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Welcome to the Blogosphere, Geographical Imaginations!

by Kevin Jon Heller

I’m sorry I didn’t discover it until he linked to me, but Derek Gregory — the Peter Wall Distinguished Professor and Professor of Geography at the University of British Columbia — has recently started a blog entitled Geographical Imaginations: War, Space, and Security. Gregory is one of the great political geographers of his or any generation; I can’t recommend the book from which the blog gets its name highly enough.  Fortunately, the blog promises to be just as good, with recent posts ranging from emergency cinema to the history of bombing to teaching the arts at military academies.

I’ve added Geographical Imaginations to my RSS reader.  You should, too!

RIP, Eric Hobsbawm (1917-2012)

by Kevin Jon Heller

I am very sad to report that the eminent British historian has passed away at 95.  He lived an amazing life, as recounted in the Guardian‘s lengthy obituary today.  Here is a snippet:

If Eric Hobsbawm had died 25 years ago, the obituaries would have described him as Britain’s most distinguished Marxist historian and would have left it more or less there. Yet by the time of his death at the age of 95, Hobsbawm had a achieved a unique position in the country’s intellectual life. In his later years Hobsbawm became arguably Britain’s most respected historian of any kind, recognised if not endorsed on the right as well as the left, and one of a tiny handful of historians of any era to enjoy genuine national and world renown.

Unlike some others, Hobsbawm achieved this wider recognition without in any major way revolting against either Marxism or Marx. In his 94th year he published How to Change the World, a vigorous defence of Marx’s continuing relevance in the aftermath of the banking collapse of 2008-10. What is more, he achieved his culminating reputation at a time when the socialist ideas and projects that animated so much of his writing for well over half a century were in historic disarray, and worse – as he himself was always unflinchingly aware.

In a profession notorious for microscopic preoccupations, few historians have ever commanded such a wide field in such detail or with such authority. To the last, Hobsbawm considered himself to be essentially a 19th-century historian, but his sense of that and other centuries was both unprecedentedly broad and unusually cosmopolitan.

I had the pleasure of taking European history with Hobsbawm when I was a graduate student at the New School for Social Research in the early 90s — when he was already in his 70s.  He was an amazing lecturer, a very nice person, and could drink his students under the table with ease.

I’ve been planning for some time to re-read Hobsbawm’s magisterial “Age” series: The Age of Revolution: 1789-1848 (1962); The Age of Capital: 1848-1875 (1975); The Age of Empire: 1875-1914 (1987); and The Age of Extremes: 1914-1991 (1994).  They are phenomenal books; I can’t recommend them highly enough.

He will be missed.

My Encounter with a Chevron Subpoena — and the ACLU’s Assistance (Updated)

by Kevin Jon Heller

Last week, while I was participating in a conference, I received an email from Google with a puzzling subject line: “Subpoena Notice from Google (Internal Ref. No. 257121).”  I opened the email, assuming that it was some kind of sophisticated phishing attempt.  It wasn’t.  It was Google informing me — more than a little cryptically — that Chevron had subpoenaed my account information and that it intended to comply unless I filed a motion to quash.  Here is Google’s email, with only some identifying information redacted:

Hello,

Google has received a subpoena for information related to your Google account in a case entitled Chevron Corp. v. Steven Donziger, et al., United States District Court for the Northern District of California, 11 Civ. 0691 (LAK) (Internal Ref. No. 257121).

To comply with the law, unless you provide us with a copy of a motion to quash the subpoena (or other formal objection filed in court) via email at [Google email address] by 5pm Pacific Time on October 7, 2012, Google may provide responsive documents on this date.

For more information about the subpoena, you may wish to contact the party seeking this information at:

[Attorney name]
Gibson, Dunn & Crutcher LLP
200 Park Ave
New York, New York 10166-0193
[Attorney phone number]

Google is not in a position to provide you with legal advice.

If you have other questions regarding the subpoena, we encourage you to contact your attorney.

Thank you,
Google Legal Support

My first reaction was shock.  As regular readers know, I have often criticized Chevron’s actions in Ecuador.  But I could not imagine why Chevron was subpoenaing my private information; the sum total of my interaction with Steven Donziger, the Ecuadorian plaintiffs’ lead attorney and the defendant in Chevron’s lawsuit, consisted of two emails, neither of which contained anything substantive.  What did Chevron think I had that would help them?  Or were they simply trying to intimidate me?

My second reaction was anger.  I am — obviously — a blogger.  I am also, as a blogger, a journalist.  I have sources who provide me with confidential information on a wide variety of issues; those sources could lose their jobs if their identities were ever revealed.  It infuriated me that Chevron would try to obtain my account information — and I was equally frustrated that Google apparently had no intention whatsoever of protecting my privacy.

There was never any doubt in my mind that I would resist the subpoena.  But this wasn’t my area of law, so I immediately wrote for advice to my friend and Guardian blogger Glenn Greenwald, who has passionately defended the rights of bloggers and journalists.  Glenn put me in touch with Ben Wizner, the Director of the ACLU’s fantastic Speech, Privacy & Technology Project. To my relief, the ACLU quickly agreed to help me…

An Introduction to the Oxford Guide to Treaties

by Duncan Hollis

Here’s a quick follow-up to my book announcement last week.  With OUP’s kind permission, I’ve posted the Introduction to the Oxford Guide to Treaties on SSRN.  So, for those looking for a more detailed explanation of the book, its goals, and its methodology, feel free to download it there. Here’s the abstract:

From trade relations to greenhouse gasses, from shipwrecks to cybercrime, treaties structure the rights and obligations of states, international organizations, and individuals. For centuries, treaties have regulated relations among nation states. Today, they are the dominant source of international law. Thus, being adept with treaties and international agreements is an indispensable skill for anyone engaged in international relations, including international lawyers, diplomats, international organization officials, and representatives of non-governmental organizations.

This Introduction introduces readers to the Oxford Guide to Treaties, a volume that seeks to provide a comprehensive review of the rules and practices surrounding the making, interpretation, and operation of these instruments. Leading experts provide essays designed to introduce the law of treaties and offer practical insights into how treaties actually work. Foundational issues are covered, including what treaties are and when they should be used, alongside detailed analyses of treaty formation, application, interpretation, and exit. Special issues associated with treaties involving the European Union and other international organizations are also addressed. These scholarly treatments are complimented by a set of model treaty clauses. Real examples illustrate the approaches treaty-makers can take on topics such as entry into force, languages, reservations, and amendments. The Oxford Guide to Treaties thus provides an authoritative reference point for anyone involved in the creation or interpretation of treaties or other forms of international agreement.

The Oxford Guide to Treaties

by Duncan Hollis

I had a good day yesterday. I received a package in the mail from Oxford containing copies of my book – The Oxford Guide to Treaties. It represents the culmination of a three year effort on my part to compile a comprehensive and current guide to treaty law and practice.  To do this, I started with a fairly simple pThe OGTremise — in this age of specialization, why not ask the world’s leading experts on various issues of treaty law and practice to write about their particular areas of expertise and edit those contributions together in a way that covers the entire field.  With these academic explanations as a starting point, I then sought to build a set of sample treaty clauses — examples of how existing treaty texts have addressed the manifold issues associated with constructing what has now become the dominant form of international cooperation.  I’ll admit the effort proved quite a bit more daunting and rigorous that I had imagined at the outset.  But, looking at it last night, I’m feeling truly thrilled with the results.

The truth is, moreover, I couldn’t have done this book without a lot of help — the OUP staff was phenomenal (not to mention patient) with my sundry questions and suggestions.  And, of course, this project wouldn’t exist without all my fellow contributors.  They were universally thoughtful and committed to the idea of laying out the state of play in their respective areas, including existing doctrines, disagreements, and areas where progressive development may be warranted.  I could fill a whole blog post (and may yet still) acknowledging what each of the twenty-seven contributors brought to the table and how grateful I am to each of them.  For now though let me single out David Bederman who authored his chapter in what he knew to be the final months of his life.  That sort of effort leaves me speechless.

I hope to blog more about the book in the coming months. But, for those readers interested in purchasing it –  you can do so today in Europe. U.S. readers can order it now as well, although I understand U.S. copies won’t be published till mid-October. In the meantime, for those interested in knowing more about the book, the final table of contents follows after the jump.

[UPDATE:  OUP tells me that the book will be out next week in the US for American readers interested in getting a copy, not mid-October as I originally suggested].

Melbourne World’s Most Livable City

by Kevin Jon Heller

It’s been a slow blogging week, so I think I can get away with a completely self-serving post about the awesomeness of Melbourne.  And yes, Melbourne is awesome.  The Economist Intelligence Unit’s Global Livability Survey says so — again:

1. Melbourne
2. Vienna
3. Vancouver
4. Toronto
5. Calgary
5. Adelaide
7. Sydney
8. Helsinki
9. Perth
10. Auckland

The survey assesses 140 cities on factors in five categories: stability, healthcare, culture and environment, education and infrastructure.  Melbourne received a perfect score on infrastructure, healthcare and education.

Perhaps this is a good time to mention that my law school is currently advertising two entry-level positions, though at least one of the people we hire will need to teach business law.  Applications close in a week — August 22nd.

Opinio Juris the Seventh Most Cited Faculty Law Blog

by Kevin Jon Heller

According to research conducted by Jay Brown of theRacetotheBottom.org, blogs have been cited in “law reviews, journals, and other legal publications” more than 6300 times — a nearly fourteen-fold increase since 2006.  Here are the 10 most-cited faculty law blogs:

1. Volokh Conspiracy — 742 cites
2. Balkinization — 426 cites
3. Patently O — 393 cites
4. Concurring Opinions — 279 cites
5. Sentencing Law and Policy — 272 cites
6. Prawfs Blawg — 219 cites
7. Opinio Juris — 200 cites
8. Lessig Blog — 178 cites
9. Harvard Forum on Corp. Gov. — 178 cites
10. Conglomerate — 171 cites

Brown also notes that the list has remained remarkably stable over time, with seven of the 10 being among the 10 most-cited law blogs in 2007.  We are actually one of the three newcomers, which is great news.

Thanks to all the scholars out there who have cited us!

Chris Borgen and Opinio Juris on NYC TV

by Duncan Hollis

Our own Chris Borgen recently did an interview about Opinio Juris on a New York City Cable Show, Today’s Verdict.  You can watch it here.  Chris talks about the origins of the blog, past successes and our more recent work (mostly for an audience unlikely to know much about international law).  To top it all off, Chris looks great on TV. Good job Chris!

A Question for Readers About Publishing Etiquette (Minor Update)

by Kevin Jon Heller

Dear readers, I need your advice.  I was recently asked by a good journal to peer review a short essay about international criminal law.  The essay was quite good, and I would have had no qualms about recommending its publication, but I had the strangest sense of deja vu as I read it.  It didn’t take me long to realize why: the author had published a version of the article as a blog post on a major international-law blog — one of which he/she is not a member.  That would not necessarily have been a deal-breaker for me, but the blog post reproduced verbatim nearly 80% of the article’s text — basically, it was the article, minus the footnotes.  As a result, I informed the journal that although the article was very good, I could not recommend publishing it.  I also suggested that, if they were not bothered by the duplication, they should ask another reviewer to take a look at the article.  I think that was the right decision, especially as the journal did not indicate to me that it was aware the article had previously been published on a blog.  But I still feel a bit conflicted — the author is not a professor and is not necessarily aware of publishing conventions.  I would love to hear from others about what they would have done in my situation.

UPDATE: In response to Alec’s comment below, I have updated the post to make clear that this was not a self-posted entry; the author submitted the post to the blog in question and the blog agreed to publish it.  If that affects anyone’s opinion, please let me know in the comments.

Gen. McChrystal’s Secret Yale Course (UPDATED)

by Kevin Jon Heller

Given my basic cynicism toward just about everything, I’m difficult to shock. But I was certainly shocked to learn that Yale University is allowing Gen. Stanley McChrystal to teach a course that enrolled students have to agree in writing not to discuss. Here is Gian Gentile, a professor at West Point, criticizing the course in The Atlantic:

Enter retired four-star Army General Stanley McChrystal. McChrystal, who formerly led special operations forces in Iraq and Afghanistan and later became a senior American commander in Afghanistan, now teaches a class at Yale’s Jackson Institute for Global Affairs, where he integrates his military experience with his studies on leadership. In the New York Times, McCyrstal is quoted as saying “the only reason I’m here to teach,” compared with “somebody who’s got a Ph.D., is because I’ve been through it.”

McChrystal must have been through something ominous because, according to Elisabeth Bumiller’s Times article, Yale University imposes restrictions on students who sit in McChrystal’s classes, demanding that they take notes on an “off the record” basis — i.e., not for attribution.

Yale’s extraordinary act seems drastically out of place with notions of academic and intellectual freedom. At the U.S. Military Academy at West Point, where I teach history, intellectual freedom is fiercely encouraged and protected. In addition, there is also accountability. No matter what I say in my history classes – either about history or my combat experience — cadets are free to tell it to the world, critique it, or reject it privately or publicly. Restrictions on cadets don’t exist even for an instructor with direct ties to the U.S. military. (I did two combat tours in Iraq, the second one in command of a combat battalion in West Baghdad at the height of Iraq’s Shia-Sunni civil war in 2006.)

Yale University’s readiness to impose special conditions — enabling a retired American four-star general with celebrity appeal to teach classes on his own terms — is puzzling. Why would Yale bend the dictates of academic freedom, especially knowing that McChrystal’s students have little personal knowledge of the true nature of the conflicts in Iraq and Afghanistan, much less of the officers who’ve decisively shaped their conduct? Have at least portions of the Yale faculty have been seduced by the “better war” myth — the notion that to win wars of occupation inside the Muslim World, the trick is to put the right general in charge and tweak the tactics of counterinsurgency with clever political science theories that win hearts and minds?

I don’t know what I find more distressing: Yale’s willingness to offer such a course or students’ willingness to take it. I just hope that the course finds its Bradley Manning — a student brave enough to let the world know what Gen. McChrystal believes is so sensitive that it cannot see the light of day. I also highly recommend Stephen Walt’s response in FP. The title to his post, “Yale Flunks Academic Freedom,” really says it all.

UPDATE: According to two students who took the course, reports by bloggers and the media that students were required to sign non-disclosure agreements are incorrect. If so — and I have no reason to doubt the students — then the concerns in the post are obviously misplaced.

That said, contra Roger, I do not believe that Chatham House rules belong in the classroom. They are certainly appropriate for meetings of organizations that require secrecy to function, but there should be no limits whatsoever on the free exchange of ideas in a university course.

Doctors, Professors, and (North) American Exceptionalism

by Kevin Jon Heller

There is a friendly debate going on at Prawfsblawg about whether people who have PhDs or JSDs in law are entitled to refer to themselves as “Dr. so-and-so.”  Skepticism seems to be the order of the day; here are quotes from Paul Horwitz and Jeff Yates, respectively:

Although I think there’s a good deal to be said for obtaining JSDs or Ph.D’s in law, we might think about whether that trend represents a similar claim to authority and respect for law as an academic discipline; and if those folks start demanding to be called “Doctor,” we’ll know something’s up.

[I]s it appropriate to refer to yourself as “doctor” if you have a Juris Doctorate? A Ph.D.? This seems to bring up a number of concerns  — Who “earned” it? Is it misleading? Why do people need such titles anyway?

This debate is indicative of the insularity of American and Canadian legal academia.  Outside of the U.S. and Canada (and I’m not even sure about Canada), no one would ever question the right of someone who has PhD in law to call himself or herself “Dr.”.  Nor would anyone outside of the U.S. or Canada ever question whether law is an academic discipline.  If anything, the debate speaks to a certain professional insecurity in North America, where law school is professionalized in a way that it is not in most other countries, including English-speaking ones like the UK and Australia.  Not that I in any way blame North American legal academics, especially those in the U.S.: insecurity about whether law is an academic discipline is natural in a legal environment in which there is constant pressure on academics to produce “useful” — i.e., “non-academic” — scholarship.  If I felt disciplinary pressure to produce pedantic scholarship of immediate practical use to lawyers and judges, I’d probably begin to question whether law was an academic discipline, as well.  Fortunately, there are hundreds of American and Canadian legal scholars who resist that pressure and produce superb “academic” legal scholarship that not only increases our understanding of law as an intellectual discipline, but enriches legal practice, as well.  (You don’t have to be Derrida to know that the academic/practical binary is an unstable one.)

I also fail to see why JSDs should not call themselves “Dr.”, assuming that they have produced a dissertation that is equivalent to the one required by traditional PhD programs in law (80,000-120,000 words, the size of an average book).  I suppose it’s possible that JSD requirements are lower at some U.S. law schools, but that is certainly not true across the board.  My colleague Kirsty Gover — “Dr. Kirsty Gover,” according to her Melbourne name-plate — completed her JSD at NYU, and her brilliant dissertation on tribal constitutionalism was recently published by Oxford University Press.  She is every bit the doctor of law that a PhD in law is.

Finally, I’d like to turn the “Dr.” debate around and ask why Assistant Professors and Associate Professors in the U.S. and Canada (to say nothing of adjuncts and non-tenure-track legal instructors) should be entitled to call themselves “Professor.”  That is, of course, a uniquely North American phenomenon — in most other countries, particularly in the common-law world, “Professor” is a title reserved for scholars who have reached the pinnacle of legal academia, normally after years if not decades of work.  In such countries, it would be the height of arrogance for a lecturer in law to call himself “Professor” — something I’ve learned the hard way as I’ve had to adjust to being called “Dr. Heller,” “Mr. Heller” (before I obtained my PhD), or simply “Kevin” instead of “Professor Heller,” my title as a brand-new Assistant Professor at the University of Georgia.  At Melbourne, not even Associate Professors, a title that itself indicates substantial distinction in the field, call themselves “Professor.”  Unless you are a full professor, you’re a lecturer.  So isn’t the American and Canadian practice of title inflation simply questionable North American exceptionalism?

Readers –  North American and non-North American?

The “Unauthorised Reproduction” of Treaties?

by Duncan Hollis

As I mentioned a few weeks back, I’ve been collecting treaty clauses for my book, The Oxford Guide to Treaties, on everything from NGO participation in treaties to their denunciation.  In doing so, I tried to cast a wide net, sampling treaties from a wide variety of bilateral and multilateral contexts involving all sorts of States and all sorts of subjects.  As part of that effort, I’d wanted to include some treaties drafted under UNIDROIT‘s auspices.  But, when I went to do so, I encountered the following warning on UNIDROIT’s website for the Convention on International Interests in Mobile Equipment and its Protocol:

Unauthorised reproduction of these texts (other than for personal use) is prohibited: requests for authority to reproduce the texts should be addressed to the UNIDROIT Secretariat (info [at] unidroit [dot] org).

I’d never seen anything like this with a treaty instrument.  But I took the path of least resistance and e-mailed UNIDROIT for permission to sample some of the convention’s final clauses for the book.  I had a brief exchange with a UNIDROIT officer to clarify my request, which led to . . .  nothing. Radio silence.  Given other demands on my time, I decided the world could live without any UNIDROIT treaty clauses in my sample set, and I moved on to other treaties.

Still, looking back on it now several months later, I remain puzzled by the UNIDROIT pronouncement.  Was UNIDROIT asserting some sort of intellectual property in these treaties, and, if so, under what authority?  I know that, notwithstanding UN Charter Article 102, some States continue to conclude “secret” or “classified” treaties (both the US and the Netherlands have domestic statutes authorizing the practice), in which case readership is limited to only those within the respective State governments or IOs cleared to access them.  And, of course, there’s the idea that many treaties will not afford individuals the right to invoke the treaty in litigation, as opposed to treaties that do accord private rights of action.  But the UNIDROIT qualification is quite distinct from such issues.  It’s not that the treaty text is secret — indeed, you can download it on the UNIDROIT website.  And, the subject-matter of this treaty — international financing of mobile equipment — inevitably means that its terms regulate the rights and duties of not just States, but individuals and other non-State actors as well.

So, what does it mean for UNIDROIT to purport to prohibit “unauthorised reproduction” of this Convention and its Protocol?  There’s an exception for “personal use” but that confuses me too.  I can’t shake the image that it’s OK to print out a copy of the Cape Town Convention to display on my wall (because that’s the sort of thing I might do with a treaty, but really, who else would?).  But what if I wanted to reproduce a copy of it to provide to a client?  Or, what if I wanted to append it to a law review article on the Cape Town Convention itself? And, that’s not even getting into enforcement questions — namely, under what law is reproduction prohibited, and who would enforce it in case of a violation?

I’d be interested to know what others make of the UNIDROIT assertions of authority over distribution of treaties negotiated under its auspices.  Can UNIDROIT do this?  And, even if it can, is it a good idea to do so?