the Ayatollahs: Iran and the Islamic Revolution. New York: Basic Books, 1990.
- Baktiari, Bahman. Parliamentary Politics in Revolutionary Iran: The Institutionalization of Factional Politics. Gainseville, FL: University Press of Florida, 1996.
- Bayat, Asef. Street Politics: Poor People’s Movements in Iran. New York: Columbia University Press, 1997.
- Bayat, Asef. Workers and Revolution in Iran. London: Zed Books, 1987.
- Bayat, Mangol. Iran’s First Revolution: Shi‘ism and the Constitutional Revolution of 1905-1909. New York: Oxford University Press, 1991.
- Bill, James A. The Eagle and the Lion: The Tragedy of American-Iranian Relations. New Haven, CT: Yale University Press, 1988.
- Bonine, Michael E. and Nikki R. Keddie, eds. Modern Iran: The Dialectics of Continuity and Change. Albany, NY: State University of New York Press, 1981.
- Browne, Edward G. The Persian Revolution, 1905-1909. Cambridge, UK: Cambridge University Press, 1910.
- Chehabi, H.E. Iranian Politics and Religious Modernism: The Liberation Movement of Iran under the Shah and Khomeini. Ithaca, NY: Cornell University Press, 1990.
- Ehteshami, Anoushiravan. After Khomeini: The Iranian Second Republic. New York: Routledge, 1995.
- Esfandiari, Haleh. Reconstructed Lives: Women & Iran’s Islamic Revolution. Baltimore, MD: Johns Hopkins University Press, 1997.
- Farsoun, Samih K. Iran: Political Culture in the Islamic Republic. London: Routledge, 1992.
- Fischer, Michael M.J. Iran: from Religious Dispute to Revolution. Cambridge, MA: Harvard University Press, 1980.
- Foran, John. Fragile Resistance: Social Transformation in Iran from 1500 to the Revolution. Boulder, CO: Westview Press, 1993.
- Foran, John, ed. A Century of Revolution: Social Movements in Iran. Minneapolis, MN: University of Minnesota Press, 1994.
- Ganji, Akbar. The Road to Democracy in Iran. Cambridge, MA: MIT Press, 2008.
- Gasiorowski, Mark. U.S. Foreign Policy and the Shah: Building a Client State in Iran. Ithaca, NY: Cornell University Press, 1991.
- Ghani, Cyrus. Iran and the Rise of Reza Shah: From Qajar Collapse to Pahlavi Power. London: I.B. Tauris, 2000.
- Ghani, Cyrus. Iran and the West: A Critical Bibliography. London: Kegan Paul Int’l., 1987.
- Gheissari, Ali. Iranian Intellectuals in the Twentieth Century. Austin, TX: University of Texas Press, 1998.
- Gheissari, Ali, ed. Contemporary Iran: Economy, Society, Politics. New York: Oxford University Press, 2009.
- Graham, Robert. Iran: the Illusion of Power. London: Croom Helm, revised ed., 1979.
- Hairi, Abdu’l-Hadi. Shī‘ism and Constitutionalism in Iran. Leiden: E.J. Brill, 1977.
- Hooglund, Eric, ed. Twenty Years of Islamic Revolution: Political and Social Transition in Iran since 1979. Syracuse, NY: Syracuse University Press, 2002.
- Irfani, Shuroosh. Revolutionary Islam in Iran: Popular Liberation or Religious Dictatorship? London: Zed Books, 1983.
- Kamrava, Mehran. Iran’s Intellectual Revolution. Cambridge, UK: Cambridge University Press, 2008.
- Katouzian, Homa. Mussadiq and the Struggle for Power in Iran. London: I.B. Tauris, 1991.
- Katouzian, Homa. The Political Economy of Modern Iran. London: Macmillan, 1981.
- Kazemi, Farhad. Poverty and Revolution in Iran: The Migrant Poor, Urban Marginality, and Politics. Washington Square, NY: New York University Press, 1981.
- Keddie, Nikki R. Iran and the Muslim World: Resistance and Revolution. Washington Square, NY: New York University Press, 1995.
- Keddie, Nikki R. Iran: Religion, Politics and Society. London: Frank Cass, 1980.
- Keddie, Nikki R. Religion and Rebellion in Iran: The Tobacco Protest of 1891-1892. London: Frank Cass, 1966.
- Keddie, Nikki R. Roots of Revolution: An Interpretative History of Modern Iran. New Haven, CT: Yale University Press, 1981.
- Keddie, Nikki R. Modern Iran: Roots and Results of Revolution. New Haven, CT: Yale University Press, 2006 ed.
- Keddie, Nikki R., ed. Religion and Politics in Iran: Shi‘ism from Quietism to Revolution. New Haven, CT: Yale University Press, 1983.
- Menashri, David. Post-Revolutionary Politics in Iran: Religion, Society and Power. London: Frank Cass & Co., 2001.
- Milani, Mohsen M. The Making of Iran’s Islamic Revolution: From Monarchy to Islamic Republic. Boulder, CO: Westview Press, revised ed., 1994.
- Mir-Hosseini, Ziba. Islam and Gender: The Religious Debate in Contemporary Iran. Princeton, NJ: Princeton University Press, 1999.
- Mir-Hosseini, Ziba and Richard Tapper. Islam and Democracy in Iran: Eshkevari and the Quest for Reform. London: I.B. Tauris, 2006.
- Moaddel, Mansoor. Class, Politics, and Ideology in the Iranian Revolution. New York: Columbia University Press, 1992.
- Moghissi, Haideh. Populism and Feminism in Iran: Women’s Struggle in a Male-Defined Revolutionary Movement. New York: St. Martin’s Press, 1996.
- Moslem, Mehdi. Factional Politics in Post-Khomeini Iran. Syracuse, NY: Syracuse University Press, 2002.
- Mottahedeh, Roy. The Mantle of the Prophet: Religion and Politics in Iran. Oxford, UK: Oneworld, 2000.
- Nabavi, Negin. Intellectuals and the State in Iran: Politics, Discourse and the Dilemma of Authenticity. Gainesville, FL: University Press of Florida, 2003.
- Nabavi, Negin, ed. Intellectual Trends in 20th Century Iran. Gainesville, FL: University Press of Florida, 2003.
- Paidar, Parvin. Women and the Political Process in Twentieth-Century Iran. Cambridge, UK: Cambridge University Press, 1995.
- Postel, Danny. Reading Legitimation Crisis in Tehran: Iran and the Future of Liberalism. Chicago, IL: Prickly Paradigm Press, 2006.
- Rajaee, Farhang, ed. The Iran-Iraq War: The Politics of Aggression. Gainesville, FL: University Press of Florida, 1993.
- Rejali, Darius M. Torture and Modernity: Self, Society and State in Modern Iran. Boulder, CO: Westview Press, 1993.
- Ringer, Monica M. Education, Religion, and the Discourse of Cultural Reform in Qajar Iran. Costa Mesa, CA: Mazda Publ., 2000.
- Sanasarian, Eliz. The Women’s Rights Movement in Iran: Mutiny, Appeasement, and Repression from 1900 to Khomeini. New York: Praeger, 1982.
- Schirazi, Asghar (John O’Kane, trans.). The Constitution of Iran: Politics and the State in the Islamic Republic. London: I.B. Tauris, 1997.
- Takeyh, Ray. Guardians of the Revolution: Iran and the World in the Age of Ayatollahs. New York: Oxford University Press, 2009.
- Tavakoli-Targhi, Mohamad. Refashioning Iran: Orientalism, Occidentalism and Historiography. New York: Palgrave Macmillan, 2001.
- Vahdat, Farzin. God and Juggernaut: Iran’s Intellectual Encounter with Modernity. Syracuse, NY: Syracuse University Press, 2002.
- van den Bos, Matthijs. Mystic Regimes: Sufism and the State in Iran, from the late Qajar Era to the Islamic Republic. Leiden: E.J. Brill, 2002.
- Wright, Robin. The Last Great Revolution: Turmoil and Transformation in Iran. New York: Vintage Books, 2001.
June 16, 2:18 AM / Jurisdynamics / Tehran, June 15, 2009
Photo: Ben Curtis/Associated Press
June 12, 5:22 PM / Jurisdynamics / Literary Warrant [43]
McSorley's Old Ale House
Read the rest of this post . . .
- Marilyn A. Brown, Frank Southworth & Andrea Sarzynski, Metropolitan Policy Program, Brookings Institution, Shrinking the Carbon Footprint of Metropolitan America (May 2008)
"The nation’s carbon footprint has a distinct geography not well understood or often discussed. This report quantifies transportation and residential carbon emissions for the 100 largest U.S. metropolitan areas, finding that metro area residents have smaller carbon footprints than the average American, although metro footprints vary widely. Residential density and the availability of public transit are important to understanding carbon footprints, as are the carbon intensity of electricity generation, electricity prices, and weather."—Executive Summary.- Oli Brown & Alec Crawford, International Institute for Sustainable Development (IISD), Rising Temperatures, Rising Tensions: Climate Change and the Risk of Violent Conflict in the Middle East (2009)
"In a region already considered the world’s most water scarce and where, in many places, demand for water already outstrips supply, climate models are predicting a hotter, drier and less predictable climate. Higher temperatures and less rainfall will reduce the flow of rivers and streams, slow the rate at which aquifers recharge, progressively raise sea levels and make the entire region more arid.
"These changes will have a series of effects, particularly for agriculture and water management. Under moderate temperature increases, for example, some analysts anticipate that the Euphrates River could shrink by 30 per cent and the Jordan River by 80 per cent by the end of the century.
"This report, prepared by an independent Canadian environment and development research institute, seeks to present a neutral analysis of the security threat of climate change in the region over the next 40 years (to 2050), drawn from consultations and extensive interviews with experts from across the region’s political and ethnic divides."—Summary.
- Jean-Marc Burniaux et al., Organisation for Economic Co-operation and Development (OECD), The Economics of Climate Change Mitigation: How to Build the Necessary Global Action in a Cost-Effective Manner (Economics Department Working Papers no. 701) (ECO/WKP(2009)42) (June 5, 2009)
"This paper examines the cost of a range of national, regional and global mitigation policies and the corresponding incentives for countries to participate in ambitious international mitigation actions. The paper illustrates the scope for available instruments to strengthen these incentives and discusses ways to overcome barriers to the development of an international carbon price, based on the quantitative assessment from two global and sectorially-disaggregated CGE models. Key step towards the emergence of a single international carbon price will most likely involve the phasing out of subsidies of fossil fuel consumption and various forms of linking between regional carbon markets, ranging from direct linking of existing emission trading systems to more indirect forms through the use of crediting mechanisms. The paper discusses regulatory issues raised by the expansion of emission trading and crediting schemes as well as the complementary contribution of R&D policies. Finally, the paper emphasises the importance of incorporating deforestation into a global agreement as well as the key role of international transfers, not least to overcome the relatively strong economic incentives in some countries to free ride on other regions mitigation actions."—Abstract.- Mikhail V. Chester & Arpad Horvath, Department of Civil and Environmental Engineering, University of California, Berkeley, Environmental Assessment of Passenger Transportation Should Include Infrastructure and Supply Chains, Environmental Research Letters, v.4 (doi:10.1088/1748-9326/4/2/024008) (2009)
"To appropriately mitigate environmental impacts from transportation, it is necessary for decision makers to consider the life-cycle energy use and emissions. Most current decision-making relies on analysis at the tailpipe, ignoring vehicle production, infrastructure provision, and fuel production required for support. We present results of a comprehensive life-cycle energy, greenhouse gas emissions, and selected criteria air pollutant emissions inventory for automobiles, buses, trains, and airplanes in the US, including vehicles, infrastructure, fuel production, and supply chains. We find that total life-cycle energy inputs and greenhouse gas emissions contribute an additional 63% for onroad, 155% for rail, and 31% for air systems over vehicle tailpipe operation. Inventorying criteria air pollutants shows that vehicle non-operational components often dominate total emissions. Life-cycle criteria air pollutant emissions are between 1.1 and 800 times larger than vehicle operation. Ranges in passenger occupancy can easily change the relative performance of modes."—Abstract.- Commission for Environmental Cooperation (CEC), Taking Stock: 2005 North American Pollutant Releases and Transfers (June 10, 2009)
"Taking Stock 2005 presents an overview of the releases and transfers of chemical contaminants from North American industrial sectors in 2005. The report is based primarily on publicly available data reported to the three national pollutant release and transfer registers (PRTRs) in North America:
- National Pollutant Release Inventory (NPRI) in Canada;
- Registro de Emisiones y Transferencia de Contaminantes (RETC) in Mexico; and
- Toxics Release Inventory (TRI) in the United States."—Introduction.
- Liisa Ecola & Thomas Light, RAND Transportation, Space, and Technology, Equity and Congestion Pricing: A Review of the Evidence (Technical Report) (2009)
"This report examines the equity issues associated with congestion pricing. We used published work, supplemented in a few cases with communication with practitioners, as the basis for the analysis. The evidence we reviewed came from two types of sources: evaluations of existing congestion pricing implementations and models of proposed or hypothetical congestion pricing systems. We found work on equity with regard to congestion pricing in two strands of literature: economic and planning. The former is most often concerned with the distribution of costs and benefits that accrue to society, while the latter is generally concerned with social justice aspects of congestion pricing and the potential negative consequences for low-income and other disadvantaged individuals."—Summary.- Energy Information Administration (EIA), The 2009 Outlook for Hurricane Production Outages in the Gulf of Mexico (Short-Term Energy Outlook Supplement) (June 2009)
"The National Oceanic and Atmospheric Administration (NOAA) predicted in its Atlantic Hurricane Season Outlook released on May 21, 2009 that the Atlantic basin will most likely experience near‐normal activity during the upcoming hurricane season (June 1 – November 30). NOAA projects 9 to 14 named storms will form within the Atlantic Basin over the next 6 months, including 4 to 7 hurricanes, of which 1 to 3 will be intense."—Highlights.- Florida Division of Emergency Management, Hurricane Awareness Poll: Results from 2008 Post Season and 2009 Preseason Hurricane Preparedness Surveys (May 2009)
"Key findings include:
- The majority of Florida’s residents have never actually evacuated.
- The majority of respondents both before and after Hurricane Season would opt to remain in their home communities and await rebuilding if their homes were destroyed.
- Many of Florida’s residents do not know the location of the shelter nearest to them.
- The best way to communicate with residents when their electricity goes out is by radio."—Executive Summary.
- Nigel Purvis, Climate Advisers, The Case for Climate Protection Authority, Opinio Juris (June 12, 2009)
This is the first in a series of blog posts at Opinio Juris discussing climate change regulation in national and international contexts. See the end of Purvis' first post for a list of related posts.- United Nations Environment Programme (UNEP), From Conflict to Peace Building: The Role of Natural Resources and the Environment (February 2009)
"Environmental factors are rarely, if ever, the sole cause of violent conflict. Ethnicity, adverse economic conditions, low levels of international trade and conflict in neighbouring countries are all significant drivers of violence. However, the exploitation of natural resources and related environmental stresses can be implicated in all phases of the conflict cycle, from contributing to the outbreak and perpetuation of violence to undermining prospects for peace. In addition, the environment can itself fall victim to conflict, as direct and indirect environmental damage, coupled with the collapse of institutions, can lead to environmental risks that threaten people’s health, livelihoods and security."—Executive Summary.- United States Department of Energy (DOE), National Energy Technology Laboratory (NETL), 2008 NETL Accomplishments (2009)
"The National Energy Technology Laboratory (NETL) has released its annual accomplishments report, highlighting breakthroughs in research and technology development to address the nation’s energy, economic, and environmental challenges."—Press release (June 2, 2009)- United States Department of Homeland Security (DHS), Federal Emergency Management Agency (FEMA), Hazard Mitigation Assistance Unified Guidance: Hazard Mitigation Grant Program, Pre-Disaster Mitigation Program, Flood Mitigation Assistance Program, Repetitive Flood Claims Program, Severe Repetitive Loss Program (June 1, 2009)
"The Hazard Mitigation Grant Program (HMGP) may provide funds to States, Territories, Indian Tribal governments, local governments, and eligible private non-profits following a Presidential major disaster declaration. The Pre-Disaster Mitigation (PDM), Flood Mitigation Assistance (FMA), Repetitive Flood Claims (RFC), and Severe Repetitive Loss Pilot (SRL) programs may provide funds annually to States, Territories, Indian Tribal governments, and local governments. While the statutory origins of the programs differ, all share the common goal of reducing the risk of loss of life and property due to natural hazards."- United States Department of the Interior (DOI), Framework for Geological Carbon Sequestration on Public Land: In Compliance with Section 714 of the Energy Independence and Security Act of 2007 (P.L. 110-140, H.R.6) (Report to Congress) (June 3, 2009)
"A critical issue for evaluating storage capacity is the integrity and effectiveness of geologic formations for sealing carbon dioxide underground, preventing its release into underground sources of drinking water, mineral resources or the atmosphere. The report recommends that candidate sites must have sufficient capacity to accept the volume of carbon dioxide expected for the life of the sequestration project and the geologic structure to ensure long-term containment of the carbon dioxide."—Press release.- United States Government Accountability Office (GAO), Aviation and Climate Change: Aircraft Emissions Expected to Grow, but Technological and Operational Improvements and Government Policies Can Help Control Emissions (Report to Congressional Committees, GAO-09-554) (June 2009)
"A number of policy options to address aircraft emissions are available to governments and can be part of broader policies to address emissions from many sources including aircraft. Market-based measures can establish a price for emissions and provide incentives to airlines and consumers to reduce emissions. These measures can be preferable to other options because they would generally be more economically efficient. Such measures include a cap-and-trade program, in which government places a limit on emissions from regulated sources, provides them with allowances for emissions, and establishes a market for them to trade emissions allowances with one another, and a tax on emissions. Governments can establish emissions standards for aircraft or engines. In addition, government could increase government research and development to encourage development of low-emissions improvements."—What GAO Found.
June 10, 11:50 PM / Ratio Juris / Terrorism: A Selected Bibliography
This bibliographic installment in the Directed Reading series treats terrorism. The material below will have to suffice as a cursory introduction of sorts to the topic, albeit one colored by my particular moral, legal and political perspectives. We would do well to recall that "Bismark 'terrorized' Prussia by using the army as a means of social control; Nazi Germany imposed a reign of terror across Europe; German and allied air forces resorted to 'terror bombing' in the Second World War; and Stalin ruled Russia by terror." Aerial bombardment ('carpet bombing') of North Vietnam and Cambodia by the United States during the Vietnam War is likewise aptly termed terror bombing. Thus, although the focus in the media, the academy, and the commanding heights of political power of late has been on the terrorist acts of non-State actors, as Noam Chomsky has not tired of telling us, terrorism is not only a weapon of the weak and desperate but is also prominent in the arsenal of those acting on behalf of the most powerful nation-state on the planet...and to far more devastating effect.
Few words are plagued by so much indeterminacy, subjectivity, and political disagreement as 'terror,' 'terrorize,' 'terrorism,' and 'terrorist.' The ordinary linguistic meanings of these variant terms are instantly evocative and highly emotive, referring at a literal level to intense fear, fright or dread. By itself, a literal meaning is not particularly instructive in distilling a legal concept of terrorism, since 'every form of violence is potentially terror-inspiring to its victim,' from mugging to warfare.
...[T]he peculiar semantic power of the term [terrorist], beyond its literal signification, is its capacity to stigmatize, delegitimize, denigrate, and dehumanize those at whom it is directed, including legitimate political opponents.
There are no clean lines between terrrorism and other forms of political violence, and the debate about defining terrorism is also a debate about the classification of political violence in all its myriad forms: riot, revolt, rebellion, war, conflict, uprising, revolution, subversion, intervention, guerilla warfare, and so on.
Invidious moralization tends to accompany reference to terrorism, casting it as a titanic, Manichean, existential struggle of polarities: humanity and inhumanity; civilization and barbarism; freedom and fear; modernity and pre-modernity; liberal democracy and apocalyptic, eschatological, phantasmagorical nihilism; the rational and the pathological; law and outlaw; friend and enemy; the West and Others; Christianity and Islam; light and dark; good and evil.
If terrorism is presented as an absolute threat, then counter-terrorism measures must also be unlimited. Labeling opponents as terrorists delegitimizes, discredits, dehumanizes and demonizes them, casting them as fanatics who cannot be reasoned with.
[I]f international law is not to become complicit in oppression by criminalizing legitimate political resistance, justifications for terrorist violence must be taken seriously by the law. [....] While a narrow class of terrorist acts may be excused by individual or group defences, some acts considered justifiable may still fall outside the scope of defences. To maintain the law's legitimacy, [we need to take seriously the possibility] that some acts of terrorism could, in exceptional cases, be regarded as 'illegal but justifiable' (or at least excusable) in stringently limited, objectively verifiable circumstances, possibly under the rubric of a 'collective defence of human rights.'
[T]hree iconic figures — Yasser Arafat (PLO), Gerry Adams (IRA), and Nelson Mandela (ANC) — were at some point arguably responsible for terrorism by their organizations. While their degree of responsibility differs (particularly in organizations with ostensibly separate political and military wings), it is startling how persons once regarded as terrorists were later embraced as legitimate representatives of political movements, entitled to a share of State power, or even to Nobel Prizes (Arafat in 1994, Mandela in 1993). All were absolved of criminal responsibility for terrorism, as a precondition of involvement in political settlements.
— Ben Saul, Defining Terrorism in International Law. New York: Oxford University Press, 2006.
[We might view the terrorist] as a representative of this or that political, or politico-religious, grievance or program, with a range of tactics at his or her disposal, just like the rest of us, and, just like the rest of us, resorting from time to time to morally dubious or outrageous tactics.
Terrorism is not a tactic restricted to revolutionaries and other non-governmental groups. Doubtless many people would be surprised at the idea that governments and authorized governmental agencies do or can use terrorist methods for their political purposes, but such surprise is quite often the product of naivete or prejudice.
— C.A.J. Coady, Morality and Political Violence. Cambridge, UK: Cambridge University Press, 2008.
Terrorism is not an organization or a movement or even an 'enemy' that one can declare war on; terrorism is simply the tactic of indiscriminately attacking enemy targets--especially civilians--in order to sow fear, undermine morale, and provoke counterproductive reactions from one's adversary. It is a tactic that many different groups sometimes employ, usually when they are much weaker than their adversaries and have no good option for fighting against superior military forces. Zionists [e.g., especially the members of Irgun (or 'Etzel') and Lehi (or the Stern Gang)] used terrorism when they were trying to drive the British out of Palestine and establish their own State...and the United States has backed a number of 'terrorist' organizations in the past (including the Nicaraguan contras and the UNITA guerillas in Angola). American presidents have also welcomed a number of former terrorists to the White House (including PLO chairman Yasser Arafat and Israeli Prime Ministers Menachem Begin and Yitzhak Shamir, who played key roles in the main Zionist terrorist organizations) which merely underscores the fact that terrorism is a tactic and not a unified movement.
— John J. Mearsheimer and Stephen M. Walt, The Israel Lobby and U.S. Foreign Policy. New York: Farrar, Straus and Giroux, 2007.
The reduction of the Palestinian Authority to a mere terrorist entity with no political character is a denial of reality. But reducing Hamas to this concept is equally so, whatever its methods of action and reactionary nature. Hamas is primarily a nationalist movement that inserts the national claim into a religious logic
— Sylvain Cypel, Walled: Israeli Society at an Impasse. New York: Overlook Press, 2006.
...[T]o be justified, terrorism should be subject to certain constraints, the most important of which is that it should be selective whenever possible and should initially at least be directed only against the actual perpetrators of the injustice against those who are now considering the use of violence as a response.
...[T]errorism in our time has probably been more concerned with the right to national self-determination than with any other single cause.
— Burleigh Taylor Wilkins, Terrorism and Collective Responsibility. New York: Routledge, 1992.
[There are a host of reasons that] suggest...the recent political philosophy of the affluent, liberal west may not afford the most useful point of entry for an investigation into problems of terror and terrorism.
All too often terrorism is the tactical choice simply because the perceived advantages it offers are so great. It costs relatively little in money and manpower. It has immediate effects and generates extensive and highly sensationalized publicity for one's cause. It affords an emotionally satisfying outlet for feelings of rage and the desire for vengeance. It induces an acute sense of vulnerability in all those who identify with its immediate victims. And insofar as those victims are chosen randomly from among some very large group, the class of people who identify with them is maximized, so that an extraordinary number of people are given a vivid sense of the potential costs of resisting one's demands. Figuratively and often literally, terrorism offers the biggest bang for one's buck.
— Samuel Scheffler, "Is Terrorism Morally Distinctive?" The Journal of Political Philosophy, Vol. 14, No. 1 (2006): 1-17.
When it comes to terrorism, a phenomenon that almost always stirs fear and insecurity disproportionate to the actual danger, the temptation for governments to bend the rules and the truth becomes irresistible.
...[A]part from being a massive propaganda gift to militant Islamist extremism, the war in Iraq has led to terrorism on an even bigger scale.
One of bin Laden's intentions back in 2001 [was to] portray the West as scared, emotionally vulnerable, overreactive, decadent and hypocritical about liberal values. The West has done a very good job of proving him right. The invasion of Iraq, the images of torture and the widely documented abuses of prisoners at Guantanamo and other U.S. detention facilities has left the U.S. reviled not only in the Arab world but throughout the West, undercutting the moral authority which is vital for any liberal democracy in dealing effectively with persistent terrorist violence.
There never was a 'terrorist threat' to western civilization or democracy, only to western lives and property. Such a threat becomes systemic only when democracy loses its confidence and when its leaders exploit public fear for political ends.
— George Kassimeris in the volume he edited, Playing Politics with Terrorism. New York: Columbia University Press, 2008.
There are a number of clear political advantages to be gained from the creation of social anxiety and moral panics. In the first place, fear is a disciplining agent and can be effectively deployed to de-legitimize dissent, mute criticism, and constrain internal opponents. In an atmosphere of national peril, the appeal for political unity takes on greater moral force and voicing disagreement can be characterised as an act of disloyalty. Fear can lead ordinary citizens to act as the primary agents of censure themselves, both in terms of self-censorship (choosing to withhold their own doubts and disagreements in public discourse) and the censorship of others (expressing disapproval when confronted with dissenting or 'disloyal' opinions in others). This is because fear is corrosive of both political expression and moral courage. Either way, its primary function is to ease the pressure of accountability for political elites. An instrument of elite rule, political fear is in effect a political project aimed at reifying existing structures of power.
Within the pragmatic logic of counterterrorism, it seems obvious that the politics of fear can too easily become self-fulfilling prophesy. Exaggerating the terrorist threat and maintaining social fear actually emboldens and empowers terrorists; it provides them with incontrovertible evidence of their own ability to gain unlimited publicity and influence a terrified society through the threat of violence. Given that terrorism is essentially a form of political communication and therefore relies on the widest possible publicity, the politics of fear plays directly into the hands of militants. From this perspective, it is strategically counter-productive.
It can easily be demonstrated that state terrorism--the use or threat of state-sponsored violence to instil fear for political purposes--remains a far greater threat to individual and social security than the threat of dissident terrorism. Over the last few decades, states, including several liberal democracies, have tortured and murdered hundreds of thousands of political opponents and caused massive social destruction to communities in places like Vietnam, Cambodia, South Africa, El Salvador, Nicaragua, Cuba, Chile, Spain, Northern Ireland, Rwanda, Serbia, and Turkey--to name just a few. And government forces continue to employ violent repression and state terror in places like Chechniya, Palestine, Kashmir, Afghanistan, Iraq, Algeria, Saudi Arabia, Egypt, Uzbekistan, Zimbabwe, and Myanmar, among many others. State terror has always been a far greater threat to security than non-state terror, and yet, state terror is conspicuous by its absence from the public narrative of the terrorist threat--except of course, when it is cynically deployed to justify wars of 'regime change.'
— Richard Jackson in George Kassimeris, ed., Playing Politics with Terrorism. New York: Columbia University Press, 2008.
Today, U.S. Special Operation Forces--who do not wear uniforms, operate behind enemy lines, do not openly display their weapons, and generally fail to conform to the rules of war--...could be considered terrorists in that they are neither soldiers nor civilians.
...[T]errorists are fighters who are even more in need of the traditional protections of the rules of war, for they inspire emotional reactions that are themselves often inhumane.
...[S]ome terrorists engage in indiscriminate violence and others do not.
[Setting aside for the moment the larger obligation of humane treatment], from the standpoint of retributive justice, terrorists--and all others, for that matter--are owed procedural due process considerations that are involved in establishing what they have done.
If terrorists are combatants, then they are owed the type of mutual respect that is paid to all combatants according to the Just War tradition. If we are to use the law/crime model, then terrorists are owed the full due process considerations that apply to any criminal suspect.
— Larry May, War Crimes and Just War. Cambridge, UK: Cambridge University Press, 2007.
June 9, 5:12 AM / Agricultural Law / Fat liver
"Animal-rights advocates have made a big deal about the way the ducks are force-fed to produce the enormously swollen livers from which the foie gras is made." And now Bob Herbert of the New York Times looks "at the plight of the underpaid, overworked and often gruesomely exploited farmworkers who feed and otherwise care for the ducks."
At issue is whether New York will award certain rights to farmworkers, "including the right to at least one day of rest per week and . . . the right to bargain collectively."
June 9, 0:53 AM / Jurisdynamics / Least complicated
June 7, 2:52 PM / Agricultural Law / Grandma May Have Had it Right: Lard Returns to Favor
Slate Magazine recently published its Food Issue. Among an interesting collection of articles, is
Lard: After Decades Of Trying, Its Moment Is Finally Here, by Regina Schrambling.
The article points out that lard's fat is also mostly monounsaturated, has a higher smoking point than other fats, causing food to absorb less grease when fried in it, and it is minimally processed. Paraphrasing Michael Pollan’s mantra, “your great-grandmother surely cooked with it, so you should, too.”
And, the article notes, "add to that the new awareness that what you eat matters environmentally—if you are going to eat an animal on a planet at risk from too many humans raising too many animals to eat, you have to eat the whole thing. Lard is just about the last stop before the squeal when pork producers are extracting every savory bit from a pig."Don't buy lard at the grocery store, though, as it is is likely to be hydrogenated. Try the farmers market or a specialty meat store.
My family's pie crust recipe always called for lard. Like many of my generation, I wrongly rejected that as unhealthy. However, the shortening that we switched to was full of trans-fats. And, my pie crust, not made with lard never tasted so good.
Rhubbarb is great on the farm this time of year, a plant that grandpa used to affectionately call the "pie plant." Maybe I'll just have to give it another try. . .
June 5, 9:39 PM / Jurisdynamics / Follow J.C. Redbird on Twitter» Adapted from The Cardinal Lawyer «
My Twitter handle is J.C. Redbird. I would be honored if you would follow my tweets. To make sure that I follow your Twitter account in return, send me a private message inside Twitter, and I will take care to add you to my Twitter reading list.
June 3, 5:51 PM / Commercial Law / Virtual Payment Systems
The Financial Times is reporting that Facebook will unveil soon its Facebook currency. Here is a link to the article. Of course Facebook is not alone in creating its own currency. Second life has used Lindens, which can be exchanged on an open market for U.S. Dollars. There was also in 2007 the Liberty Currency featuring the Ron Paul Dollar. In 2007 the FBI raided the Liberty Dollar Currency office and gathered as evidence all of the Gold and Silver from the Liberty Office.
June 3, 5:05 PM / MoneyLaw / With medium power comes no responsibilityIn his celebrated New York Times Magazine piece, The case for working with your hands, Matthew Crawford makes observations about middle managers that apply with full force to those of us who live academia's so-called "life of the mind":
Often as not, [craftsmen's workplace] crises do not end in redemption. Moments of elation are counterbalanced with failures, and these, too, are vivid, taking place right before your eyes. With stakes that are often high and immediate, the manual trades elicit heedful absorption in work. They are punctuated by moments of pleasure that take place against a darker backdrop: a keen awareness of catastrophe as an always-present possibility. The core experience is one of individual responsibility, supported by face-to-face interactions between tradesman and customer.
Contrast the experience of being a middle manager. This is a stock figure of ridicule, but the sociologist Robert Jackall spent years inhabiting the world of corporate managers, conducting interviews, and he poignantly describes the “moral maze” they feel trapped in. Like the mechanic, the manager faces the possibility of disaster at any time. But in his case these disasters feel arbitrary; they are typically a result of corporate restructurings, not of physics. A manager has to make many decisions for which he is accountable. Unlike an entrepreneur with his own business, however, his decisions can be reversed at any time by someone higher up the food chain (and there is always someone higher up the food chain). It’s important for your career that these reversals not look like defeats, and more generally you have to spend a lot of time managing what others think of you. Survival depends on a crucial insight: you can’t back down from an argument that you initially made in straightforward language, with moral conviction, without seeming to lose your integrity. So managers learn the art of provisional thinking and feeling, expressed in corporate doublespeak, and cultivate a lack of commitment to their own actions. Nothing is set in concrete the way it is when you are, for example, pouring concrete.
June 1, 11:37 PM / Commercial Law / Call for ProposalsCall for Proposals
AALS Section on Commercial and Related Consumer Law
“The Principles of the Law of Software Contracts:
A Phoenix Rising from the Ashes of Article 2B and UCITA?”
2010 AALS Annual Meeting, New Orleans, LouisianaThe Executive Committee of the AALS Section on Commercial and Related Consumer Law invites proposals for the Section’s 2010 AALS Annual Meeting program and a print symposium to follow on the topic “The Principles of the Law of Software Contracts: A Phoenix Rising from the Ashes of Article 2B and UCITA?”
The Topic: Contracts concerning computer software have presented difficult legal issues for many years. Although software is often bought and sold like goods, software contracts do not fit easily into the sale of goods rubric of Uniform Commercial Code Article 2. In the 1990s, the American Law Institute (ALI) and the National Conference of Commissioners on Uniform State Laws (NCCUSL) sought to address special issues concerning software contracts by developing a new UCC Article 2B. This effort failed because of fundamental disagreements about the substance of important rules. NCCUSL (now known as the Uniform Law Commission, or ULC) then carried forward the project on its own and, in 1999, promulgated the Uniform Computer Information Transactions Act (UCITA), providing a comprehensive (and controversial) set of rules for licensing computer information. To date, only Maryland and Virginia have enacted UCITA, and the ULC has ceased promoting additional enactments.A new software contracts project has emerged in Article 2B’s and UCITA’s wake: the Principles of the Law of Software Contracts. On May 19, the ALI approved the Principles, which undertake to weave the currently divergent threads of law governing software contracts into a coherent whole that will guide parties in drafting, performing, and enforcing software contracts, assist courts and other arbiters in resolving disputes involving software contracts, and, perhaps, inform future legislation addressing software contracts. Do the Principles clarify the law of software contracts? Will they successfully unify the law of software contracts? Are they consistent with current best practices in software contracting? Will they encourage desirable future developments in the law and practice of software contracts? These are among the questions we hope our program speakers and symposium contributors will address.The Program: Principles Reporter Bob Hillman (Cornell) and Associate Reporter Maureen O’Rourke (Boston U.) will offer their unique insights on the Principles’ drafting, key substantive provisions, and their legal and practical implications. Amy Boss (Drexel), who was intimately involved with both Article 2B and UCITA and has been an adviser on the Principles, will add her own insights about the prior efforts’ failures and the prospects for the Principles’ success. We seek one or more additional speakers who will offer their perspectives on the Principles, the economic, historical, policy, and political forces that motivated and shaped them, and their likely impact on the law and practice of software transactions.The Symposium: We are working to identify a law review that will provide the best outlet in the which to publish papers from our presenters as well as a number of additional papers from those who respond to this call for proposals and others from whom we are soliciting contributions. In addition to contributions from a broader cross-section of legal scholars than we can offer the opportunity to speak at the annual meeting, we hope that the print symposium will also include articles from interested judges, practitioners, and others. We currently anticipate that finished papers would be due in late spring or summer 2010 for publication in late 2010 or early 2011.How to Submit a Proposal: If you would like to present or contribute, please e-mail an abstract, précis, or draft by August 29, 2009 to Professor Keith A. Rowley, Chair of the AALS Section on Commercial and Related Consumer Law. E-mail: keith.rowley@unlv.edu. The Executive Committee will review all submissions and notify by October 1, 2009 those we would like to present their topics at the annual meeting and those additional authors we would like to contribute to the print symposium.
May 28, 7:17 PM / Commercial Law / Small business in action!
I wanted to share this "fun" commercial picture of a small businessman in action in Moscow, Russia. This kiosk is right near Red Square, but most of the kiosks were only lightly filled with shoppers. Tourism is certainly down in Moscow with hotels reporting occupancy down around 50%. That will make it a tough summer for small sellers. This kiosk owner did manage to relieve us of about 800 RUB for some nesting dolls for my children!-JSM
May 28, 6:50 PM / Commercial Law / New Investments to the IMFThe IMF has been busy helping countries respond to the economic crisis through financing. Lending commitments are at a record $157 billion. One of the changes, though, has been an easing of the loan conditions that often went along with IMF aid. The IMF has often encouraged political policy changes in exchange for money. Is this a good thing? The tension here is that the countries need the loan money without delay. The IMF is wise to respond quickly to the crisis. That does not mean that the IMF and the borrowing countries, though, are not missing "opportunties" to promote better business and other practices that enhance competitiveness in the longer term. In the end, the borowing countries may still need changes in local laws and governmental frameworks to be competitive. Perhaps now, though, is not the best time to impose such changes given the instability in the borrowing countries already.
Moreover, the IMF's focus may be changing due to the financial crisis with more efforts toward the donor countries. Not only do the larger countries have to keep markets active with developing countries, but they must support the IMF's loan efforts. There does seem to be some action in that respect. Russia, for instance, just announced a new $10 billion commitment to the IMF. Brazil, China (up to $40 billion) and India are also making new investments in the IMF. The additional investments may lead to these countries having a greater say in the business of the IMF and global monetary policy generally. Of course, new commitments are necessary in order for the IMF to continue the financial arrangements with the borrowing countries. The U.S. Senate recently rejected a proposal to eliminate a $180 billion in loan commitments to the IMF. The funding is still pending, though, but has the backing of the White House.-JSM
May 28, 0:27 AM / Agricultural Law / Bill Marler Addresses the WSU - Pollan Controversy
Here is an update to the previous blog post about Washington State University's decision to pull the Michael Pollan book, Omnivore's Dilemma from its mandatory freshman read.
It turns out that noted food safety lawyer Bill Marler is an alumnus of WSU. Anxious to provide his "Cougars" with a chance to do right by this issue, Mr. Marler publicly offered to pay to bring Michael Pollan to speak at the university. The Chronicle of Higher Education reported that WSU accepted his generous offer. Looks like the students will have lots to talk about, with food and agriculture at the forefront of the discussion.
May 27, 8:15 PM / Ratio Juris / Law Professors as BridgesOne of the themes developing in the legal blogoshpere following the nomination of Judge Sotomayor to the Supreme Court concerns the role of the legal professoriate in elevating the debate. (For example.) That prompts me to toss out a link to a recent post by Dean Joe Kearney on the Marquette Faculty Blog concerning that role more generally. In it, Dean Kearney discusses recent comments by Marquette alum and Brooklyn Law Professor Aaron Twerski and Marquette faculty member (and Prawfsblawg alum) Michael O’Hear regarding the relationship between law faculties, larger university communities, and the bench and bar. O’Hear made his remarks in connection with receiving the Judge Robert Warren Public Service Award from the Eastern District of Wisconsin Bar Association, and explores the many ways in which a law professor can serve as a bridge between many different communities. Twerski likewise spoke in connection with receiving an award – the Robert C. McKay Law Professor Award from the Torts and Insurance Section of the ABA – and advances the view that legal scholars should not fall into the trap of speaking only to one another. I have no grand thoughts of my own to add. Only the suggestion that these brief commentaries are worth a read and that the points they raise are, as always, things worth giving thought as we proceed on our scholarly journeys.
