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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?

Bountygate, the Nuremberg Defense, and Ordering vs. Physical Perpetration

by Kevin Jon Heller

The Nuremberg defense pops up in the strangest places.  As the NFL fans among our readers know, Commissioner Roger Goodell has suspended four New Orleans Saints players for their role in Bountygate — a program whereby Saints players would get financial bonuses for intentionally injuring other players on the football field, essentially the most heinous crime a football player can commit.  What is most remarkable about the reaction from sportswriters to the unprecedented suspensions is how many almost reflexively invoke the Nuremberg defense in order to minimize the players’ culpability. Here, for example, is Mark Kreidler at ESPN.com…

Is a Use of Force the same as an Armed Attack in Cyberspace?

by Duncan Hollis

I’m just back from the U.S. Naval Academy and a great conference put on by the Stockdale Center for Ethical Leadership:  Warfare in a New Domain: The Ethics of Military Cyber Operations. Ed Barrett pulled together a truly impressive group of technologists, international lawyers, philosophers, ethicists, active duty military personnel and US Government officials to weigh in on existing cyberthreats and the appropriate legal and ethical frameworks for responding to them.  I may blog more of the details later, but here are three quick take-aways from our two day conversation:

1) Cyber is hot.  When I first started writing in this area, I frequently had to fend off charges that this was just fodder for international lawyers who happened to like science fiction.  We’ve come a long way since those days.  Cybersecurity is front and center in Congress, and cyberthreats and cyber-capacities have moved into the front seat in national security circles.  Although I’m not sure everyone agrees with the cyber-arms race idea, it is true that the technological capacity is on a steep upward trajectory and the actors involved are constantly expanding (I’m told, for example, that Zimbabwe is the latest in a long list of States to get together its own cyberforce).

2) We don’t agree on why cyber is hot.  Over the course of the conference, there were dissonant voices on what the cyberthreat really is.  First, there’s what we might call the “Digital Pearl Harbor” crowd — folks worried about, and looking to head off, a massive, large-scale cyberattack with significant effects on the civilian populace (think — shutting down the U.S. power grid).  A related view, are those clearly worried about how nation States will deploy cyber in armed conflicts, and what methods exist to deter escalation to such conflicts.  In contrast, there is a growing, and vocal group, who say that to focus on cyberwar or the most dangerous cyberthreats is to ignore the real problem — China.  This is the “China’s eating our lunch” crowd, who blame cyberespionage by China and its proxies for the theft of petabytes of data, including intellectual property, business plans, R&D, etc from the private sector in what some call the greatest wealth transfer in history.  Finally, there are those who view the cyberthreat as more diffuse, although perhaps no less dangerous.  This view may best be summarized by the idea of a “death by thousand cuts”; that is, we shouldn’t expect drama in cyberspace so much as low-level but systemic attacks and threats that in the aggregate may significantly impact the United States as a nation.

3) We don’t know how law should deal with State cyber operations.  For starters, we are seeing (just as we have in the terrorism context) claims that lawyers and law are getting in the way; that States need to operate in this new environment without rules. For those of you who’ve not seen it, I recommend this recent exchange between Stewart Baker and Charlie Dunlap on the relative merits (and demerits) of this idea.

Then, even among those willing to concede a role for law and lawyers, there are significant differences of opinion on the relevant legal frameworks.  The US and like-minded States have taken the position that the Law of Armed Conflict (LOAC) can apply in cyberspace; Russia agrees, but insists other new norms must be applied to limit “information” that is destabilizing as well.  For its part though, China says they’re not sure the LOAC has any role to play at all, leaving the issue to law enforcement or organizations like the ITU.

Finally, even on the more specific legal and ethical issues that formed the core of the McCain Conference this year — namely military cyber operations — it seems we’re still trying to figure out how to analogize existing rules into cyberspace.  We’ve been doing that for some time now, but I must say I’m surprised to see how little progress has occurred.  For example, I was struck by how many reasonable people disagreed on the question of whether Stuxnet constituted a use of force or an armed attack.

Which brings me to my last point, and one that was quite contested at this conference — whether there is a gap between a prohibited use of force under UN Charter Article 2(4) and an armed attack sufficient to trigger an Article 51 right of self-defense.  Although I’d always understood that simply because something constituted a use of force, that didn’t mean that it rose to the level of an armed attack for self-defense purposes.  In other words, there is a gap between armed attack and force.  But at least one US government lawyer suggested at this conference that there is no such gap in cyberspace, and that this may even be the official US Government position for cyberspace.  I’d be interested in what readers make of this position, both as to the original kinetic understanding of the relationship between Article 2(4) and 51 and how it translates to cyber.  Simply put, are all uses of force in cyberspace armed attacks?

Dan Joyner: Why I Won’t Attend the Jessup Competition Again

by Kevin Jon Heller

[The following is a guest post by Dan Joyner, Professor of Law at the University of Alabama.  Our thanks to him for contributing it.]

So, as you probably guessed from the title of this post, it’s going to be a bit of a rant. But this has been festering inside me for the past five years and I want to get it out.  I’m on a plane right now flying back from the U.S. Midwest Regional of the Jessup International Law Moot Court competition in Chicago with my team.  I’ve been the faculty advisor for the Jessup team at Alabama for the past five years. During that time, my team has competed in Miami, Houston, and Chicago, as well as in the international rounds in D.C.  I’ve gone with my team every year to each one of these venues. So I’ve seen a lot of the Jessup process, in a number of different venues in the U.S., and I’ve put in A LOT of my own time coaching my team and travelling with them. And here I mean A LOT of my own time. Many, many hours advising them as they research their memorials, then three to four per week oralist round practice sessions in the lead up to the regional.

I have noticed over the years that, at least at the regional locations we’ve been in, not many of my international law faculty colleagues have accompanied their teams as I have done. Some have, to be sure. But more often than not, their students are either there by themselves, or they are accompanied by a non-faculty team coach.  And in my anecdotal conversations with students from other schools’ teams, it is usually the case that they have not been coached seriously by the international law faculty members at their law school. I now think that these faculty colleagues in international law at other schools have been much wiser than I have in this regard.

I have learned over the past five years through sorely frustrating experience that the Jessup competition is not in fact an international law moot court competition, notwithstanding this being stated in its name. This is, in fact, simply false advertising for the competition. In reality, Jessup is just another law student moot court competition in which style trumps substance, and where good used car salesmen typically come out on top.  As such, the Jessup competition is simply not worth any serious investment of time by those of us who actually care about the substance, rigor and correctness of international legal analysis and argumentation. Frankly, sometimes I think my students could be citing to sources of Kryptonian law, and if they did so confidently and persuasively, they would be just as well off.

The clearest evidence for this conclusion is that if, counterfactually, the Jessup competition was in fact about international law, then it would be staffed by memorial and oralist round judges who themselves had a decent knowledge of international law. In my experience at all of the regional rounds in the U.S. at which my team has participated over the past five years, this has definitely not been the case…

On Comment-Free Blogging (Updated)

by Kevin Jon Heller

In the comments to my previous post, I described refusing to allow comments on a blog as an “act of cowardice.”  Ben Wittes, one of the contributors to Lawfare, a blog that does not allow comments as a matter of policy, doesn’t appreciate the description:

Anyone who wants to understand why Lawfare does not take comments need only take a brief look at this comment thread over at Opinio Juris blasting Lawfare–and others–for not taking comments. As the old saying goes, the thing speaks for itself.

I’ll leave it to readers to decide whether our comments policy is, as Kevin Jon Heller puts it, “an act of cowardice” or whether it is, as I like to think of it, what we used to call in the news business editorial judgment. But it certainly is, as Benjamin G. Davis puts it, “a control mechanism,” an effort at “total control of whom [sic] can post.” We run this blog to provide useful information and to express our views, not to operate a free-for-all for anyone who fashions himself as having something to say. Anyone who wants to comment should feel free to send an email, which we often post, or to post to our Facebook page. Or, in the alternative, it seems that you can post comments about Lawfare on Opinio Juris. Or, if you really feel strongly about it, you can start your own blog.

The offending comment thread to which Ben refers consists of precisely three comments addressing the issue at hand.  The first criticized closing comments on an Opinio Juris post, not a Lawfare post.  The second was mine, making the aforementioned claim.  And the third was an extremely reasoned critique of blogs that do not allow comments — and of the exclusionary nature of the national-security-law world in general.  That’s it.

I continue to believe that refusing to allow comments on a blog is indefensible — just as I believe that it is indefensible to comment on a blog anonymously (except in situations where one’s job could be threatened).  Ben describes Lawfare’s no-comment policy as “editorial judgment.”  It seems to me that the only editorial judgment involved is that no one other than the contributors to Lawfare — and those whose emails Lawfare deigns to post — have anything of value to say.  Indeed, the elitism drips from Ben’s post; just consider his claim that to allow comments on Lawfare would be “to operate a free-for-all for anyone who fashions himself as having something to say.”  How dare readers have the temerity to think they’re good enough to respond to Ben — on Lawfare, no less!

As a blogger who is prone to strong opinions, I am the first to admit that reading comments can be a painful experience.  I have been accused of being anti-Semitic; of being a self-hating Jew; of not believing that Israel has a right to exist; of being anti-American; of being a communist; and so on.  I’ve also had my mistakes pointed out to me more than once.  But that is simply the price I pay for being something of a public intellectual.  Blogs are not, as Ben assumes, simply fora for “experts” to make themselves heard — the online equivalent of the New York Times editorial page (which Ben never tires of attacking).  They are places for discussion and debate, where some voices may be more important than others but no voice is excluded.  Are bloggers obligated to allow comments?  Of course not.  But let’s not pretend that refusing to allow them is some kind of noble act designed to ensure the integrity of academic debate.

UPDATE: In light of Marko’s comment below (!), I have changed my mind about whether a no-comment policy is cowardly.  It certainly can be, and I suspect that most bloggers who refuse comments are simply afraid of criticism.  But it is not necessarily cowardly; it may simply reflect the blogger’s belief, so well expressed in Ben’s post, that the unwashed masses have nothing useful to contribute to discussion of complicated legal issues.  Frankly, I think that kind of elitism is worse than cowardice.

UPDATE 2: Ben responds — sort of — at Lawfare.  There isn’t much more that needs to be said on the issue; Ben is absolutely right that he and his colleagues are in no way “under some obligation to design this forum to Heller’s specifications.”  They are well within their rights to run a blog without comments, just as I am within my rights to criticize them for doing so.  (And in my humble opinion, describing a blog that doesn’t take comments as a “forum” seems like a stretch.)

For the record, I am delighted that my friend Steve Vladeck has joined Lawfare as a permanent contributor.  Though no substitute for genuine openness, the ideological diversity that Steve brings to the blog is welcome, and the invitation to him to join speaks well of Ben and the others.

A New Fulbright Fellowship in Foreign Governments (including a Focus on Justice)

by Duncan Hollis

I’m looking forward to our joint symposium on Marko’s impressive book on extraterritorial treaty application. But before that begins, I wanted to flag a new opportunity for those looking to get international experience outside the United States. The Fulbright Program is inaugurating a new ‘Public Policy Fellowship’ for academic year 2012-2013. Here’s how they described it to me:

The Fulbright Public Policy Fellowship will allow fellows to serve in professional placements in foreign government ministries or institutions and gain hands-on public sector experience in participating foreign countries while simultaneously carrying out an academic research/study project. Fulbright Public Policy Fellowships will be offered in the following countries:

  • Bangladesh
  • Cote d’Ivoire
  • Dominican Republic
  • Guatemala
  • Haiti
  • Jamaica
  • Mongolia
  • Nepal
  • Nigeria
  • Thailand
  • Tunisia

U.S. Embassies, Fulbright Commissions (where applicable), and host country governments will coordinate appropriate professional placements for candidates in public policy areas including, but not limited to, public health, education, agriculture, justice, energy, environment, public finance, economic development, information technology, and communications.

Candidates must be in receipt of a master’s or J.D. degree by the beginning of the Fellowship (Summer – Fall 2012) or be currently enrolled in a Ph.D. program.  Applicants must also have at least two years of work experience in public policy-related fields.

The Application for the Fulbright Public Policy Fellowship opened on November 4, 2011.  Applicants must complete and submit the Fulbright U.S. Student Application including the supplemental Fulbright Public Policy Fellowship section by February 1, 2012.  Departure for assignments will begin in Summer – Fall 2012.

To access an application go here.