A Passing (Personal) Comment on “Academic Institutes”

After posting earlier about think tanks, a friend of mine messaged me to inquire whether the black-box nature of think tanks is also present in formal academic institutes, that is, subdivisions existing within university schools or departments which are dedicated to a particularized field of study. The reason he asked me this is because I spent nearly five years associated with one directed toward international aviation law and had up-close familiarity with numerous others covering, inter alia, human rights, intellectual property, and animal law (ugh). My frank answer was, “I don’t know. It depends.” I realize that’s not terribly helpful, but given the sheer size and diversity of academic institutes out there, it’s very difficult, if not impossible, to color them all with a single bucket of paint. Besides, I know very little about the nature of institutes dedicated to, say, the physical sciences or the arts; my “realm” was always law. With that out of the way, I do think it is fair to say that legal-academic institutes which rely heavily on donor money, particularly corporate and special-interest donor money, are always at risk of being captured ideologically. For instance, here is an excerpt from the mission statement of my former institute, which appears on its website:

IALI [The International Aviation Law Institute] strives to be the premier source for research, analysis, and study of international aviation law and policy. To achieve this mission, IALI is engaged in educating the next generation of experts in aviation law and policy through both its journal, Issues in Aviation Law and Policy, and its academic programs; originating and disseminating groundbreaking research and analysis of timely issues in aviation law and policy for the benefit of academics, policymakers and industry stakeholders; and acting as a forum to inform, advocate and promote a liberal, free market approach to the transnational air transport industry.

Notice the last sentence: IALI exists to “act[] as a forum to inform, advocate and promote a liberal, free market approach to the transnational airport industry” (emphasis mine). (In the interest of full disclosure, dear readers, I had a direct hand in penning that line many moons ago.) It should come as no surprise that IALI receives direct support from several major international carriers, including United and FedEx, and regularly participates in conferences dedicated to air-transport liberalization. (Also in the interest of full disclosure, dear readers, I directly benefited from this donor money for most of my time with IALI.) I can say from personal experience that that there was little-to-no tolerance at IALI or among its allies for any research or writing suggesting that the air-transport industry and its workers may be better off through the introduction of more regulation or transnational oversight. Indeed, the only time regulation was ever mentioned with a positive ring is when it protected airlines colluding with each other under blanket grants of antitrust immunity. When I authored (eventually co-authored) an article published in the Harvard Environmental Law Review, I was compelled to insert footnotes and qualifying language suggesting that not only should international air carriers not be subject to transnational emissions regulations, but that man-made climate change itself is possibly a myth. The donor base for IALI would have been unhappy otherwise.

How common this behavior is among legal-academic institutes is anyone’s guess, though very few exist without external support. There has been a longstanding suspicion that institutes dedicated to the so-called “Law & Economics” movement have been directed primarily by interests favoring free-market capitalism. Similarly, human-rights law institutes invariably favor Western, liberal-democratic responses to human-rights issues and act to promote an Enlightenment-era conception of “rights” rather than, say, study the efficacy of international human rights law (a far more defensible academic enterprise). Given how closely law is intertwined with policy and politics, I would not be the least bit surprised to find that a majority of legal-academic institutes directed by particular ideological orientations that favor the interests of their respective donors.

Posner on Reforming Legal Practice

Judge Richard Posner does a fine job of angering just about everyone from time to time, though he often does it in service to reforming the legal profession from top to bottom. Good for him. While I am far from being in perfect agreement with Posner about a great many things, I can’t help but think he’s on to something with his latest (academic) article, “What is Obviously Wrong with the Federal Judiciary, Yet Eminently Curable – Part I,” 19 Green Bag 2d 187 (2016). Here are some excerpts (but definitely read the whole thing):

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Posner on Trump

Eric Posner, a law professor at the University of Chicago, has posted a fascinating reflection on whether the Constitution and American political institutions are strong enough to constrain (potential) President Donald Trump, assuming he chooses to behave like a dictator. Here’s an excerpt:

Let’s consider one of Trump’s proposals: to strengthen libel law so that he can punish those who criticize him. Could he do this? He cannot do it by executive order, and he probably cannot do it even if he persuades Congress to pass a law. First Amendment doctrine is clear: a court would strike down the sort of libel law that Trump advocates (or appears to advocate).

But there are ways that Trump could maneuver around this barrier. If he can appoint flunkies to head the Department of Justice and the FBI (Chris Christie, maybe?), they can order agents to spy on a political opponent and bring prosecutions. All that is needed is a reasonable suspicion of law violations, and there are so many laws that any prominent person, particularly journalists and opposition politicians, might violate even if inadvertently—campaign finance laws, tax laws, business licensing laws, and secrecy laws come to mind, depending on the person’s activities—that an excuse for audit, inspection, or surveillance can be ginned up. Judges can interfere at various steps along the way; whether they do will depend on whether there are plausible reasons to think that the person has broken a law (think of Hillary Clinton, for example). While nothing may come of the investigation, the risk of such harassment, if pursued vigorously enough, may deter opposition to Trump at the margin.

To be fair, I think Posner may be overplaying his hand a bit by suggesting so strongly that Trump will indeed choose to behave like a dictator should he assume office. Moreover, Posner’s suggestion, found elsewhere in his post, that people flock to Trump because they “yearn for a strongman who will protect them” is too condescending to take seriously. Still, it’s not out of the question that Trump will follow his predecessors (particularly George W. Bush and Barack Obama) in expanding the centralized powers of the Presidency. That shouldn’t surprise Posner one bit, particularly since he, along with Harvard professor Adrian Vermeule, announced the death of the Madisonian system of checks-and-balances in their 2010 book The Executive Unbound.

Something on Scalia

I have been torn for the last week on whether or not to post something on the late Supreme Court Justice Antonin Scalia. After all, there is already a flood of commentary out there (pro and con), including numerous Catholic journalists and bloggers weighing-in on the matter. Amidst all of the heartfelt praises and damn demonizations has come some soberminded analysis as well, such as Eric Posner’s eyebrow-raising (albeit incomplete) analysis of Scalia’s legal influence. That doesn’t start to measure Scalia’s far more potent political and jurisprudential influence, however. Several generations of lawyers, judges, and law professors have been influenced by both Scalia’s originalism when it comes to constitutional interpretation and textualism with regard to statutes. At the political level, American conservatives have long looked to Scalia as their champion on the Court, wryly picking apart the opinions of his fellow liberal justices while attempting to fashion a legal basis upon which to roll back “living constitutionalism,” if not now, then at some point in the (distant?) future. And even if Scalia’s influence peters out over the next generation, there can be little doubt that his writings from the bench — particularly his dissents — will be marveled over for centuries for their rhetorical genius.

For what it’s worth, I have never been very high on either Scalia or originalism. In my first foray into legal-academic writing (which I am not inclined to defend too strongly these days), I found myself siding with Harry Jaffa’s “Straussian” critique of originalism as a historicist jurisprudence unfit for a vibrant and virtuous democracy. Over time, however, I became less convinced of Jaffa’s account of how the Constitution should be interpreted and started to appreciate the consequentialist defenses of originalism as a means of limiting the courts’ capacity for running roughshod over classical federalism. Still, there is no denying that originalism, as a judicial philosophy, is riddled with difficulties, not the least of which being its abhorrence toward the natural-law tradition. Why that doesn’t appear to bother more (American) Catholics is something of a mystery, but I digress.

No one expects the upcoming political battle over Scalia’s replacement on the Court to be either pretty or edifying. Some are hoping the appointment can be delayed until next year when either Hillary Clinton or Donald Trump take the Oath of Office. Either way, it is doubtful that Scalia’s successor will carry either the gravitas or talent he did to the bench regardless of their ideological persuasion. Besides, the arrival of a single conservative justice to the Court will do next-to-nothing to undo the social and moral damage which has already been inflicted on the nation. Catholics, particularly conservative Catholics, need to learn that the Supreme Court will not save us, nor for that matter will the liberal democracy so many desperately cling to as the surest means of securing our freedom.

Some Remarks on Trullo in the Catholic Church

In my earlier post, “Edwards Peters Contra the East,” I incorporated some critical remarks concerning Peters’s dismissal of the 692 A.D. Council in Trullo (otherwise known as the Quinisext Council or Penthekte Synod). It is commonplace for Latin Catholics dismissive of the Eastern practice of married clergy without the requirement of perpetual continence to claim, on the one hand, that Trullo introduced innovations into the (Eastern) Church and, on the other, has no standing in the Catholic Church. Indeed, it is not difficult to find popular and academic pieces written from a Latin perspective which dismiss Trullo tout court. This picture is not altogether accurate, as detailed in Fr. Frederick R. McManus’s article, “The Council in Trullo: A Roman Catholic Perspective,” 40 Greek Orthodox Theological Review 79 (1995). Without claiming to summarize all of the article’s contents, allow me to mention a few highlights:

  • Although the disciplinary canons promulgated at Trullo were immediately rejected by Pope Sergius I at the close of the seventh century, John VIII, in the ninth century (if not also his predecessor Pope Constantine in the eighth century), accepted those canons which did not contradict the usages and disciplines of the See of Rome. At the heart of Rome’s initial rejection of Trullo was its pretense of defining disciplines and practices for the universal Church, ones which would have contracted longstanding Latin usage (e.g., Lenten fast on Saturdays and mandatory celibacy for deacons and presbyters).
  • Numerous sources throughout the medieval period indicate that that Rome recognized that Trullo was binding law for the Greeks (i.e., Eastern Orthodox and Eastern Catholics who follow the Byzantine Rite) even though it had no binding status for Latin Catholics.
  • Critical editions of the canons of Trullo — in Latin and Greek — were published first under Blessed Pope Pius IX and, second, under Popes Pius XI and XII when sources were being assembled for what would eventually become the Code of Canons for the Eastern Churches.
  • Although the 1990 Code of Canons for the Eastern Churches leaves much to be desired in both substance and form, the manner of its promulgation is noteworthy. In his Apostolic constitution Sacri Canones, John Paul II explicitly recognizes the legitimacy of the Eastern canonical tradition, including Trullo.

These observations do not obviate the fact that Latin Catholics will likely continue to raise the false flag that Trullo’s canons concerning priestly celibacy are “an innovation” or that celibate priesthood is ipso facto superior to the married priesthood. Let me close with a reminder that that the crisis of Christianity in modern times — one which can be found in the East and the West — will not be remedied through petty polemics, triumphalism, insult, creative history, or chauvinism. The ancient Latin Catholic discipline of clerical celibacy — in my humble opinion — ought to be respected and retained, and no Easterner — Catholic, Orthodox, or Oriental — should cast aspersions upon it. Perhaps it would be good if, at some point in the future, Eastern Christians take time to reflect more deeply on the unique spiritual and practical benefits of clerical celibacy in the light of their own tradition. Eastern Christendom’s great monastic culture would never have been possible without the discipline of celibacy, nor, in the Catholic context, would the missionary work of the Redemptorists in Ukraine have been possible either. Catholics everywhere should give thanks to God for the gift of the priesthood and pray that more men take up this vocation, married or celibate.

The Paris Agreement

The 2015 Paris Climate Conference (better known as COP21) is over and we have an agreement—sort of. Despite what you read in the press, the so-called “Paris Agreement” looks a lot less like a binding multilateral treaty and much more like an aspirational policy statement. The short and the long of it is that the Paris Agreement has no teeth, only a soft shaming mechanism intended to keep countries compliant with its loosey-goosey terms. Here’s how it works. Every signatory state is expected to put forth “nationally determined contributions” (NDC), that is, domestic policy steps intended to reduce emissions. These NDCs are then subject to monitoring and review, with countries expected to dial-up their NDCs every five years (though there is no requirement that they do so). Potential scofflaw states, so the thinking goes, will not wish to be “outed” under the Paris Agreement’s transparency requirements, but even if they are, so what? All countries defect from their international commitments when the costs of compliance outweigh the benefits. The Paris Agreement will not change this reality.

Some commentators have stated that the Paris Agreement should have come packaged with a stronger enforcement mechanism without bothering to think through how such a mechanism might work. Imposing multilateral sanctions on defectors would probably be next-to-impossible to coordinate. Bilateral enforcement is easier to pull off, so long as there is a real incentive in play. If China, for instance, defected from its NDCs, why would Canada bring an enforcement action against it? NDC defection arguably harms the whole planet, not just Canada, and Canada will not want to incur enforcement costs alone. Now compare this scenario to a routine trade dispute where China imposes illegal quotas on imports of Canadian maple syrup. In that case (which would likely be handled through the World Trade Organization), Canada has a concrete and unique economic interest in trying to force China to remove the quotas and if China doesn’t, Canada can take retaliatory measures. The Paris Agreement is not a trade treaty, and so it’s unrealistic to expect it to function like one.

Another gripe about the Paris Agreement is that it does not impose concrete emissions benchmarks on states but instead allows each country to come up with their own independent determinations that may fall far below what is needed in order to keep global temperatures at bay. Let’s assume the Paris Agreement did come up with these standards. Would any country—particularly ones with developing economies—have signed on? The odds are strong that any imposed standards would have been fairly low level and, again, without a strong enforcement mechanism in place, would the imposed standards have mattered at all? At least the NDC model allows states to make their own economic and environmental calculus in line with domestic interests which can be altered as the political winds shift. A country hesitant to make strong NDC commitments now may be singing a different tune in 10 years.

In the end the Paris Agreement isn’t worth getting too excited about. Conservative critics of the accord miss the point when they act as if international law is once again encroaching upon American sovereignty. The whole agreement is built around domestic policy considerations, not internationally imposed standards. The U.S. can be as “progressive” or “regressive” on emissions policy as it wants without offending the terms of the Paris Agreement. And even if the U.S. defected from its NDC commitments, it’s unlikely that anything would come of it except for some bad international press. And Americans should be quite accustomed to that by now.

Metrojet Flight 9268 – A Preliminary (Legal) Remark

As most longtime readers are aware, I know a thing or two about international aviation law and have even ventured to comment on it from time to time (see, e.g., posts related to the Malaysia Airlines tragedy). News has now broken that Russian air carrier Metrojet Flight 9268 (7K9268), which crashed over Sinai last week, was likely brought down by a bomb planted by the so-called Islamic State (ISIS) or one of its affiliates. Nothing is 100% official yet, though United States and United Kingdom intelligence services are backing this conclusion. Russia and Egypt are not so sure.

It should come as no surprise that the apparent attack on 7K9268 is a crime under international law. The 1971 Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation (1971 Montreal Convention) expressly prohibits any act which endangers, damages, or destroys an international carrier, though arguably earlier air-crimes treaties and customary international law proscribed such actions as well. One of he purposes of the 1971 Montreal Convention was to ensure that air criminals would be either prosecuted or extradited, no matter where in the world they are apprehended (the classic principle of aut dedere aut judicare). Despite the hype around the air-crimes treaties, none of them impose an unbreakable obligation on their respective state parties to prosecute or extradite. Any state can have recourse to its national laws governing extradition to block the obligation. So, for example, a country which has a law prohibiting extradition to any state which imposes torture or the death penalty can evade the obligation. As for prosecution, that is left up to national authorities; they can take a walk if they so desire.

What this means is that there is no guarantee under international law that the perpetrator(s) of the 7K9268 attack will be brought to justice even if apprehended. While there would no doubt be intense diplomatic pressure for any apprehending state to comply with the principle of aut dedere aut judicare, it’s uncertain that it will, particularly if the domestic political costs for doing so are high. The only reliable recourse Russia has is to use its own resources, including military force, to track down and kill or capture those responsible.

I will likely write more on this as further information comes to light.

The Malaysia Airlines Tragedy and International Law – Post-Postscript

Today’s news that a Russian-built Buk missile launched from eastern Ukraine brought down Malaysia Airlines Flight 17 (MH17) has set off fresh calls to hold the perpetrators legally responsible. That is exponentially easier said than done, as I discussed last year on Opus Publicum in a series of off-the-cuff posts examining the international-law issues surrounding the tragedy. (For those unaware, I am the co-author of a critical treatise on international aviation law published by Cambridge University Press.)

At this point I see no compelling reason to substantially revise the preliminary conclusions I reached last year: Russia will skate; the Ukrainian rebels directly responsible will likely not be apprehended; and Malaysia Airlines itself will wind up footing the civil-liability bill. For those interested, I have linked the original posts below.