The Marketplace Fairness Act, now being debated in the US Senate, is a rare phenomenon: a bill with strong bi-partisan support and an accurate title. The Act would indeed establish fairness in the marketplace by imposing on out-of-state internet and mail order sellers the same sales tax withholding requirements now imposed only on in-state brick-and-mortar businesses. The Senate and then the House should adopt the Marketplace Fairness Act so that the President can sign it into law.

In 1992, the US Supreme Court in Quill Corporation v. North Dakota held that a state cannot require out-of-state sellers to collect sales taxes when such sellers ship goods into the state since such out-of-state sellers have no physical presence in the state. Quill Corporation conducted a classic mail order business in North Dakota. Quill sold office and equipment supplies to North Dakota customers, but had no salespersons, stores or other physical presence in North Dakota. Quill Corporation advertised in North Dakota, mailed catalogs and flyers to North Dakota households, and shipped purchased goods to North Dakota customers via mail or common carrier.

Since Quill Corporation had no in-state physical presence, the US Supreme Court ruled, North Dakota could not require Quill to collect sales tax from North Dakota customers on such customers’ purchases. However, the Court made clear, Congress can change this result by federal legislation authorizing states to impose sales tax withholding obligations on out-of-state sellers.

Since Quill, online commerce has burgeoned in important measure because out-of-state internet firms need not collect sales taxes while stores with in-state presence must. This unfairly disadvantages both ma-and-pa in-state stores which must collect sales taxes and so-called click-and-brick sellers like Staples.com and Walmart.com which, because of their in-state stores, must collect sales taxes on their internet sales. In contrast, online and mail order sellers which eschew such in-state stores can effectively sell sales tax-free since, under current law, such sellers cannot be required to collect sales taxes because they are not physically present in the state.

This situation is neither fair nor efficient. Technically, purchasers of online and mail order merchandise must on their own pay taxes on their purchases from out-of-state firms. In practice, the states cannot collect and enforce taxes on most online and mail order purchases. This disadvantages in-state businesses which must collect sales taxes while their internet and mail order competitors need not.

The Marketplace Fairness Act would overturn Quill for large internet and mail order sellers. The Act would thereby put sellers on the proverbial level playing field by authorizing states to require out-of-state sellers like Quill Corporation to collect sales taxes even when such sellers lack in-state physical presence.

Some opponents characterize the Act as establishing a new tax. Some opponents also argue that the Act would impose an unfair burden on small businesses. Neither argument is correct.

Internet and mail order buyers have always owed taxes on their purchases. Such buyers have generally been unaware of or have ignored their obligation to pay taxes on their purchases from out-of-state sellers. The Marketplace Fairness Act would put buyers from mail order and electronic sellers in the same position as persons who purchase from in-state brick-and-mortar stores, that is to say, subject to sales tax withholding by the seller.

Moreover, the Act would only permit states to impose sales tax collection responsibility on internet and mail order firms with at least one million dollars in out-of-state sales. Truly small businesses would, per the Quill, still enjoy immunity from tax collection responsibilities on their out-of-state sales as long as they have no physical presence in the taxing state.

Some states will use the revenues they collect under the Act to balance their budgets. Others will use those revenues to lower their respective sales tax rates. Each state should be free to decide for itself.

The Marketplace Fairness Act is long overdue. It is neither fair nor efficient to require brick-and-mortar sellers to collect sales taxes while their on-line and mail order competitors effectively sell sales tax-free. By overturning Quill, the Act would indeed establish tax fairness in the marketplace.

Edward A. Zelinsky is the Morris and Annie Trachman Professor of Law at theBenjamin N. Cardozo School of Law of Yeshiva University. He is the author of The Origins of the Ownership Society: How The Defined Contribution Paradigm Changed America. His monthly column appears here.

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Image Credit: President Obama’s address to a joint session of Congress by Lawrence Jackson. Public domain via Wikimedia Commons.

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In April 2013, OUP attended the American Society of International Law’s annual conference in Washington, DC. Now, it is the turn of the society’s European counterpart, the European Society of International Law (ESIL).

The 2013 ESIL Research Forum, to be held in Amsterdam on 23-25 May, will gather delegates from all corners of the globe to discuss the key issues and challenges that affect international lawyers today.

The European Society of International Law was formed in 2001 by the original editors of the European Journal of International Law, out of a need to develop a “general European network to bring together and to develop deeper understanding among all of those working in the field of international law, be they government officials, diplomats, legal advisers in international organizations, academics, or practising lawyers.” The society hosts a variety of events including its biennial conference, which takes place every other year. For those years inbetween it is the turn of the Research Forum, which is now in its fifth year.

The theme of this year’s Forum is law as a profession, which will be articulated through an exploration of the different roles carried out by international lawyers, ranging from the international lawyer as judge to the international lawyer as academic. What challenges do these lawyers face? And how will they be overcome? ESIL 2013 will attempt to answer these questions through a jam-packed few days of plenary sessions, panel discussions, workshops, and keynote addresses. Three ESIL interest groups will also convene the day before the Forum opens. These are: the International Business and Human Rights Interest Group; International Economic Law Interest Group and the Law of the Sea Interest Group. Visit the conference website for further details.

Here are some of the highlights:

• On arrival, make sure you attend the welcome addresses at the Opening Ceremony, all of which are being delivered by OUP authors: Laurence Boisson de Chazournes, Elies van Sliedregt, and Andre Nollkaemper
• Many of our authors will be moderating, participating, and presenting at this year’s event. Check out the programme for further details/
• Some of the sessions will be streamed online, so you don’t have to be at the conference to enjoy all it has to offer.
• On Friday, ESIL will host the Gala Dinner — a lovely way to round off a busy day at the Forum.

No doubt you will be busy most days attending sessions, catching up with colleagues, and browsing the exhibition stands. However, if you do have some down time, ensure you take the time to explore Amsterdam, the host city of this year’s event. Why not take a boat cruise along the canal or visit the newly re-opened Van Gogh Museum? Or if you are feeling particularly energetic, perhaps take a bike ride around the city to view the sights?

While at the Forum, don’t forget to visit us at the OUP stand to browse our latest books and perhaps pick up a journal or two. Be sure to follow the #ESIL2013 hashtag for the latest updates. We look forward to seeing you there!

Katherine Marshall is Marketing Executive for Academic Law titles at Oxford University Press.

Oxford University Press is a leading publisher in Public International Law, including the Max Planck Encyclopedia of Public International Law, latest titles from thought leaders in the field, and a wide range of law journals and online products. We publish original works across key areas of study, from humanitarian to international economic to environmental law, developing outstanding resources to support students, scholars, and practitioners worldwide.

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Image credit: Amsterdam by JORGE A. RAMOS C. Creative Commons License via Wikimedia Commons

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The new television show Hannibal resurrects Thomas Harris’s famous serial killer and offers a few new surprises bound to shock both newcomers and longtime fans of Dr. Lecter. So while you’re catching up on the latest incarnation of the series, why not brush up on criminology facts or learn something new about cannibalism?

CRIMINAL PROFILING

How does Will Graham get inside the minds of serial killers?

Criminal Law: The Essentials
By Sue Titus Reid
This brief text will introduce you to the main issues and developments within the field.

Crime Profiles: The Anatomy of Dangerous Persons, Places, and Situations
By Terance D. Miethe, Richard C. McCorkle and Shelley J. Listwan
Learn more about the motivation and design of criminal acts.

Forensic Psychology: A Very Short Introduction
By David Canter
A thorough overview of the field of forensic psychology including a chapter dedicated to how to track down a criminal.

CRIMINAL LAW AND JUSTICE

Jack Crawford’s FBI team doesn’t have the best record for bringing in criminals alive, but what can they expect when brought to justice?

Criminal Law: The Essentials
By Sue Titus Reid
This brief text will introduce you to the main issues and developments within the field.

Minds on Trial: Great Cases in Law and Psychology
By Charles Patrick Ewing and Joseph T. McCann
A behind-the-scenes look into high profile cases with an emphasis on the testimonies of mental health professionals.

Criminal Law
By Sue Titus Reid
A broader overview of criminal law and justice through a modified case by case approach.

The Oxford Handbook of Crime and Criminal Justice
Edited by Michael Tonry
A guide to the American criminal justice system and essential to learn what happens next to the killers caught on the show.

Criminal Law
By Nicola Padfield
Review this concise volume on criminal law before the next big case.

PSYCHIATRY

Do you need to stay ahead of Dr. Lecter’s mind games with the latest developments in psychiatry?

Psychiatry: A Very Short Introduction
By Tom Burns
Test your knowledge on this field and see if you can keep up with Dr. Lecter.

Psychiatry’s contract with society: Concepts, controversies, and consequences
Edited by Dinesh Bhugra, Amit Malik and George Ikkos
Read this to get a better handle on the complicated relationship between doctor and patient (luckily not as complicated as Graham and Lecter’s will be).

SERIAL KILLERS

Where did Thomas Harris get his inspiration from?

Gangsters, Swindlers, Killers, and Thieves: The Lives and Crimes of Fifty American Villains
Edited by Lawrence Block
Learn about the real villains that could have been the inspiration behind some of the characters on the show.

The Oxford Companion to Crime and Mystery Writing
Edited by Rosemary Herbert
Review the entry on serial killers and mass murderers by Marion Swan to see how real life killers inspire our writers.

ANTHROPOPHAGY

How does human flesh taste?

The Man-Eating Myth: Anthropology and Anthropophagy
By William Arens
No book list on Hannibal Lecter would be complete without a few reference books on cannibalism.

The Oxford Companion to the Body
Edited by Colin Blakemore and Sheila Jennett
The entry on cannibalism by W. Arens provides a historical perspective on the anthropophagic nature of ‘others’.

Now that you’re prepared, use your newfound knowledge to solve the next case before Will does!

Kimberly Hernandez is a social media intern at Oxford University Press.

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Image credit: All images from the Hannibal television series copyright NBC. Used for purposes of illustration.

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By Christopher Wogan

In Trade Mark Law: a Practical Anatomy, Jeremy Phillips’ classic analysis of trademarks, Jeremy notes that how a trademark functions depends on “(i) how the trade mark owner uses it and (ii) how the purchaser views it.” The purpose of the trademark system is not only for those who own trademarks and their competitors, but also for those consumers who may or may not choose to use goods and services provided by the trade mark owner.

Trademark law is an interesting field because it is defined not only by legislation and legal books and treaties but also by the uses to which it is put. Trademark lawyers are at the forefront of deciding the legality of issues that affect commerce, companies, and consumers the world over. Do you ever wonder when you ask for a Coke whether what you are really asking for is any carbonated cola beverage or the drink specifically made by Coca-Cola? If you want to stitch your favorite football team’s name on your scarf do you need permission? Trademark lawyers regularly answer and deal with these finer points of intellectual property law.

A group of around 10,000 intellectual property law practitioners and trademark specialists will convene in Dallas, Texas from 4-8 May at the International Trademark Association’s 135th Annual Meeting. They will come together to talk about the latest trademark and intellectual property law issues, to catch up with friends from around the world, and to meet new ones. They will ask themselves how intellectual property and trademarks will evolve in a world that is more commercial and digitally connected than ever before.

Those who have been to the INTA annual meeting before know that it is a five day conference packed with informative panel discussions and networking events. This year’s conference is no different. The program sounds fascinating, with a keynote address from Jerry Jones, Owner, President, and General Manager of the Dallas Cowboys, while the Welcome Reception and INTA Gala are not to be missed.

If you’re wondering what to do when you’re not attending sessions, check out these conference-related happenings:

• Saturday: First-Time Attendee Annual Meeting Orientation. Take full advantage of the INTA Annual Meeting and learn about the resources and opportunities for education, networking, navigating the Exhibition Hall and making the best use of your time. This session is for first-time attendees, as well as new members, who want to learn more about the most recent events and resources available on-site. 3:00 pm–4:00 pm
• Monday: Meet Oxford authors David Stone and Neil Wilkof. From noon onwards you can meet David Stone, author of European Union Design Law and Neil Wilkof, author of Overlapping Intellectual Property Rights at the Oxford University Press booth #815.  Also on Monday evening there is an Academic and Young Practitioner Happy Hour, an excellent networking opportunity for law and paralegal students, practitioners new to trade mark law, professors and adjunct professors to discuss, over cocktails, interesting new trade mark law developments.
• Wednesday: Grand Finale – Gilley’s Dallas. Enjoy your final night of the 2013 Annual Meeting at Gilley’s and get a real taste of Dallas culture. 7:00 pm–11:00 pm

Also, here are a few tips on what to expect when you get to Dallas:

• The weather in Dallas in May will be hot. Expect temperatures to reach between 27-30 degrees Celsius, 80-86 degrees Fahrenheit.
• Accessing the Internet: At the Convention Center, free wi-fi is available for attendees with wi-fi-compliant devices in public spaces such as concourses, food courts and common areas inside the Center.
• Finding your way around: You find can directions to the Dallas Convention Center and take a virtual tour of the Center.
• INTA have posted an orientation video explaining what the conference is like for first-time attendees.

If you are lucky enough to be joining us in Dallas, don’t forget to visit the Oxford University Press booth number 815, where you can browse our award-winning books, pick up a sample copy of one of our intellectual property journals or find out more about the JIPLP competition for 2013 – the $1 billion question!

To follow the latest updates about the INTA Conference as it happens, follow us @OUPAcademic and the hashtag #INTA13. See you in Dallas!

Christopher Wogan is the Marketing Manager for Intellectual Property Law products at Oxford University Press.

Oxford University Press is a leading publisher in intellectual property law including the Journal of Intellectual Property Law & Practice, edited by Professor Jeremy Phillips, and Reports of Patent, Design and Trade Mark Cases, as well as the latest titles from experts in the field, and a wide range of law journals and online products. We publish original works across key areas of study, from trade marks to patents, designs and copyrights, developing outstanding resources to support students, scholars, and practitioners worldwide.

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It is perhaps natural human tendency to think that the big events that occur during our lifetimes — particularly if they involve us personally — are both unique and will change the course of history. Reality though is that most of us aren’t particularly good at predicting what future historians will consider important. Worse, we tend to dramatically exaggerate the importance of events that we have watched occur. Rogoff and Reinhart’s bestselling treatment of the history of sovereign debt has the ironic title This Time is Different precisely because of how often we are wrong in thinking that “this time is different.” Having provided these cautions, I am going to fall into the precise trap I warned against and assert that the period between March 2012 and March 2013 will go down in history as one of the most eventful ever in the history of sovereign debt. This time is different. Why?

There are a number of candidates in terms of potentially game changing events that occurred in the sovereign markets over these past twelve months. As a backdrop to these events, we are in the midst of what is likely one of the most biggest sovereign debt crises in history: the crisis of the euro area.  That crisis, which began with European politicians swearing up and down in 2010 and 2011 that no Eurozone country would ever default, saw Greece, in March 2012 impose one of the biggest and most severe haircuts on private sector creditors in history. Euro area politicians who (like me) seem to have little concern for how historians might subject their statements to ridicule in hindsight are now announcing loudly that the Greek restructuring was “unique and exceptional”.

So much happened within the Greek restructuring that was new, and even when not new, certainly eventful.  Foremost, there were the legislatively mandated Collective Action Clauses that were imposed on local law governed debt instruments. Then was the drama over whether the Greek restructuring was voluntary or not and whether the CDS contracts would be triggered (hard to imagine how anyone could think that a creditor taking a 70% haircut was doing so voluntarily; but that argument was made at various points). And if that was not enough, at the nth hour in the Greek restructuring, the European Central Bank demanded for itself, as a legal right, super priority over all other creditors — essentially the right to be exempt from the restructuring. As a matter of optimal rules for the system, there is probably an argument for Official Sector lending by institutions like the ECB and the IMF to be given super priority. But the ECB’s priority claim, unlike IMF claims in the past, was with respect to bonds that it had purchased on the market just as if it were an ordinary investor. There was a risk, therefore, that investors who had entered the Greek exchange would bring a legal claim against the ECB for having received an illegal priority. As of this writing it is not clear whether any of the claims that have been threatened will bear fruition, but the can of worms regarding the precise contours of Official Sector priority has been opened.

There was more that didn’t make the daily headlines, but will probably make the history books. There was the explicit inclusion of some of Greece’s sovereign guarantees in the restructuring (no one quite understands why some guarantees got ensnared and others escaped completely, but that is a matter for a different day). And then there were was the treatment of the foreign-law bonds in the Greek deal. There was some attempt to extract a haircut from them; but the attempt was half-hearted at best — much more could have been done to turn the screws. Which, in turn, raises the puzzle of why the holders of those foreign-law bonds (many of whom likely go under the moniker “hedge fund”) were treated with such solicitude Literally, the holders of some of these foreign-law bonds were just asked politely whether they would like to restructure and when they said no (some did say yes), they were paid in full and on time. By contrast, the holders of the local-law bonds got taken to the woodshed.

The events in Greece itself would have entitled the past twelve months to go down as one of the most eventful in periods in sovereign debt history. But so much more happened as well. In Ireland, to restructure the debts of one of the banking institutions at the center of that nation’s crisis, the authorities invoked a technique called the Exit Exchange. This technique, through the 1990s, had been used to successfully engineer multiple sovereign debt restructurings (among them, Ecuador, Uruguay and the Dominican Republic). The technique is one that is aimed at, to put it politely, incentivizing holdout creditors to accept a restructuring offer that a majority of other creditors like, but that the holdouts would rather not take. As a legal matter, utilizing the technique has always been a tricky matter, since there is a fine line between deterring holdout creditors from blocking a deal that is in the collective interest of the creditor group and coercing the whole group. In the transactions, the Irish authorities decided to go on an all out attack in terms of the “offer you don’t want to refuse” that they presented creditors with. The debt in question though was governed by English law and an English judge in Assénagon Asset Management v. IBRC decided that the aforementioned line had not only been crossed, but abused and trampled. So much so that he wrote an opinion that called into question the validity of all future uses of the technique. Whether the opinion is followed by other courts is yet to be seen. But I suspect that regardless of how much commentators complain about the Assénagon case, the Exit Exchange technique will never be the same.

In the meantime, while announcing that the Greek restructuring was “unique and exceptional”, the euro area authorities mandated, starting January 1, 2013, what is easily the biggest change in contract language in sovereign debt contracts ever. All Eurozone sovereign debt contracts, regardless of governing law or other provisions, will henceforth (with minor allowances for a transition period) will contain Collective Action Clauses or CACs. These E-CACs in question are the technical devices that Greece imposed on its bonds legislatively so as to be able to engineer its March 2012 restructuring. The Eurozone has put into effect in all bonds for all of its members, much the same mechanism that Greece utilized. There are at least two things about this Euro CAC initiative that are historically significant. First, the reform attempts to change the standard template for not just foreign-law governed bonds (the focus of prior contract reform attempts), but also local-law bonds. Second, the contract terms here are being mandated. Prior to this, sovereigns had always chosen the contract terms that they thought best suited their individual interests.  No longer; at least not in the euro area. The policy decision was made that one size should fit all. It might be a bit puzzling to some of us as to why, given the supposedly “unique and exceptional” character of the Greek restructuring these E-CACs are needed, but only time will tell.

To repeat myself, the foregoing should have been enough to conclude that the past twelve months were the most significant twelve month period in the history of the sovereign debt markets. But we have not gotten to the biggest event of them all — the holdout litigation against Argentina in the Second Circuit Court of Appeals in New York.

The defining feature of sovereign debt, for time immemorial, has been that such debt is near impossible to enforce. Sovereigns, pretty much, have always been able to thumb their nose at creditors whenever they wanted. They pay because they want to, not because they have to. On rare occasions, there have been creditors who were important or big enough that they could get their nation’s gunboats to act as enforcers, but these events have been few and far between. And, in any event, using gunboats to enforce debt isn’t really allowed these days. Indeed, in the academic literature, there is a cottage industry of articles asking the question of why, absent enforcement, anyone in the modern era lends to a sovereign.  Well, all of that may have changed. The seeds of this change were laid in an obscure case in Brussels from a decade ago. The case provided a radical interpretation of a standard provision in sovereign debt contracts that everyone used (the pari passu clause), but almost no one understood. For about a decade or so, the implications of that case were largely dismissed by the pooh bahs of the sovereign market. No one else would follow this outrageous Belgian decision, they said. That is, until October 26, 2012, when the theory from that Brussels litigation found favor with a three-judge panel of the Second Circuit in New York — arguably the most sophisticated court on business matters anywhere. That case, that has been occupying the pages of the financial papers for some time now, and is the centerpiece of the most recent issue of the Capital Markets Law Journal, is NML Capital v. Republic of Argentina.

To reiterate, the basic enforcement problem with sovereigns is that sovereigns themselves are hard to sue and harder still to enforce against (most of their assets tend to be on their home soil). Enterprising creditors though, figured out that while they might not be able to get at the sovereigns themselves, they could perhaps get at others who the sovereigns cared about, who were less able to protect themselves (any fan of movies about the mafia and its enforcement techniques will immediately grasp the basic idea). Ordinarily, we suspect that a court would not have gone down the path of enabling creditor action of this type. But the defendant in this case is special — it is the Republic of Argentina, that (some might say) has been doing its best to aggravate and annoy the federal courts in New York for over a decade where unpaid creditors have been litigation ever since Argentina’s mammoth default a decade ago. NML Capital v. Republic of Argentina allows the creditors to get at the third parties; in particular, financial intermediaries, but maybe also other creditors who the Republic is choosing to pay while stiffing the holdouts. If NML v. Argentina holds up on appeal — and, as of this writing, it has held up well — this will mark the most fundamental change in sovereign debt in multiple centuries. These debts will now be enforceable. It still won’t be easy to enforce, but it won’t be impossible.

To show how this case has already had an impact on the direction of future events, on 4 March 2013, just a few weeks ago, the tiny Caribbean island of Grenada was on the receiving end of a request that third parties be enjoined, just as they were in NML. And this injunction was not sought by some hedge fund in Greenwich, Conecticut. It was requested by the Taiwanese Ex Im Bank. It may not be that long before we see suits against other nations who have long unpaid debts. Rumors of the potential impact of the NML decision seem to have even trickled down to the market for antique bonds. The owner of my favorite antique bond shop tells me that defaulted Chinese and Russian bonds from the early part of the twentieth century have increased in price in recent months; and particularly the ones with pari passu clauses (yes, she said “pari passu”). Somebody out there thinks that the probability of recovery on these bonds has just increased. I do wonder whether their excitement will wane somewhat when they tackle the statute of limitations issue.

And then there is Cyprus. On Friday, 15 March 2013, European leaders trespassed on consecrated ground. They insisted that Cyprus impose losses — euphemistically dubbed a “solidarity levy” — on insured depositors with Cypriot banks as a condition to receiving EU/IMF bailout assistance. Cyprus was in deep crisis thanks to its oversized banking sector. Contrary to anything anyone expected (other than perhaps the nincompoops in the room that Friday night), Cyprus decided not only to go after bank deposits, but also insured deposits. And at the same time, it also decided that it would pay its bonds — a sizeable portion of which were rumored to be held by foreign hedge funds — on time and in full. Faced with almost universal shock and criticism for its first decision, Cyprus quickly backed off its first plan (its legislature did not even give the plan a single vote), and has now put in place an alternate plan that primarily pursue uninsured depositors in some of its weakest banks (for some bizarre reason, the bondholders still get paid in full). It is not clear that the current plan will suffice, given the damage that the announcement of the first plan and the general move toward chasing deposits for debt relief has done to the Cypriot banking sector (the key industry for that small economy). In other words, Cyprus will probably need more debt relief than it had first calculated and the bondholders may yet get whacked. But, for purposes of this note, I’ll say just this: Wow.

This is an updated and expanded version of the Editor’s Note in the current issue of Capital Markets Law Journal.

Mitu Gulati is the North America Regional Editor (March 2013) for Capital Markets Law Journal. He is a Professor at Duke University. His research interests are currently in the evolution of contract language, the history of international financial law and the measurement of judicial behavior.

Capital Markets Law Journal is essential for all serious capital markets practitioners and for academics with an interest in this growing field around the World. It is the first periodical to focus entirely on aspects related to capital markets for lawyers and covers all of the fields within this practice area: Debt; Derivatives; Equity; High Yield Products; Securitisation; and Repackaging. With an international perspective, each issue covers articles and news relevant to the financial centres in the US, Europe and Asia.

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Why compromise? Increasingly in civil litigation there are no winners — not even the lawyers, following the review and implementation of Sir Rupert Jackson’s report into costs. The question is rapidly being re-phrased as “Why litigate?”

Prior to 1 April, lawyers were able to work on a “no win, no fee” basis and recover a percentage uplift and after the event (ATE) insurance premium on top of their fees if the claim was successful. Now not only have the playing field and goal posts changed, but the game itself has, following the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO). Now the resources available for justice are limited, and the needs of the litigant have to be balanced against the resources available. This is recognised in the new overriding objective of the Civil Procedure Rules.

To start with, the funding options for claimants have changed. Now, lawyers cannot recover their success fee or ATE insurance premium from the defendant, but must instead look at other funding options, such as Damages Based Agreements (payment from damages) or Conditional Fee Agreements (where the success fee is taken out of damages, up to a limit). This results in claimant lawyers taking more risk. On the other hand, the changes also affect defendants, such as the 10% increase in general damages, the changes to CPR Part 36 regarding offers to settle, and Qualified One Way Costs Shifting in certain cases (whereby claimants can bring claims without the risk of having to pay the defendants’ costs if they lose). Parties in multi-track cases have to prepare a budget for the Court, estimating what the costs are likely to be in a particular case and the Court then approves a limit. Legal aid is being cut back as well, particularly in family cases, and the Ministry of Justice is under to pressure to cut its budget and to make Court users pay for the Court service. There is a sense in which mediation is being made to fill the void. There is no longer any unfettered right to litigate and mediation is seen as a way of reducing the cases that come before the Court. The former Justice Minister, Jonathan Djanogly was quoted as saying, in the context of family law:

“There’s been a 20% uptake in mediation and we know that of those who go through publicly funded mediation, 70% will have a successful outcome….It’s a cheaper process — one that takes a fifth of the time of going to court and it’s much less contentious…. 90% of people sort out their own problems, but 10% of people go to court. We think less of them should be going to court and more of them taking their own lives into their own hands, and mediation is a way of facilitating that.”

Eighth of Henry Holiday’s original illustrations to “The Hunting of the Snark” by Lewis Carroll. This illustration covers Fit the Sixth: The Barrister’s Dream. The Snark is in the foreground, in barrister’s robe and wig, and is acting to defend his client.

The Civil Procedure Rules have also changed, introducing a new test on proportionality of costs and tougher case management powers and low recoverable fixed costs in personal injury claims which are administered through the “portal.” Faced with these changes, is it any wonder that there is a renewed interest in finding alternative ways to resolve disputes? This is where mediation and other forms of alternative dispute resolution come in. Sir Rupert Jackson is a fan of mediation, judging by his report and recent judgments, so it appears to be coming of age. The Courts are increasingly willing to impose sanctions on those who unreasonably refuse to mediate, or negotiate and the Courts have their own mediation schemes in place, such as the Court of Appeal compulsory referral to mediation scheme. The successful small claims mediation pilot, applying to all non-personal injury small claims in the County Court, is being extended for a further 6 months to September 2013 and now takes in cases issued through the County Court Bulk Centre in Northampton and Money Claims Online. Cases issued with a value of under £5,000 are referred automatically to a Court Service mediator, who will try to save the parties’ and the Court’s time by seeing whether the case can settle. It has been successful so far, reducing the claims that go forward to a small claims hearing by a significant amount, freeing up valuable time to deal with other cases. These mediations take place by telephone and it is likely that online mediation will become increasing common as well.

Many claims could be resolved more quickly and easily through Alternative Dispute Resolution (ADR) and mediation.  In order to succeed, however, parties must be open to compromise and willing to give up their day in Court. Those that choose the alternative path often find it to be more fulfilling and less frustrating than litigation. Looking forward with a crystal ball, it is easy to see why mediation is likely to increase in future. The European Commission is favourable towards ADR, having approved the text of a directive concerning ADR and Online Dispute Resolution between consumers and traders. This follows on from the Mediation Directive, which in cross-border cases, seeks to encourage the uptake of mediation, by both protecting mediators from having to give evidence and ensuring that settlement agreements are enforceable.

The Civil Mediation Council is tentatively looking at whether there is any appetite to widen its scope, to accredit individual mediators, and to possibly set up a Mediation Standards Board, having issued a consultation document seeking views on the future direction. It seems inevitable that with the increased use of mediation, the general public will want to see mediators abiding by a code of professional conduct, like other professionals, and to have a route to complain about a mediator. There are also moves afoot to introduce a business ADR commitment, much like the Dispute Resolution Commitment (DRC), which already requires government departments and agencies to be proactive in the management of disputes, and to use effective, proportionate and appropriate forms of dispute resolution to avoid expensive legal costs or court actions. This includes adopting appropriate dispute resolution clauses in all relevant government contracts.

In order for alternative forms of dispute resolution to take hold, we need a change of culture, so that instead of issuing proceedings, parties consider instructing a mediator to resolve their dispute at the outset. There are a jigsaw of initiatives being introduced to encourage a change of culture and to increase the take up of alternative forms of dispute resolution.

Peter Causton is a solicitor at Berrymans Lace Mawer and commercial mediator. He is a contributor to The Jackson ADR Handbook and a member of the Law Society Civil Justice Committee.

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Image credit: By Henry Holiday (1839-1927) after Lewis Carroll [Real name: Charles Lutwidge Dodgson] (1832-1896). Public domain via Wikimedia Commons.

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Despite the recognized virtues of democratic rule, both for protection of personal rights and liberties and for economic progress, the current list of world governments still classifies 46 of all countries, or 25%, as dictatorships. Rulers in these existing dictatorial regimes resist the transition to democracy, often at a high cost each year in lives and resources. One would hope that the potentially sizeable benefits of democracy could be shared to the mutual advantage of the once ruling elite and the poor majority. The gains are there, why can’t they do a deal? The answer turns on the inability of a new democracy’s poor majority to credibly promise the elite that they will not be exploited once democracy becomes the new order.

Yet, in one of the most important political events of the 20th century, South Africa solved this problem. In April 1994, Nelson Mandela was elected President of the new Republic of South Africa, and on 11 October 1996, a democratic constitution was approved unanimously by the National Parliament with the full support of the once autocratic National Party. In President Mandela’s words the new constitution offered the citizens of South Africa “a democratic government… that (has) an inbuilt mechanism which makes it impossible for one group to suppress the other” (speech by President Mandela, Stellenbosch University, May 1991). That built-in mechanism was federal governance, of a particular kind.

How can federal governance using both democratically-elected national and state or provincial governments provide the essential protections for the elite needed for a peaceful transition from autocracy to democracy? Three elements are necessary. First, having given up political and military control, the old ruling elite will need to find its future influence in another way — through the economy, perhaps. Since land and machines can always be expropriated, it will have to come from the labor skills of the elite that the majority will need but cannot import or master quickly on their own. In South Africa these elite skills were found in the provision of public services, and in particular, in health care, education, and efficient public administration.

Second, the elite must be able to withhold these needed skills if the majority threatens to expropriate elite-owned land, nationalize elite-owned firms, or to set tax rates on income at excessive rates. It is often thought that the elite’s ability to migrate would be a sufficient deterrent to expropriation or excessive taxation. In South Africa, migration from the country has been modest. You cannot take land and machines with you when you leave, and for all but the most talented, comparable jobs in a new homeland may not be readily available.

What then is an alternative way to withhold needed talents? Perhaps a “strike” or a “work slowdown” organized through elite control over the provision of essential government services? But since the elite is now a political minority, it cannot be a country-wide slowdown. However, it can be a slowdown in one important part of the country where middle and upper income households might constitute a political majority. Local political control could be assured by a constitution that creates provincial governments and draws the provincial borders so that first, there are enough new (lower income) majority residents in the province so that the majority-run national government cares what happens to these constituents, but second, not so many that the middle and upper income households lose political control over the province. We call this requirement the Border Constraint and it must hold so that the elite controls at least one or two important provinces in the new democracy. In South Africa, that important province has become the Western Cape, home of Capetown and South Africa’s wine country. Further, so that this local control can be used as a credible deterrent to excessive national taxation, the provinces must be assigned responsibility for providing important public services. We call this requirement the Assignment Constraint. In South Africa, these constitutionally assigned services are primary health care, K-12 education, and the administration of social security payments.

President Bill Clinton with Nelson Mandela, 4 July 1993.
Public Domain via Wikimedia Commons.

Third and finally, the elite-run provinces cannot become economic islands unto themselves, as indeed the National Party had originally proposed during constitutional negotiations. President Mandela and the ANC rejected this approach to federalism by insisting that all important taxing powers remain in the hands of the national government. But without significant taxing powers, how can provincial governments provide important public services? The answer is the last element in the design of the federal constitution: a clearly specified formula for sharing national tax revenues with the provincial governments. In South Africa’s constitution, this formula is called the “Equitable Share” and is recommended each year by a constitutionally protected commission called the Financial and Fiscal Commission composed of representatives from each of the nine provinces.

The elite’s expertise in the provision of important public services, empowered through an appropriately designed federal constitution, gave Nelson Mandela the “inbuilt mechanism” he needed to assure F.W. de Klerk and the National Party that their economic interests could be protected in the new democracy. Having fashioned a federal constitution for South Africa’s democratic transition, and it is holding so far, who has benefitted?

Crime and unemployment remain serious problems, but crime rates are no higher than those in many of the largest US cities and there is a thriving black market for those who are formally unemployed. Taxes on middle and upper income households have increased to finance expanded public services to lower income households, and there remains an important significant inequity in the distribution of education, health care, and infrastructures. All said, while pressures on education and other public services have continued to grow, tax rates are still below our estimates of maximal taxation and there have been no exploitive land transfers or wholesale nationalization of private capital. Adult disability and child mortality rates continue to fall, new lower income housing is being built, school enrollment is up, class sizes are shrinking, and literacy has increased. When we compare what lifetime earnings would have been for the majority of South Africans had apartheid continued (with negative growth!) to earnings today and into the foreseeable future, the typical poor majority resident has become 160,000 Rand ($20,000) richer and the typical elite resident about 350,000 Rand ($45,000) richer over their lifetimes.

To be sure, South Africa continues to face important challenges to its economic and political futures, but there is little doubt that by almost any measure of personal welfare, the average elite and majority resident are better off today than they might have been under the continuation of apartheid. Our argument here is that federal governance, appropriately constructed, made this possible. Perhaps South Africa’s experience holds lessons for others seeking a peaceful transition to a stable democracy.

Robert P. Inman and Daniel L. Rubinfeld are the authors of “Understanding the Democratic Transition in South Africa” in the American Law and Economics Review, which is available to read for free for a limited time. Robert Inman is the Richard K. Mellon Professor of Finance, Economics, and Public Policy at the Wharton School, University of Pennsylvania. Daniel Rubinfeld is the Robert Bridges Professor of Law and Professor of Economics, Emeritus, University of California, Berkeley and Professor of Law, New York University School of Law. Professors Inman and Rubinfeld served as economic advisors to the Financial and Fiscal Commission and to the national government’s Departments of Finance, of Education, and of Welfare on matters of fiscal policy for the period 1994-2000.

The American Law and Economics Review is a refereed journal which maintains the highest scholarly standards and that is accessible to the full range of membership of the American Law and Economics Association, which includes practising lawyers, consultants, and academic lawyers and economists.

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By Charles Townshend

When the ‘global war on terror’ was launched by George W. Bush – closely followed by Tony Blair – after the 9/11 attacks, many people no doubt felt reassured by these leaders’ confidence that they knew the best way to retaliate. Some, though, found the global war concept alarming for several reasons. The notion of a ‘war’ seemed to indicate a wrong-headed belief that overt military action, rather than secret intelligence methods, was an effective response. More seriously, perhaps, this seemed to be a ‘war’ which couldn’t be won. Since it is all but inconceivable that terrorism per se can ever be eliminated by any method, the Bush-Blair crusade looked dangerously like a declaration of permanent war of an Orwellian kind.

President George W. Bush delivers remarks on the Global War on Terror during a visit Wednesday, 19 March 2008, to the Pentagon.

So how was that threat read? In almost apocalyptic terms, the terrorists were said to be driven by mortal hatred of the West and to represent a deadly threat to ‘our way of life’. The first assertion was true as far as it went, the second a patent exaggeration  but one which went largely unchallenged and unexamined. British journalists showed remarkably little inclination to press ministers to explain its logic. (As, for instance, when the Chancellor of the Exchequer allocated £3 billion in the 2003 budget to cover the cost of Britain’s part in the invasion of Iraq — a figure that even then was clearly a wildly optimistic estimate.) It took the passage of nearly a decade, including two fearsomely expensive, destructive, and ineffective ‘real wars’, to undermine it. And it was not a politician but a judge who first pointed out the absurdity of trying to set the threat posed to ‘our way of life’ by terrorist groups on the same level as that posed by the Wehrmacht in 1940.

At last, four years ago, the Foreign Secretary David Miliband broke ranks and accepted that the concept of the war on terror was ‘misleading and mistaken’. Worryingly late in the day, perhaps, but better late than never. The spectre of an unending war seemed to be laid to rest. Miliband specifically criticised the notion of a ‘unified transnational enemy’ that had been evoked in the global war on terror. He had grasped that al-Qaida had not lived up to its billing.

So it came as something of a surprise when David Cameron, who had seemed unconcerned to take up this element of the Blair legacy, reacted to the January attack on the Amenas gas plant in southern Algeria by pronouncing it part of a ‘global threat’. This grim event in the deepest Sahara desert was the work of an extremist Islamist terrorist group linked, like those in Pakistan and Afghanistan, to al-Qaida, whose aim, the prime minister held, was ‘to destroy our way of life’.

If his intention was to counter the risk that the public might dismiss the attack as too distant to be worth serious consideration, fair enough. But the terms he used surely went beyond what was needed for that. He went as far as to label the threat represented by the terrorists ‘existential’. This striking echo of 2001 did not go entirely unchallenged, as it had done a decade previously. This time, journalists with real experience like Jason Burke are around to point out that al-Qaida, reeling from ‘blow after blow’ over the last five years, is only a shadow of the organisation that once did perhaps represent a threat on a global scale. And that, however deadly the Amenas attack, ‘a gas refinery in southern Algeria is not the Pentagon’.

But clearly such perspectives (shared, as Burke pointed out, by the PM’s security experts) do not meet the rhetorical needs of the moment. David Miliband’s key argument was that the more we lump terrorist groups together and draw the battle lines as a simple binary struggle between moderates and extremists, ‘the more we play into the hands of those seeking to unify groups with little in common.’ What seemed by 2009 to have become no more than common sense has now been peremptorily abandoned again.

Jason Burke, maybe too charitably, described Cameron’s rhetoric as ‘dated’. That would in itself not be reassuring, but there seems to be something more going on. Though he specifically rejected the idea of a purely military solution, the prime minister’s emphasis on the ‘ungoverned spaces’ in which terrorists thrive opens up an agenda at least as indefinite as the original war on terror. His undertaking to ‘close down’ such spaces, and acceptance that this would take decades, has revived the spectre of a protracted conflict without proposing any plausible method of ending it. The function of these ‘ungoverned spaces’ is in fact highly doubtful. If such spaces exist — and the concept is highly dispuatble — they may well be useful to terrorist groups, but to suggest that they are crucial is seriously misleading. The fact that the deadliest Islamist attack in Britain was carried out by people from Leeds, Huddersfield, and Aylesbury might of course indicate that Yorkshire and Buckinghamshire are also ‘ungoverned spaces’, but the implications of that would be alarming indeed.

Charles Townshend is Professor of International History at Keele University. He has held fellowships at the National Humanities Center in North Carolina and the Woodrow Wilson International Center in Washington, DC. Amongst his previous publications are Political Violence in Ireland (1983), Making the Peace: public order and public security in modern Britain (1993), and Ireland: the twentieth century (1999). His most recent books are Easter 1916: the Irish rebellion (2005) and When God Made Hell: the British Invasion of Mesopotamia and the Creation of Iraq, 1914-1921 (2010). The second edition of Terrorism: A Very Short Introduction published in 2011.

The Very Short Introductions (VSI) series combines a small format with authoritative analysis and big ideas for hundreds of topic areas. Written by our expert authors, these books can change the way you think about the things that interest you and are the perfect introduction to subjects you previously knew nothing about. Grow your knowledge with OUPblog and the VSI series every Friday and like Very Short Introductions on Facebook.

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Image credit: White House photo by Eric Draper [Public domain], via Wikimedia Commons

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Recently Planned Parenthood announced that it will no longer use the term “choice” to describe what the organization aims to preserve. It’s about time. The weak, consumerist claim of individual choice has never been sufficient to guarantee women what they need — the right to reproduce or not — and to be mothers with dignity and safety.

I was 26 when the Supreme Court’s Roe v. Wade decision legalized abortion in 1973, and like others of my generation assumed that this had settled the matter. I didn’t doubt that Roe v. Wade had established a new order that would change women’s lives forever. The backlash against the civil rights movement was in plain sight then, for example, in the fight against affirmative action, the closing down of Great Society programs, and the growing political attacks on poor mothers who received welfare benefits. Yet many women’s rights activists and others didn’t foresee the long decades of backlash against women’s new sexual and reproductive freedoms that lay ahead. Few understood at the time what would be involved to achieve reproductive freedom for women across race and class lines.

In the 1970s, the Supreme Court’s legalization of contraception for unmarried persons, along with its legalization of abortion, did seem to define “reproductive politics” as a matter of individual choices about pregnancy. It wasn’t long, however, before “choice” didn’t seem to capture what was at issue. For example, reports emerged about how some physicians routinely sterilized poor women — often women of color — without their knowledge and their “informed consent.” Manufacturers of birth control pills and IUD’s were pressured to provide full information about a range of bad side effects. Welfare laws arbitrarily excluded poor women accused of having too many children.

Debates about public funding of reproductive health services, beginning almost immediately after Roe, also revealed the insufficiency of “choice,” as have disputes about the role of religion in civic life; about what constitutes the family and its “values;” about the environment, toxicity, and population growth; and about the potential and dangers of science and technology. In short, “reproductive politics” doesn’t submit to simple mapping and extends far beyond “choice.”

This was predictable, considering how laws, policies, and court decisions have over time allowed various authorities to treat the reproductive capacities of different groups of women differently, valuing and ennobling the reproductive lives of some women while degrading others. Nineteenth-century laws governing the fertility of enslaved Africans, for example, facilitated the origins and maintenance of the slavery system. Laws and policies regulating female fertility have provided mechanisms for achieving immigration, eugenic, welfare, and adoption goals as well as supporting or hindering women’s aspirations for first-class citizenship. In the mid-twentieth century, some (white) women were constituted as good choice-makers while others (poor, women of color) were routinely regarded as bad choice-makers who produced expensive, undesirable children.

Many Americans have accepted the Supreme Court rulings fully legalizing contraception and largely legalizing abortion. Other Americans have, of course, worked against these decisions for four decades. Legislators across the country debate, enact, or reject laws regarding the status and rights of the fetus. They define whether a pregnant woman who has used a controlled substance requires criminal prosecution or medical treatment and whether the state should limit, deny, or provide assistance to poor women who become mothers.

Debates continue over whether “emergency contraception” amounts to abortion; whether the state has the right to mandate a “vaginal probe” before granting a woman her right to abortion; whether the new health insurance exchanges should include or exclude specific reproductive services; whether all babies born in the United States are US citizens; whether gay, lesbian, queer, and transgendered persons, as well as disabled people, have the same rights to parenthood, variously achieved, as heterosexual persons; and whether the relationship between rules governing “gestational carriers” (surrogate mothers) and their clients are public business or private matters. Indeed, all kinds of questions about who gets to be a legitimate mother in the United States, who does not and who decides, transcend “choice,” continue to resist resolution, and shape national politics.

Rather than constituting private matters involving individual choices, reproductive politics involves large social, economic, and political structures. In 2010 the fate of the entire federal health care reform project — passing legislation to ensure care for up to 51 million uninsured Americans — hinged on excluding abortion coverage. In 2011, state legislatures considered hundreds of bills restricting or ending long-established reproductive services and passed a number of them. Meanwhile in the United States, one out of every two women of childbearing age has experienced at least one unintended pregnancy, and low-income women are four times more likely to have this experience than middle-class women. Sexually transmitted infections, some of which can lead to infertility, have been called a “hidden epidemic” affecting all of our communities, while funding for reproductive health services is uniquely threatened.

It remains to be seen if Planned Parenthood and other organizations can convince Americans to replace the idea of individual “choice” with a new concept such as “reproductive justice,” a term that points toward what every woman needs when she decide whether or not to get pregnant, to stay pregnant, and to be a mother.

Rickie Solinger is a historian and curator. She has written and edited a number of books about reproductive politics, including Reproductive Politics: What Everyone Needs to Know, Wake Up Little Susie: Single Pregnancy and Race before Roe v. Wade and Beggars and Choosers: How the Politics of Choice Shapes Adoption, Abortion, and Welfare in the U.S. Solinger has organized exhibitions that have traveled to 140 college and university galleries over the past eighteen years. She lives in the Hudson Valley and New York City.

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Image Credits: (1) Pro-choice demonstrators. Photo by internets_dairy’s. Creative Commons Licence via Wikimedia Commons. (2) Planned Parenthood volunteers. Photo by ProgressOhio. Creative Commons Licence via Wikimedia Commons.

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I have been pondering this question since asking my seven-year-old son (who for the record is not an environmental law scholar) what Earth Day was about and he told me ‘That’s the day you think about climate change and stuff’. His description might not be the most accurate and Earth Day has a complex history, but he is correct in the general sentiment. The problem of course, is that like all environmental law scholars, I am thinking ‘about climate change and stuff’ every day and so having a special day to think about these issues seems a bit gratuitous.

Or maybe not. Earth Day, if it is anything for a scholar, is a day to take stock and reflect on how environmental protection policy and law have evolved over four decades. That reflective process is not as easy as most would think; the speed and scale of environmental debate often leaves scholars, decision-makers, and ordinary people with little time to think about the bigger picture. Different areas of environmental law have become specialized and compartmentalized. There is no such thing as a generalist environmental lawyer or environmental law scholar anymore; rather there are experts working in specialist areas of environmental protection. In such circumstances it becomes very difficult to see how environmental law has evolved overall. So let me use this Earth Day to reflect on that process of evolution and progression.

The first thing to note is that the process of evolution in relation to environmental law and policy has not been linear. The first Earth Day in 1970, celebrated primarily in the US, was at a time when there was bipartisan support for environmental protection in many Western jurisdictions. Much of this arose out of the appreciation that environment degradation placed real limits on economic growth. That appreciation developed into the concept of sustainable development with the Bruntland report in 1988 and the Rio Conference on Environment and Development in 1992. The situation now is far more complex. On the one hand, there have been the development of quite ambitious environmental law regimes; the UK Climate Change Act 2008 is a good example. On the other hand, environmental protection has less political traction than it once did and there is now a perception that environmental law, not environmental problems, provides limits on growth. Another example is public participation. While it is recognized as an important feature of regulatory regimes in theory, that does does not mean that it is an accepted part of the landscape in practice.

Paysage à Port-Goulphar, Claude Monet, 1886. Art Institute of Chicago.

Second, it is clear that over time the governance structures for environmental decision-making have become more polycentric and require a more nuanced account of governance structures. Within any one jurisdiction, a number of different regimes that address different issues will exist and these will overlap and interrelate. Likewise, the national, transnational, and international levels of environmental regulation interact in complex ways. Thus for example, the nature of regulatory competition in the environmental context is multi-dimensional and national decisions about nuclear energy don’t take place in a jurisdictional bubble.

Finally, environmental law scholars must really get to grips with the legal detail. We must dig deep into the infrastructure planning regime so as to understand what role public participation is really playing in that context. You cannot understand the prospects of the Climate Change Act 2008 without understanding the legal and political nature of devolution. Scholars must move past simple understandings of regulatory competition. The evolution of environmental law is thus really about its increasingly complexity, and thus the need for greater expertise on the part of legal scholars. This of course is one of the reasons for the compartmentalization of the subject; it is hard to foster expertise right across the vast landscape of environmental law.

Such fragmentation and specialization does not mean that environmental law scholars in different areas cannot and should not communicate with each other. Rather the challenges of interacting across these specialized areas need to be faced head on. Likewise, any attempt to develop overarching approaches to environmental law should not be at the expense of the legal detail.

So all in all there is great merit in my son’s perception of Earth Day. There is a lot of ‘stuff’ to think about, and think hard about. That ‘stuff’ requires careful and critical reflection and the process of thinking is by no means easy. That of course makes Earth Day important for environmental law scholars.

Liz Fisher is General Editor of the Journal of Environmental Law. Read a special collection of journals articles for Earth Day.

Condensing essential information into just three issues a year, the Journal of Environmental Law has become an authoritative source of informed analysis for all those who have any dealings in this vital field of legal study. The journal exists for both legal practitioners and academics, but also proves accessible for all other groups concerned with the environment, from scientists to planners.

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The Max Planck Encyclopedia of Public International Law is a comprehensive online resource containing peer-reviewed articles on every aspect of public international law. Written and edited by an incomparable team of over 800 scholars and practitioners, published in partnership with the Max Planck Institute for Comparative Public Law and International Law, and updated through-out the year, this major reference work is essential for anyone researching or teaching international law. The articles in the quiz above are available to read for free for a limited time.

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How was Learned Hand influential in the practice of law?

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How did Learned Hand differ from Justice Felix Frankfurter?

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Did Learned Hand ever expect that his correspondences to be published?

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How were you inspired to compile his correspondences?

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Constance Jordan is Professor of English and Comparative Literature Emerita at Claremont Graduate University. Jordan has published many books and articles on the subject of literature and the law. She is editor of Reason and Imagination: The Selected Letters of Learned Hand and Learned Hand’s granddaughter.

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I often think that we learn more from the experiences of those whose lives are different from our own than we do from those who share our experiences. Distance often confers clarity and gives a greater appreciation of context, enabling similarities and differences to become visible. This occurred to me recently as the news of the increasing measles epidemic in Swansea began to grow more alarming. What on earth, you might ask, has this to do with policing? Well, quite a lot.

The origin of this measles epidemic is widely attributed to a controversy that erupted in medicine in the late 1990s. Dr Andrew Wakefield published an article in the Lancet claiming to have found an association between the MMR (measles, mumps and rubella) vaccine and autism. This initiated a media–hyped panic which prompted parents to become wary of having their children vaccinated. In due course, the panic abated, Dr Wakefield’s claims were investigated and refuted, and the Lancet article was retracted. However, what remained was a pool of unvaccinated children who were growing into adolescence and it is feared that it is the existence of this pool of vulnerable young people that has created the conditions in which the current epidemic has flourished.

On the face of it, this is a catastrophic failure. Dr Wakefield’s research was described as “fraudulent” by the British Medical Journal and the General Medical Council found him guilty of breaches of the code of medical ethics for which he was struck off the Medical Register in 2010. However, was the Lancet to blame for publishing research that turned out to be erroneous? Most definitely not!

Bust of Sir Karl Raimund Popper, University of Vienna, Austria. Photo by Flor4U. Creative Commons license via Wikimedia Commons.

The logic of scientific discovery, as the eminent philosopher of science — Sir Karl Popper — reminds us in his book with that title is one of conjecture and refutation. The whole point of science is that it advances by people making what appear to be wildly counter–intuitive, even outlandish, suggestions that resist all attempts to refute them. The history of science is littered with names now elevated to the status of secular sainthood, whose theories contradicted the verities of their age and disturbed and outraged informed opinion. Ignaz Semmelweishad the effrontery to suggest that patients were dying in hospital because doctors failed to wash their hands before touching them. For this he was hounded out of Vienna and eventually died an ignominious death. Semmelweis was right and his legacy is that device on the hospital wall that invites all visitors to clean their hands with antiseptic before entry. Because a hypothesis is unpopular does not mean that it is wrong.

The genuine problem for medicine is how it can remain open to controversial hypotheses — most of which will be wrong, but occasionally one of them will be correct and spark improvements in health care — whilst avoiding creating needless panic and the disastrous consequences that may continue to be felt decades afterwards.

This too is a problem for evidence-based policing, which is self–consciously, and correctly, modelled on scientific methods. Let us take an example: in good faith forensic scientists a hundred years ago asserted the infallibility of fingerprints as evidence of identification. On that basis, numerous criminals have been convicted and imprisoned; doubtless, some of them were executed. Now, and for some years past, the infallibility of fingerprint evidence has been questioned by, amongst others, Dr Itiel Dror at the University of Southampton Management School.

The grounds for his scepticism lie not in the biology of unique fingerprints, but in the psychological process of deciding whether two prints match, especially when one of them is a partial “latent” print found at the scene of a crime. He has conducted experiments in which forensic scientists are asked to match prints under varying conditions and his results are, to say the least, disturbing. If he is right, should we throw open the prison gates and allow out all those whose convictions rested on fingerprint evidence, especially if some of those are terrorists or serial murderers? Or should the scientific establishment seek to smother Dr Dror’s outrageous conjecture, taking their lead from the physicians of 19th century Vienna? It is a dilemma, just like the dilemma over Dr Wakefield’s hypothesis. Real lives may be at stake.

The criminal justice system is intolerant of error. It erects huge obstacles (the burden and standard of proof) to securing a verdict of “guilty”. When error is detected, scandal ensues, public confidence is damaged, scapegoats are paraded, reviews are initiated and revisions to procedures are made to ensure that no such calamity can be repeated. On the other hand, science thrives on error. It was the inability of Newtonian physics to fully explain the orbit of Mercury that prompted Einstein’s theory of relativity. Geneticists used to think that most DNA was “junk,” but latest developments have shown that, on the contrary, it is essential.

Could the shibboleths of our justice system withstand the scepticism of science? Could it survive in an environment in which truth was only ever asserted provisionally and remained open to refutation? Perhaps, like the physicians of Vienna, we must learn to do things differently. If so, that goes well beyond washing our hands!

P.A.J. Waddington is Professor of Social Policy, Hon. Director, Central Institute for the Study of Public Protection, The University of Wolverhampton. He is a general editor for Policing.

A leading policy and practice publication aimed at senior police officers, policy makers, and academics, Policing contains in-depth comment and critical analysis on a wide range of topics including current ACPO policy, police reform, political and legal developments, training and education, specialist operations, accountability, and human rights.

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Ten years after the capture of Baghdad on 5 April 2003 by US troops, following an invasion of Iraq by US and UK forces, we are still awaiting the outcome of the Chilcot Inquiry which was set up by the government of Gordon Brown in 2009. The report has been delayed at least until the end of 2013 due to the reluctance of the government to release key documents, but the outcome as regards the illegality of the invasion should not be in doubt.

Any student of international law, and the laws governing the use of force in particular (the jus ad bellum), knows the recognized exceptions to the prohibition on the use of force (self-defence and enforcement action taken under the authority of the UN Security Council) and that attempts by the US and the UK to fit their actions of 2003 into these exceptions were either exercises in political hubris or damage limitation by skilled lawyers. Rather than rehearse these debates, I’ll attempt to lay out a path to a clearer understanding of the Security Council as a recognized source of authority for using force (The invasion of Iraq was purportedly undertaken under the authority of that organ to enforce disarmament resolutions of that very same organ.) Given the calamitous effects of the ill-judged invasion of Iraq in 2003, where no Weapons of Mass Destruction were found, we should have expected profound changes in the work of the Security Council and the attitude of the permanent members towards collective security.

There has been some evidence of positive change. The main protagonists in favour of the use of military force against Libya in the spring of 2011, France and the UK, were clearly mindful of the lessons from Iraq, taking care that their actions were underpinned by legality by securing a clear authorising resolution (Resolution 1973) from the Security Council. This suggested a return to respect for the jus ad bellum but, as the operation against Libya unfolded, it became clear that some of the problems that undermined the legality and legitimacy of the invasion of Iraq remain.

Resolution 1973 contained an enforceable no-fly zone, a measure that had been mooted since early in the Libyan crisis, but it also allowed NATO states to go further and take military action to protect civilians, leading to an on-going debate as to whether this could include the targeting of Gaddafi and his forces even when they were not attacking or about to attack civilians.

Thus, even though there was a clear and current authorisation to use force against Libya, there were shades of the debate that occurred in 2003 in relation to Iraq concerning the interpretation of older resolutions going back to Resolution 678 of November 1990. Nevertheless, there is a vast difference between the argument made by the UK in relation to Iraq in 2003 — namely that a 1990 authorisation to use force to implement Security Council resolutions in the context of removing Iraq from Kuwait was somehow still a valid authorisation 13 years later for invading Iraq and removing Saddam Hussein — and the interpretation of a Resolution adopted in March 2011 sanctioning necessary measures in Libya, which was being implemented by states within a week of its adoption by the Security Council.

U.S. Army Soldiers from the last convoy out of Iraq line up to turn in their weapons and other equipment after completing the last mission of the nearly nine-year war in Iraq, at Camp Virginia, Kuwait, Dec. 18, 2011. (U.S. Army photo by Capt. Michael Lovas/Released)

The legal basis for the Libyan action was much stronger, but the Libyan operation didn’t eliminate fundamental problems within the UN collective security system so starkly revealed by the Iraq crisis of 2003. The system is rudimentary and depends upon political consensus between the five permanent members (P5) being present. Such consensus was achievable in March 2011 but not in March 2003. However, as with Resolution 678 (1990) in the case of Iraq, Resolution 1973 (2011) was to be the only source of authority for the use of force against Libya and, therefore, was subject to greater and greater demands placed upon it, stretching the Resolution beyond its meaning and contrary to the collective understanding of that resolution.

This process of deliberate misinterpretation by those permanent members wanting to act under the authorising resolution happened over a much longer period of time in the Iraq crisis, not only as regards the only clear authorisation for the force against Iraq in 1991 (Resolution 678), but also Resolution 1441 (2002) adopted in the build-up to the invasion of 2003, where the consensus in the Security Council was that it fell short of authorising force, particularly as it didn’t contain any authorisation of ‘necessary measures’. Let’s hope that there is no attempt by the US and others to reach back to 1950 to resurrect the authorising resolution against North Korea (Resolution 83), though recent discussion about possible breakdowns in the Korean War armistice is a worrying sign.

The change in the Security Council in 2011 that brought the P5 together sufficiently to adopt an authoring resolution appears to have been helped by the emergence in the early 21^st century of the idea that there is a responsibility to protect (R2P) on the part of the international community, when a state has failed to protect its population from crimes against humanity or other similar egregious acts. The UN World Summit Outcome Document of 2005 seemed to place this responsibility on the Security Council if a state had failed to protect its own population. Although Resolution  1973 did invoke some of the language of R2P in condemning the Libyan regime, it clearly didn’t represent the development of a positive duty to act on the Security Council as the Council’s failure to act in the case of Syria shows. Crimes against humanity and systematic war crimes are being committed in Syria in a spiralling blood bath. Indeed an Independent Commission of Inquiry on Syria  reported that crimes against humanity were being committed in Syria in 2011. We are now in 2013 and the situation, if anything, has got worse.

What started out in appearance at least, as an application of the emerging R2P doctrine to protect civilians in Libya based on a clear Security Council mandate, was within a few weeks heading towards another instance of illegal regime change as in Iraq in 2003, with all the problems that entailed. Unfortunately, the unwillingness of those permanent members using force in Libya (UK and France with the assistance of the US) to learn all the lessons of Iraq, by abusing the mandate given to them, has meant that those permanent members that normally advocate non-intervention (Russia and China) have a reason to block any move towards a resolution that authorises necessary measures, or indeed, remembering Iraq, any resolution that might be so construed. The temporary coming together of the permanent membership in March 2011 has proved to be the exception as the people of Syria know to their cost.

What’s the solution to such an unreliable, but central, component of the collective security order and the jus ad bellum? Reform of the Security Council? Definitely. Restrictions on the use of the veto? Certainly. For instance, if the Security Council were to be extended by the addition of new permanent members then three negative votes should be required for any decision to be blocked. But until all of that, and more, is achieved the Security Council and its permanent members must remember that when they cannot agree on military action action, they should at least agree at least on a common diplomatic and non-forcible approach to any crisis, including targeted sanctions, if they are to retain primary responsibility for peace and security.

 Nigel D. White is a Professor of Public International Law at the University of Nottingham in the UK. He has written extensively on the United Nations, collective security and the international laws governing the use of force. His most recent book Democracy Goes to War: British Military Deployments under International Law was published by Oxford University Press in 2009, looks at the role international law plays in the political decision-making of the United Kingdom. He is Co-Editor of the Journal of Conflict and Security Law published by Oxford University Press.

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On Tuesday, 2 April 2013, after seven years of discussions and negotiations, the United Nations General Assembly adopted the UN Arms Trade Treaty by an overwhelming margin — the first ever global agreement governing the transfer of conventional arms. A total of 154 States voted in favour of the resolution, three voted against, and 23 abstained. The treaty will now be opened for signature on 3 June 2013.

The treaty is a strong and balanced text that clearly enjoys very widespread support, and if adhered to and implemented in good faith it will significantly reduce the humanitarian impact from the irresponsible transfer of weapons. That it is a meaningful treaty is evidenced by the fact that in two successive diplomatic conferences, certain States blocked its adoption by consensus. First time around, in July 2012, it was the United States (followed by Russia) that asked for more time. In the ‘final’ diplomatic conference in late March 2013, three States — Iran, DPR Korea, and Syria — blocked the adoption of the text that had been skillfully negotiated by the new Conference President, Ambassador Peter Woolacott of Australia. These same three States went on to vote against the General Assembly resolution that adopted the treaty.

So what does the treaty provide? First, its scope is broad, covering most (though not quite all) conventional arms, ammunition and munitions, and parts and components of arms. Thus, the treaty covers tanks, armored combat vehicles, large-caliber artillery systems, combat aircraft, attack helicopters, warships, missiles and missile launchers, and small arms and light weapons, as well as the ammunition and munitions that are fired, launched, or dropped by all these weapons. Parts and components of arms are covered, but not those of ammunition/munitions. Somewhat strangely, the treaty does not apply to hand grenades or landmines.

Furthermore, despite occasional assertions to the contrary, the treaty does apply to the transfer of unmanned aerial vehicles (drones), at least when they are armed, as in this case they fall under the definition of combat aircraft. This is consistent with the coverage of the UN Register of Conventional Arms (UNROCA) and the discussions in the 2006 Group of Governmental Experts on the UNROCA. It also applies to armored vehicles that take more than four soldiers (despite press reports to the contrary), so the United Kingdom’s supply of ‘less-lethal’ weaponry to the Syrian rebels would be subject to the provisions of the treaty setting out prohibitions on transfer.

However, whether the treaty applies only to sale or also to gifts or loans was left deliberately ambiguous. China was insistent that the treaty not cover more than sale. Many other states sought to insist that it did. What is clear is that on the basis of pacta sunt servanda (the duty to apply and implement a treaty in good faith), no state party could simply seek to avoid the ambit of the treaty by listing all its transfers of conventional arms as ‘gifts’.

Despite calls by many States, the treaty does not explicitly prohibit any transfer to any armed non-state actor. Arguably, however, transfers to ANSAs are unlawful under the prohibition in Article 2(4) of the United Nations Charter, which is brought under the scope of the treaty by Article 6(2) (‘international agreements’ to which a State Party to the ATT is also party). Arguably, Article 6(2) also incorporates human rights treaties to which a State Party to the ATT is also party. This was stated by 100 States in a joint declaration following the adoption of the treaty at the UN General Assembly.

The treaty prohibits the transfer of any arms and ammunition/munitions within its scope that would be used in the commission of genocide, crimes against humanity, or war crimes (in non-international as well as international armed conflicts). This includes targeting civilian objects or civilians ‘protected as such’ (i.e. where they are not participating actively/directly in hostilities), as well as serious violations of Common Article 3 to the 1949 Geneva Conventions. Reflecting customary law as set out in Article 16 of the International Law Commission draft Articles on State responsibility for internationally wrongful acts, this provision could become an important norm of custom in and of itself in years to come. The intent standard suggested by the ILC (‘for the purpose of’) has rightly been replaced by a knowledge threshold (‘where a State has knowledge that’ the arms etc. ‘would’ be so used), consonant with the customary standard for individual responsibility under international criminal law (the 1998 Rome Statute of the International Criminal Court aside) as well as for State responsibility itself.

The precise standard of ‘overriding’ risk for the prohibitions set out in Article 7 to apply (serious violations of either international humanitarian law or human rights law) remains vague. It probably, though, requires a very significant potential contribution to peace and security to override the potential negative consequences.

There is a general obligation to ‘take measures necessary’ to implement the treaty (Art. 5(5)), as well as to ‘establish and maintain’ a national control system (Art. 5(2)). Reporting on measures to implement the treaty is obligatory (Art. 13(1)). Reporting on ‘authorized or actual exports or imports of arms’ (but not ammunition/munitions) is similarly obligatory but ‘commercially sensitive or national security information’ may be excluded (Art. 13(3)). There is, though, no specific obligation to penalize violations of the treaty. The obligation is only to ‘take appropriate measures to enforce national laws and regulations that implement’ the treaty (Art. 14).

The first Conference of States Parties will occur within a year of the treaty’s entry into force. The Conference will decide on the frequency of subsequent CSPs (Art. 17(1)). A provisional secretariat will be established prior to the first Conference of States Parties (Art. 18(1)). The location of the Secretariat is not fixed under the treaty.

Amendments may, as ‘a last resort’, be adopted by a three-quarter majority of States Parties present at voting at a CSP. The first amendments may only be proposed six years after entry into force of the treaty.

Finally, States Parties may conclude or continue to implement other agreements as long as the obligations are ‘consistent’ with the treaty (Art. 26(1)), and defense cooperation agreements may not be voided by reference to the Arms Trade Treaty (Art. 26(1)). This clause, proposed forcefully by India, was hard fought over, and it is ironic that India has announced that it will now not sign the treaty.

In sum, though, States and civil society may justly be proud of the Arms Trade Treaty they worked so hard to achieve. As Mexico stated in the General Assembly, however, ‘the hard work starts now.’

Stuart Casey-Maslen is Head of Research at the Geneva Academy of International Humanitarian Law and Human Rights. He is co-editor of The Convention on Cluster Munitions: A Commentary.

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The indication that an ordinary string of rare book thefts has evolved into a terrifying string of rare book thefts often comes down to this: the presence of a man whose sole job it is to get rid of library ownership marks. No other single trait indicates as certainly that a theft ring has moved from the amateur to the professional ranks. So while it seems encouraging that five people involved in the Girolamini Library thefts have been sentenced for their crimes, it had better only be the beginning of people being prosecuted. One of the men charged two months ago with playing a part in the scheme was a Bologna bookbinder whose job was to scrub books of their marks — and his presence, like that of a single cockroach, signals a much larger problem.

Almost all library books are marked in some way by their owner institution, usually with one of three types of stamp: ink, emboss or perforation. There are also a host of secondary identification marks, including bookplates pasted inside the front cover and cataloguing information written on the title page or gutter. All of these must be destroyed for a professional thief to feel safe.

Solo thieves — the dreaded one-man-bands of the cultural heritage theft world — do this work themselves, the results of which are often poor. Because these guys have to spend a lot of time worrying about the thefts and the sales, they often give short shrift to the most tedious part of the job, making a hash of it with unsightly, value-killing blemishes — an easy thing to do when mixing bleaching agents and hot irons with paper that is often centuries old. So theft rings that grow to a certain size either develop from amidst their ranks men who have an aptitude for the task, or they simply hire people whose job it is to work with old books.

The American book theft ring I write about in Thieves of Book Row was very particular about scrubbing its books of library markings. It employed a small army of men to steal from America’s libraries to feed the Manhattan book trade, but warned these men against tinkering with book stamps. A botched field-scrub could ruin the value of book — and was, counter-intuitively, an even more tell-tale sign of theft than even the presence of a library stamp, which could often be explained away. Book cleaning was done by a few trusted individuals; in the case of particularly tricky marks, like perforated stamps, the work could be outsourced to England.

This is almost certainly what happened in Italy. A Bolognese bookbinder, who could be trusted both to work with old paper and to keep his mouth shut, would be a go-to guy for tough marks. He would know how to clean pages or, if needed, get rid of them altogether, replacing the marked leaves with either close copies from other editions or pages manufactured expressly for the purpose. This is an act known in the book world as “sophisticating,” and a really fine job of it requires the touch of a craftsman.

The worst news is, like any cottage industry that becomes successful enough to hire specialists, book theft rings that employ task-specific men soon need a guaranteed supply to justify their expense. It’s a feedback loop that all but guarantees that the Girolamini Library arrests and prosecutions have barely scratched the surface.

Travis McDade is Curator of Law Rare Books at the University of Illinois College of Law. He is the author of the upcoming Thieves of Book Row: New York’s Most Notorious Rare Book Ring and the Man Who Stopped It and The Book Thief: The True Crimes of Daniel Spiegelman. He teaches a class called “Rare Books, Crime & Punishment.” Read his previous blog posts: “Barry Landau’s coat pockets” ; “The difficulty of insider book theft” ; and “Barry Landau and the grim decade of archives theft”. 

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Derided by a number of major military powers when it was adopted, almost 16 years later the 1997 Anti-Personnel Mine Ban Convention is in pretty rude health. No fewer than 161 States have adhered to its provisions — the most recent being Poland in December 2012 – and few outside dare to use anti-personnel mines these days such is the stigmatisation of the weapon, even though a ban has not yet crystallised in customary law. There is little or no transfer of anti-personnel mines, and what little there is consists mainly of small-scale, illicit sales. As a result, large stockpiles in China and the USA lie dormant, and even Russia is no longer laying mines in Chechnya, so far as we know.

Of course, challenges remain in implementing the treaty. Assistance to mine victims has made relatively little headway in recent years, frustrated by trials and tribulations in overcoming institutional weaknesses in health systems in many post-conflict nations. Progress in mine clearance has been especially disappointing, with two dozen States being forced to request extensions to their 10-year treaty deadlines, and this despite the fact that many had to confront only limited contamination. The United Kingdom has even implied that the clearance requirements only apply to developing nations with significant numbers of casualties, a perverted reading of its international legal obligations (which most certainly extend to mined areas on the Falkland Islands). At the same time, non-party States China, Nepal, and the USA have cleared most, if not all of the mines on territory under their jurisdiction, so the treaty has had a broader normative impact.

Furthermore, if donors are as generous over the next decade or so as they have been over the last 20 years, the world should still be all but cleared of landmines by 2022 — only 25 years since the adoption of the Anti-Personnel Mine Ban Convention. That’s no mean achievement, even though it should have been possible sooner and at a much cheaper cost than the estimated $10 billion or so it will likely have cost. Regrettably many countries and operators still commit precious clearance assets to areas without any contamination as their survey capacity and risk management abilities are lacking. National capacity building has been more a tool of rhetoric than an on-the-ground reality.

So what are the treaty’s broader lessons for disarmament? The Convention, which entered into force on 1 March 1999, was the result of the ‘Ottawa Process’, a freestanding treaty negotiation outside a United Nations (UN)-facilitated forum with the aim of outlawing anti-personnel mines. The process was so called because it was launched in Ottawa in October 1996 by Lloyd Axworthy, the Canadian Minister of Foreign Affairs. Axworthy and his staff had seen that progress towards a ban was doomed to be thwarted by the tradition of consensus within UN disarmament fora, notably the Convention on Certain Conventional Weapons (CCW). After three years of negotiations, the CCW was only able to agree on a complex set of additional restrictions that did not even require all mines to be self-destructing and/or self-deactivating. In contrast, the Anti-Personnel Mine Ban Convention was negotiated from start to finish in less than a year.

Party states to the Ottawa Treaty via Wikimedia Commons.

Sadly, two decades later, little has changed in the disarmament world. The only weapon that has been banned since 1997, cluster munitions, was similarly the result of a freestanding process, this time led by Norway, after the CCW had again failed to act forcefully. Ironically, once the Convention on Cluster Munitions (CCM) had been adopted in Dublin in 2008, a number of States, led by the USA, sought to adopt a protocol to the CCW restricting the weapon for those planning not to adhere to the CCM in the near to medium term. But by then it was too little, too late, and some ham-fisted diplomacy resulted in no agreement.

It seems likely that future weapons law treaties will also have to go outside the United Nations if they are to be adopted (unless inroads can be made into the tyrannical consensus ‘rule’). For getting 193 Member States to agree to ban or restrict anything remotely useful in military terms is a challenge that will rarely be met in practice. Anti-vehicle mines, explosive weapons with wide area effects, tasers and other ‘less-lethal’ weapons, and even nuclear weapons are all on the agenda for greater regulation in years to come. But there’s little prospect of any agreement being made in consensus fora, such as the Conference on Disarmament or UN disarmament mechanisms.

Perhaps some normative progress can be achieved under the auspices of the Human Rights Council, notably with regard to the use of certain weapons outside situations of armed conflict. Otherwise, it remains to a State or core group of States to take the initiative, and then it’s every State for itself and the Devil take the hindmost (to paraphrase). In this, the 1997 Anti-Personnel Mine Ban Convention just reflects the traditional method of adopting weapons law treaties in the late nineteenth century and early twentieth. So maybe it’s just a return to the rule, proving that disarmament within the UN is a mere exception.

Stuart Casey-Maslen is Head of Research at the Geneva Academy of International Humanitarian Law and Human Rights. He is author of Commentaries on Arms Control Treaties, Volume 1: The Convention on the Prohibition of the Use, Stockpiling, Production, and Transfer of Anti-Personnel Mines and on their Destruction and co-editor of The Convention on Cluster Munitions: A Commentary.

Oxford University Press is a leading publisher in Public International Law, including the Max Planck Encyclopedia of Public International Law, latest titles from thought leaders in the field, and a wide range of law journals and online products. We publish original works across key areas of study, from humanitarian to international economic to environmental law, developing outstanding resources to support students, scholars, and practitioners worldwide.

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In January 2013 the Daily Telegraph ran a story on the refusal of the inhabitants of the famed old neighbourhood of Montmartre, in Paris, to accept the arrival in their midst for the first time of a Starbucks coffee shop. The Paris Pride heritage association denounced this “attack on the place’s soul.” A resident said “we must do everything to stop this disfiguring, as it opens the door to any old rubbish.” Twenty years previously, said local sources, McDonald’s had tried to open, but they had been forced out. Now the invader was back, just with a different disguise.

What is it about these world-wide American food and drink experiences which can still set off such resistance in local communities wherever they choose to land? Of course this is by no means a universal reaction, in time or place, otherwise there would not be 1,700 Starbucks shops across Europe (including Russia), or 7,300 McDonald’s restaurants, with more coming even in the crisis. But the multi-faceted power of these companies, and their apparently unstoppable will to expansion, has provoked a variety of antagonisms over the years. Starbucks’ historian, Bryant Simon, talks of ‘pushback’. More serious is the ‘brand backlash’ that a New York Times correspondent saw in the targeting of McDonald’s around the world at the time of the Iraq war.

Most of the negative impulses have been temporary, not least because the chains have responded to the irritations they can produce: adapting menus, advertising, and their restaurants to local tastes. And by no means all the reactions have been destructive: ‘pushback’ can produce interesting alternatives to the enemy. But in a world where tensions between the ‘global’ and the ‘local’ are never far away, these American names remind us that only the US possesses truly universal food brands, with Coke still the world’s most powerful trademark of all, according to the agencies which rank such things. So, whatever it might wish, the high profile of McDonald’s, its unrivalled resources and symbolic associations, have tended to get the company caught up in the politics of change in all those cultures where conflicts of modernization have been particularly intense.

In his pioneering work on America’s role in debates over the future in 20th century France (Seducing the French 1993), Richard Kuisel focuses at one point on the controversy Coca-Cola set off when it arrived in the country in 1949. The Left was against it, the wine-producers deplored it, the government and the press opposed it. The Cold War was raging and Coke openly waved the US flag. But Kuisel writes that at stake were issues of modernity, sovereignty, and identity which have endured long after the Cold War, and are still felt well beyond France. “Our problem is to find a formula of life as between the old traditions and the new world rushing into us from every side,” said the Irish writer Sean O’Faolain in 1940. In the second half of the 20th century, repeated waves of technological, social, and cultural novelties coming from across the Atlantic, usually driven by market forces, have meant that the shock of the future usually arrived with an unmistakeable American accent. Was this an ‘Irresistible Empire’ as Victoria De Grazia suggested in her 2005 survey of the impact and reception of American models of consumerism in 20th century western Europe?

In the post-Cold War era of globalization, identity politics took off in Europe and in many places across the globe. As the renowned political scientist Stanley Hoffmann of Harvard put it, the more societies converged in their (Western-style) systems of living, the more each tried to cling to its native idiosyncracies. And in many lands, food became one of the key areas of contention in this struggle. The Minister of Agriculture in Italy’s Berlusconi government of 2009, from the separatist Northern League party, declared that he would not eat pineapple, let alone hamburgers, and encouraged the elimination of kebab stores and other alien food presences from his territory. (Meanwhile the Minister of Culture in the same government hired the founder of McDonald’s in Italy as his commercial adviser.)

But Italy showed that the politics of food could be much more constructive and intelligent than these gestures suggested. In 1989 the International Slow Food campaign was founded, inspired by journalist Carlo Petrini. He had originally gained fame in a protest against the arrival of McDonald’s close by Rome’s ancient Spanish Steps. Today Petrini’s movement comprises websites, magazines, seminars, food fairs, and a gastronomic university. It has gone global and inspired an ever-expanding food retail chain under the Eataly brand. Contrast this with the fate of France’s anti-McDonald’s lobby. Led from 1999 by a charismatic farmer, José Bové, who shot to notoriety by destroying a McDonald’s building site, the protesters chose to join the militant wing of the anti-globalization struggle. In 2007 Bové gained 1.3% of the vote at the Presidential election and disappeared into the European Parliament.

So the continuing success of McDonald’s in Europe — its second largest area by presence outside the US — demonstrates yet again the splitting effect that America’s cultural challenges produce, between nations and within them. Slow Food gets the headlines but McDonald’s gets the youthful crowds. Traditionalists and cultural élites (not always the same) tend to deplore the low-cost, quantity-over-quality thrust of the chain, just as they have done since the days of Woolworth’s and Hollywood, and as they do today in nations like India, where small shops fight the spread of supermarkets. Now, ten years after the Iraq war, America’s presence in the world seems less controversial than it once was, and so does McDonald’s. Whether the brand still acts as a stand-in for the nation we shall only see in the next crisis. In the meantime the company believes it has found a synthesis of its own best traditions and those of the young and old who rush into its restaurants, looking for speed, value — and a safe hamburger — wherever they are.

David Ellwood is an Associate Professor of International History at University of Bologna and Adjunct Professor in European-American Relations at Johns Hopkins University, SAIS Bologna Center. He is the author of The Shock of America: Europe and the Challenge of the Century. His first major book was Italy 1943-1945: The Politics of Liberation (1985) then came Rebuilding Europe: Western Europe, America and Postwar Reconstruction (1992). The fundamental theme of his research — the function of American power in contemporary European history — has shifted over the years to emphasize cultural power, particularly that of the American cinema industry. He was President of the International Association of Media and History 1999-2004 and a Fellow of the Rothermere America Institute, Oxford, in 2006.

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Image credit: Pas de Starbucks à Montmartre poster from PARIS FIERTÉ via PARIS FIERTÉ website. Used for the purpose of illustration.

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“‘Pleb’–gate” — as the altercation between Andrew Mitchell, MP, and police officers guarding Downing Street has become known — continues to rumble along. It seems to me that there is a huge unanswered question lurking therein. It is this: what on earth are police officers doing providing an armed guard for the Prime Minister?

One might say that they do it, because they always have. Certainly, for as long as I can remember there has been the figure of the police constable standing outside the door of Number 10. For many years, it was an icon: an apparently unarmed police officer guarding the civil head of government. What better image of democracy could one imagine? However, that is no longer the image. When officers stand at the door of Number 10, they do so wearing body armour and conspicuously carrying a sidearm, when they not pictured gripping a sub–machine gun or assault rifle. This is not a reassuring image. It looks awfully like an embattled state.

At a time when the government is telling the nation that it can no longer afford policing on the scale to which it has become accustomed, politicians show little inclination to deplete those who guard them, both at Downing Street and the Palace of Westminster. I suspect that victims of crime who are left waiting for officers to attend their personal calamity, will no longer consider that ‘we are all in this together’.

This is more important than mere equity. Guarding royalty, diplomats, and politicans is hardly compatible with the role of the police officer. In the Metropolitan Police the Diplomatic Protection Group (DPG) is dismissed as ‘doors, posts and gates’. Standing for hours at a static post does not take much in the way of policing knowledge and skills, there are few members of the public to disturb officers and if a crime has been committed these officers are the least likely to rush to the scene.

There are ample discarded members of HM armed forces who could easily fulfil such a role with the minimum of training and probably a significantly less cost. After all, the armed tactics that the ‘civil’ police who guard these locations are taught have been copied from the military. So, former soldiers would provide just as secure protection from a terrorist attack as the ‘bobbies’ who now do the job.

However, ‘plebgate’ reveals much more. Mr Andrew Mitchell, does not dispute that he said something along the lines of ‘I thought you guys were here to help us?’ In other words, the officers in Downing Street are regarded by this minister as a mere servant of them. Since no other politician has disputed this remark, amongst everything that has been disputed, then I suspect it is a widely shared view. In Downing Street, the rebuke ‘Officer, I pay your wages’, seems actually appropriate. However, the police are not servants of any class of the population — motorists who park on double-yellow lines, local squires, or ministers of the crown. The officers in Downing Street should have replied to Mr Mitchell, that they do not serve him, or the government. They do what it says on the helmet: they serve the Crown. It is the ‘Queen’s Peace’ that they are sworn to protect, not the convenience of politicians.

So, let the axe fall where it should: return all those officers who now serve ‘the political class’ to the duties for which taxpayers imagine their taxes are levied: the protection of all citizens. Replace them, if our politicians feel uniquely vulnerable, with guards who explicitly serve the interests of this privileged elite.

Professor P.A.J. Waddington, BSc, MA, PhD is Professor of Social Policy, Director of the History and Governance Research Institute, The University of Wolverhampton. He is a general editor for Policing.

A leading policy and practice publication aimed at senior police officers, policy makers, and academics, Policing contains in-depth comment and critical analysis on a wide range of topics including current ACPO policy, police reform, political and legal developments, training and education, specialist operations, accountability, and human rights.

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Image credit: British Policeman, also known as a ‘Bobby’ observing London life. Photo by GP232, iStockphoto.

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On Saturday 30 March 2013, Kenya’s Supreme Court unanimously decided that Kenya’s presidential election — which had been held on 4 March — was conducted in a free, fair, transparent and credible manner, and that Uhuru Kenyatta and William Ruto of the Jubilee Alliance were validly elected. Raila Odinga of the Coalition for Reform and Democracy (CORD) publicly disagreed with the court’s findings, but emphasised the supremacy of the constitution and wished Kenyatta and Ruto luck in implementing the 2010 constitution. Raila’s decision to seek legal redress for alleged electoral manipulation, rather than to call for mass action, and his respect for the court’s ruling stands in stark contrast to 2007 when a disputed election triggered unprecedented violence. The 2013 election and its aftermath were generally peaceful with the notable exceptions of attacks on state security personnel at the Coast the night before the election and a harsh state security response to violent demonstrations in parts of Nyanza Province and Nairobi following the reading of the Supreme Court’s verdict.

The 2013 election reveals a strong commitment to peace amongst Kenyans, which is fuelled by people’s experiences of the 2007/8 post-election crisis that — at least for a time — seemed to threaten to throw the country into civil war, and by a strong “peace narrative,” which has been fostered by church leaders, civil society organisations, and politicians. However, it also reflects a profound sense of disillusionment and impotence amongst many Kenyans. Demonstrations were banned on the basis that they “inevitably” lead to violence. Strategically located state security personnel rendered public protest an incredibly dangerous option. Meanwhile the emphasis on “peace” made people cautious of highlighting problems lest they be labelled as warmongers.

But as well as differences, there are also strong continuities between 2007 and 2013. One is the ongoing political salience of ethnic identities and narratives of difference, competition, marginalisation, and particular suffering, which pose significant challenges for the Jubilee Alliance moving forward.

The prominence of ethnic identities was reflected in pronounced ethnic voting patterns (the vast majority of Kikuyu and Kalenjin voted for the Jubilee Alliance, and the majority of Luo voted for CORD), but also in vicious debates on social media sites following the announcement of the results and public responses to the Supreme Court’s decision. Thus, while Uhuru announced that his government would work with and serve all Kenyans, the perception on the ground is clearly different. Many Jubilee supporters in Kalenjin and Kikuyu-dominated areas, for example, celebrated the Supreme Court’s decision by holding up loaves of bread and declaring that while in the coalition government they had had to share a loaf, they now had the whole thing!

The challenge of communal narratives and perceptions includes the difficulty of working with those ethnic groups who predominately supported Raila and CORD, such as the Luo and coastal communities. First, these communities have strong narratives of marginalisation and past suffering at the hands of previous ethnically-biased (and Kikuyu and Kalenjin-headed) regimes. Second, there is a strong perception within these communities that the Kikuyu and Kalenjin have benefited from the “fruits of Uhuru [independence]” more than other Kenyans and are unable to allow others to govern. Finally, many people from these communities firmly believe that the 2013 election was marked by gross irregularities, that the election should have gone to a run-off, and that their vote has once again been stolen. This poses a challenge to the new government as people tend to focus in on evidence that reinforces existing narratives. Many CORD supporters are already talking about boycotting the next presidential election, and such narratives and perceptions can further fuel a sense of ethnic difference and competition — and perhaps future conflict.

However, inter-ethnic tension and violence is not inevitable and people will be closely watching how the new Jubilee government includes members of all communities and how devolution plays out in practice: whether it serves to bring government closer to the people and a fairer distribution of resources, or whether it is marked by conflicts between the centre and the counties, different power brokers at the county level, and self-perceived “locals” and “outsiders” in cosmopolitan counties.

Second, while the Kalenjin and Kikuyu came together behind the Jubilee Alliance, it is clear that ethnic stereotypes, narratives of difference, competition, and mistrust continue to be a feature of day-to-day relations at the local level. In turn, there is a fear among many members of the Kalenjin community that their support for Uhuru’s presidency may be “betrayed” with potential “evidence” including a failure to fully share government positions and resources, and possible scenarios at the International Criminal Court (ICC) where both Uhuru and Ruto face charges of crimes against humanity. However, there is nothing inevitable about the collapse of the Jubilee Alliance, especially since Uhuru’s TNA party needs Raila’s URP party if it is to continue to enjoy a majority in the National Assembly and Senate.

In short, the new Jubilee government lacks legitimacy in many parts of the country and faces the possibility of internal divisions — two challenges that are both characterised by (among other things) strong ethnic narratives of difference, competition, marginalisation, betrayal, and particular suffering. Other challenges include Uhuru and Ruto’s cases at the ICC, the delivery of campaign promises, the government’s relations with civil society organisations who opposed Uhuru and Ruto’s candidacy and petitioned their victory, and government relations with the international community. Many countries having congratulated Uhuru on his victory, while simultaneously emphasising the need for Kenya to continue to comply with its international obligations, such as the ICC.

Gabrielle Lynch is an Associate Professor of Comparative Politics, Department of Politics and International Studies at University of Warwick. Her article “Becoming indigenous in the pursuit of justice: The African Commission on Human and Peoples’ Rights and the Endorois” was recently included in a virtual issue on Kenya from African Affairs.

African Affairs is published on behalf of the Royal African Society and is the top ranked journal in African Studies. It is an inter-disciplinary journal, with a focus on the politics and international relations of sub-Saharan Africa. It also includes sociology, anthropology, economics, and to the extent that articles inform debates on contemporary Africa, history, literature, art, music and more.

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By Edward Zelinsky

Many Americans have seen the now-infamous Star Trek video made by the IRS with taxpayer funds. It is painful to watch. Captain Kirk (known in the 21^st century as William Shatner) pronounced himself “appalled at the utter waste of U.S. tax dollars.” The video’s dialogue is depressingly sophomoric. The acting talents of the IRS employees are comparable to the acting talents of law professors, that is to say, nonexistent.

Click here to view the embedded video.

But this video is not the worst IRS boondoggle to recently come to light. That award goes to the IRS for spending public resources to litigate K&K Veterinary Supply, Inc. v. Commissioner.

This was a reasonable compensation case, so-called because the IRS attacked the reasonability and therefore the tax deductibility of the salaries paid to employees of a closely-held corporation. The IRS never contests as unreasonable the multi-million dollar salaries routinely paid by publicly-traded corporations to failed and ethically-challenged executives. What the IRS deems unreasonable are the far smaller salaries paid to the hard-working and successful owners of closely-held corporations.

The facts of K&K Veterinary Supply, Inc. are typical of these reasonable compensation cases: a successful, family-owned corporation paid salaries on the order of $981,728 to the corporation’s sole shareholder and $215,000 to his wife. These individuals paid federal income taxes on these salaries. The IRS’s goal (which it achieved) was to get a second, corporate tax on part of these amounts on the theory that these salaries were unreasonable and therefore not fully deductible for corporate income tax purposes.

The salaries paid in K&K Veterinary Supply, Inc. constitute a lot of money for most of us. But these salaries are pocket change for the Masters of the Universe who control our major publicly-traded corporations. Many of these executives are competent, ethical individuals who earn their pay honorably. But others are not.

Why does the IRS challenge the compensation paid to the owner in K&K Veterinary Supply, Inc. as unreasonable but not the millions paid to Jamie Dimon of JPMorgan Chase? Perhaps because Mr. Dimon’s compensation (like that of other presidents of major corporations) is set by a nominally independent board of directors and professional compensation consultants. However, it is today hard to take seriously the purported independence or professionalism of these kinds of directors and consultants.

In a case like K&K Veterinary Supply, Inc., the IRS effectively attacks entrepreneurial success in family-owned corporations as unreasonable. The problematic nature of these cases contrasts with recent and commendable IRS successes in combating illegal tax shelters including unreported foreign bank accounts. It is these kinds of productive activities to which the IRS should be devoting its resources, not Star Trek videos or reasonable compensation cases like K&K Veterinary Supply, Inc.

Edward A. Zelinsky is the Morris and Annie Trachman Professor of Law at the Benjamin N. Cardozo School of Law of Yeshiva University. He is the author of The Origins of the Ownership Society: How The Defined Contribution Paradigm Changed America. His monthly column appears here.

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As the baseball season opens and fans wonder how their favorite teams and players will do this year, a certain sort of fan will also wonder about a perennial question. Why is baseball the only sport exempt from antitrust law?

The answer cannot be found in the text of the antitrust statutes, which do not distinguish between baseball and other forms of enterprise. Nor can it be found in the economic structure of the baseball business, which is identical to that of the other major professional team sports. Applying antitrust law to sports can raise some difficult questions, but they are the same questions in baseball as in other sports. There is no reason to treat an agreement to restrict the location of baseball teams, for example, differently from an agreement to restrict the location of football teams. The antitrust concerns implicated by a draft of baseball players are the same as those implicated by a draft of basketball players. So how did baseball become the only sport exempt from the antitrust laws?

Denver Grigsby, a Yankee spring prospect and future Chicago Cubs outfielder, in 1922, the year of Federal Baseball Club of Baltimore v. National League. Image courtesy of the Library of Congress Prints and Photographs Division.

The exemption’s origin is a 1922 Supreme Court case called Federal Baseball Club of Baltimore v. National League, in which the Court held that the federal antitrust laws did not apply to baseball, because these laws only governed interstate commerce, and baseball was not a form of interstate commerce. The issue returned to the Supreme Court in 1953 and 1972, and both times the Court declined to overrule Federal Baseball Club, even though the conventional professional understanding of interstate commerce had expanded dramatically in the interim. Meanwhile, in two cases from the 1950s, one involving boxing and the other football, the Court made clear that the exemption is only for baseball, not for sports generally. Congress has had the power, all the while, to amend the antitrust laws to treat sports equally, but it has done so only to a very limited extent. The outcome of this combination of activity and inactivity is an exemption just for baseball, one that is now nearly a century old.

How can we explain the persistence of such a weird state of affairs? The most common explanation emphasizes the unique position of baseball in American culture. Judges and legislators have bent over backwards, the argument goes, to protect the national pastime.

But while baseball no doubt has a meaning in American culture unlike that of other sports, and while one can certainly find examples of judges and politicians proclaiming their love for baseball, there is much more to baseball’s exemption than the desire of government officials to express their passion for the game by insulating it from lawsuits. It is a story in which a sophisticated business organization has been able to work the levers of the legal system to achieve a result favored by almost no one else. For all the well-known foibles of the owners of major league baseball teams, baseball has consistently received and followed smart antitrust advice from sharp lawyers, all the way back to the 1910s, when the sport faced its first antitrust crisis.

At the same time, it is a story that serves as an arresting reminder of the path-dependent nature of the legal system. At each step, judges and legislators made decisions that were perfectly sensible when considered one at a time, but this series of decisions yielded an outcome that makes no sense at all.

Stuart Banner is the Norman Abrams Professor of Law at UCLA. His latest book, The Baseball Trust: A History of Baseball’s Antitrust Exemption (2013), has just been published by Oxford University Press.

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The Philip C. Jessup International Law Moot Court Competition, now in its 54^th year, gathers competitors from over 550 law schools who compete in a simulated fictional dispute before the International Court of Justice. To celebrate the theme of this year’s competition, OUP author Jane McAdam has written a special blog piece on climate change and the phenomenon of the ‘disappearing’ state.

By Jane McAdam

The ‘disappearing State’ or ‘sinking island’ phenomenon has become a litmus test for the dramatic impacts of climate change on human society. Atlantis-style predictions of whole countries disappearing beneath the waves raise fascinating legal issues that go to the heart of the rules on the creation and extinction of States. These rules have never been tested in this way before. But while the potential loss of territory for environmental reasons is novel, much of this deliberation is taking place in the abstract. Underlying assumptions about why, when, whether, and how States might ‘disappear’, and the consequences, do not always sit comfortably with the empirical evidence. The danger is that this may lead to well-intentioned, but ultimately misguided, responses.

The criteria for statehood under international law are four-fold: a defined territory, a permanent population, an effective government, and the capacity to enter into relations with other States. While all four criteria would seemingly need to be present for a State to come into existence, the absence of all four does not necessarily mean that a State has ceased to exist. This derives from the strong presumption of continuity of States in international law, which presumes that existing States continue even when some of the formal criteria of statehood start to wane.

In the context of climate change, it is often assumed that sea-level rise will ultimately inundate the territory of certain low-lying island countries, thus rendering it uninhabitable. It is true that small low-lying island States are particularly vulnerable to climate change impacts, including loss of coastal land and infrastructure due to erosion, inundation, sea-level rise and storm surges; an increase in the frequency and severity of cyclones, creating risks to life, health and homes; loss of coral reefs, with attendant implications for food security and the ecosystems on which many islanders’ livelihoods depend; changing rainfall patterns, leading to flooding in some areas, drought in others, and threats to fresh water supplies; salt-water intrusion into agricultural land; and extreme temperatures.

However, the focus on loss of territory as the indicator of a State’s ‘disappearance’ may be misplaced. Low-lying atoll countries are likely to become uninhabitable as a result of diminished water supplies long before they physically disappear. In October 2011, for example, Tuvalu declared a state of emergency because of severe water shortages, necessitating an urgent humanitarian response (temporary desalination plants, rehydration packs, technical support, and water supplies) from Australia and New Zealand.

In international law terms, then, the absence of population, rather than territory, may be the first signal that an entity no longer displays the full indicia of statehood. But where would people go, and what would their legal status be?

Movement away from small island States is likely to be slow and gradual, rather than triggered by a sudden event. Although migration has long been a natural human adaptation strategy to environmental variability, the legal (and sometimes physical) barriers to entry imposed by States today considerably restrict people’s ability to move.

If people seek to enter another country without permission to do so, they may find themselves in a very precarious legal position, potentially without work rights, basic health care, or social services. They will generally not meet the legal definition of ‘refugee’, which requires a person to show a well-founded fear of persecution for reasons of a particular attribute (such as religion or political opinion). Nor is it clear that they will benefit from complementary protection under human rights law (non-return to a risk to life or inhuman or degrading treatment) — although the more debilitated the home environment, the better chance they will have. Finally, it is unlikely that they would be recognized as stateless persons, since that legal definition is deliberately restricted to people who are ‘not considered as a national by any State under the operation of its law’. Whether or not this could be met may depend in part on whether the ‘State’ is considered still to exist. In any event, though, the statelessness treaties are poorly ratified and few States have statelessness determination procedures in place or a protective legal status for such people.

The relocation of whole communities has been raised from time to time as a solution for small island States. But this is an option of last resort for most, and one which should be treated with considerable caution. This is because there is much more to relocation than simply securing territory. Apart from fundamental issues about identity and self-determination, those who move need to know that they can remain and re-enter the new country, enjoy work rights and health rights there, have access to social security if necessary and be able to maintain their culture and traditions, and also what the legal status of children born there would be. There is also the question of how to balance the human rights of relocating groups with those of the communities into which they move. The effects of dislocation from home can last for generations and have significant ramifications for the maintenance and enjoyment of cultural and social rights by resettled communities. That is clear from the situation of the Banabans on Rabi, who were relocated in 1945 from present-day Kiribati to Fiji.

This is why a key policy objective of some small island States is to enhance existing migration options to developed countries in the region. Managed migration is a safer mechanism for enabling people to move away from the longer-term effects of climate change, without artificially treating people as in need of international ‘protection’ (from a persecutory State). It can play an important role in livelihood diversification and risk management strategies. Furthermore, given that one of the biggest problems for small island States is overpopulation, increased migration could help to relieve population and resource pressure. This may mean that a smaller population could remain on the territory for longer.

Jane McAdam is Scientia Professor of Law at the University of New South Wales, Australia and a non-resident Senior Fellow at the Brookings Institution in Washington, D.C. She is the author of Climate Change, Forced Migration, and International Law.

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Image credit: Tinny, small tropical island in Indian ocean during a storm with wind and rain. Photo by Alfaproxima, iStockphoto.

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This week, the US Supreme Court heard two cases that could change same-sex marriage laws nationwide. If the Defense of Marriage Act and Proposition 8 are ruled illegal, same-sex couples around the nation could rush to the altar this summer.

To help measure the impact of this ruling on the population, Social Explorer took a look at data on same-sex couples. The Census and American Community Survey collect data on unmarried partners living together. These numbers offer some insight into how many co-habitating same-sex partners might consider marriage if it became a legal right.

According to the 2011 American Community Survey:

• There were 605,472 same-sex unmarried partners nationwide.
• Those couples accounted for 9% of all unmarried partner households.
• There were 87,078 unmarried same-sex partners in California.
• California accounts for 14.4% of same-sex partners living together.

The New York Times household comparison tool created with Social Explorer and IPUMS data and analysis shows that unmarried same-sex partners have higher incomes than both married couples and unmarried opposite-sex partners.

You can explore a more detailed view of same-sex unmarried partners in California, your neighborhood, and elsewhere using Social Explorer’s five-year American Community Survey map.

Interactive Map of Same-Sex Unmarried Partners (American Community Survey 2006-10)

Click to Explore

Check out Social Explorer’s map and report tools to find out more about same-sex couples and other groups.

Sydney Beveridge is the Media and Content Editor for Social Explorer, where she works on the blog, curriculum materials, how-to-videos, social media outreach, presentations and strategic planning. She is a graduate of Swarthmore College and the Columbia University Graduate School of Journalism. A version of this article originally appeared on the Social Explorer blog.

Social Explorer is an online research tool designed to provide quick and easy access to current and historical census data and demographic information. The easy-to-use web interface lets users create maps and reports to better illustrate, analyze and understand demography and social change. From research libraries to classrooms to the front page of the New York Times, Social Explorer is helping people engage with society and science.

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Image credit: Rainbow flag from Wikimedia Commons.

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Few scenes in one’s life evoke vivid imagery. A generation’s historical memory can be reduced to a single significant moment—think Pearl Harbor, JFK’s assassination, 9/11. For gay and lesbian Californians of my generation, the State Supreme Court’s 2008 ruling in favor of same-sex marriage seemed initially like it might just be such a moment. As a well-adjusted gay man, happily partnered for over a decade in a relationship legally recognized through the state’s domestic partnership system, I did not anticipate the wave of emotion I felt upon hearing the decision. I had grown accustomed to the “separate but equal”(ish) system the state had constructed for me. I lived happily in a predominantly gay enclave in San Francisco and had grown accustomed to, even embraced, separation from “mainstream” heterosexual culture. Like most gays and lesbians in my generation (born in the 1970s, coming out in the 1990s), I had successfully navigated the psychological challenges of social and political exclusion.

One of the great achievements of the lesbian, gay, bisexual, and transgender (LGBT) movement has been the creation of communities in which a young lesbian can feel a sense of inclusion and commonality. LGBT communities offer her a space in which no explanation, no defense, and no apology for her sexual orientation is needed. These communities represent vital adaptations to a social structure in which the experience of sexual minorities and their ability to participate in cultural institutions—free from stigma and discrimination—is constantly relegated to a question.

What would it mean to reimagine that young lesbian’s life course in the context of a new cultural and political reality—a life course not characterized by the navigation of stigma but of the possibility for unapologetic self-expression? While the US Supreme Court may not be as concerned with the psychology of social exclusion as it is with the technicalities of “standing,” this question ought to be at the forefront of our national conversation, if we care at all about today’s LGBT youth, and if we hope for them a life course of possibility rather than limitation.

Today’s LGBT youth are coming of age in a radically different cultural reality than previous generations. On the one hand, they have access to far greater resources and far greater access to one another. Many of today’s youth experience diversity in sexual orientation as the “new normal,” as psychologist Ritch C. Savin-Williams suggested in The New Gay Teenager (Harvard University Press, 2005). Sociological studies in high schools in both the United States by C.J. Pascoe (Dude, You’re a Fag, University of California Press, 2007) and the United Kingdom by Mark McCormack (The Declining Significance of Homophobia, Oxford University Press, 2012) support this idea.

But the storyline about today’s LGBT youth is not so straightforward. As the justices were quick to suggest this week, social change is not linear and immediate but in an active state of debate. A popular refrain of marriage equality opponents has been that more time is needed for cultural conversation before a ruling that might apply to the entire nation. How might that young lesbian experience this debate about her own life course possibilities?

In 2011, the Institute of Medicine issued a report indicating that LGBT persons continue to experience health and mental health disparities relative to their heterosexual peers. The report coincided with a major review paper in the Journal of Research on Adolescence by Elizabeth Saewyc revealing that the “new normal” for LGBT youth does not necessarily translate into the privilege of an adolescence unburdened by victimization or psychological distress. In short, LGBT youth experience both greater support than ever and continued psychological distress because of continued societal stigma. Narratives of struggle coexist with narratives of liberation from societal stigma in a rapidly changing cultural context for sexuality.

As a culture, we are at a crossroads. Do we maintain the rhetoric of stigma and its policy implications? Do we suggest to today’s LGBT youth that their pursuit of happiness in the love and satisfaction of an intimate relationship is culturally inferior to their heterosexual peers? Do we suggest to them that they are lesser, defective, abnormal? Or do we use this opportunity to apply the anchoring political ideals of our nation—ideals like individual liberty and equality before the law—to a group whose long history of demonization has been accompanied by significant psychological struggle?

Here politics and science converge for the great “experiment” to be concerned with is not the consequences of same-sex marriage for society, but rather the consequences of social exclusion for the health and well-being of sexual minority persons. To summarize the evidence from social science: stigma and subordination psychologically harm LGBT people. Same-sex relationships provide meaning and happiness and are comparable to opposite-sex relationships. Many same-sex relationships actually show more equality in matters such as domestic labor and communication than opposite-sex relationships. The children of same-sex headed households fare just as well as those of opposite-sex ones. When the rights of sexual minority people are subject to a vote by the majority, they experience greater psychological distress as surveys conducted during anti-gay marriage amendment votes have illustrated. That young lesbian listening to the marriage equality debate has a psychological response to what it means for her life.

In short, the evidence to weigh is not whether marriage equality will somehow erode society as we know it but rather how marriage inequality interferes with the fundamental rights enshrined in our national narrative of political liberty and equality, subordinating an entire class of citizens and thwarting the possibilities of a life course free from stigma and psychological distress. Life, liberty, and the pursuit of happiness are not abstract concepts; they are lived psychological experiences—lived by LGBT people in spite of a social structure that conspires against them.

While I would never wish a different life course upon myself—my struggles define my identity—I would welcome a world in which young LGBT persons do not have to navigate the psychology of social and political exclusion. And I and other social scientists would welcome a world in which our political ideals are embodied in our concern for the psychological welfare of our nation’s LGBT citizens.

Phillip L. Hammack is Associate Professor of Psychology at the University of California, Santa Cruz. He is co-editor of The Story of Sexual Identity: Narrative Perspectives on the Gay and Lesbian Life Course (Oxford University Press, 2009) and co-editor of Oxford’s Series on Sexuality, Identity, & Society.

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