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April 07, 2009

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'Transnationalism' is also a very common subject of study now in international relations, history and I'm sure many other fields. While there's some dispute over the exact meaning of the word (many argue it's just a faddish term for 'international'), generally speaking it denotes phenomena that cross national boundaries but don't fall under the category of formal state-state relations. International crime, terrorism, health issues, environmental issues, culture, intellectual trends, that sort of thing. Koh's work, which I'm quite interested in now, seems to me to be an example of applying this same framework to the study of law.

By which I mean, this seems to be yet another example of uninformed conservatives picking up some concept, quotidian to those with an interest in the field, out of context and running wild with their paranoid imaginations. In many cases, of course, this principle gets extended to individual people too.

Also, publius, I totally agree with your comments re: normative/descriptive analysis. This is something I run often into, and I feel like it always tells me a lot about the person who confuses the two: namely that they cannot conceive of having an intellectual curiosity in a subject separate from a strong (probably pre-existing) normative stance.

We must eliminate the pernicious influence of foreigners on our legal system by immediate adooption of a broad rule permitting recovery of consequential damages for breach of contract!!

http://en.wikipedia.org/wiki/Hadley_v._Baxendale

Oh, and somewhat off topic, but talk about your irony--follow the Ed Whelan link in the post, and you'll find yourself at National Review Online, where you will be asked to show your oppostion to EFCA by signing a petition . . . :)

Remember that there’s a difference between descriptive and normative arguments.

To be fair, the Bush Administration denounced "reality based" government, so railing against merely descriptive work may be unacceptable to the right if the phenomenon being described is undesirable to them. (This is, of course, snark, but there's a serious argument here about a certain kind of ideological radicalism. For elements of the right that wish to remake reality, mere realism is unacceptable.)

On a more serious note, do those who created this meme on the right believe as a matter of fact that transnationalism is a grave threat, or do they simply understand that it provides an essentially cost-free (to those opposing Koh) shot at ratf***ing Obama? They're not making a truth claim; they're engaging in politics. And this kind of politics goes back at least as far as the Nixon-Douglas Senate campaign. It's worked more than it's failed. It may not work now, but one can hardly be surprised that they're trying.

Ooops....that first sentence out to read:

"o be fair, the Bush Administration denounced 'reality based' government, so merely descriptive work may be unacceptable to the right if the phenomenon being described is undesirable to them."

And "ought" for "out."

This has been another edition of "commenting before the first cup of coffee."

One World Government rears its ugly head again.

Ben, the small portion of the population that considers itself Republican (about 25% according to the latest Pew poll) is becoming more strident and defensive.

They are like a cornered rat, which makes them specially dangerous at this time.

Sure they lie, because the truth works against them. Their ideology has been proven wrong by the real world, so they create an alternate reality, which is their only conceivable path back into power.

Same thing holds on the torture issue. Hinderaker talks about water boarding as if it is the only way the US tortured, and then that only 2-3 people were subjected to it (without a shred of evidence to coorborate that claim) and then that even tht isn't really torture.

Unfortunately, Fox News continues to be the most watched news cable network and they promote the same lies, including the lie that Obama wants to confiscate all the guns in the country, which may have contributed to the death of 3 police officers.

One World Government...

Are these the same black helicopters and blue-helmeted stormtroopers we stood ready to fight 15+ years back? And can we assume that "Europe's leftist elites" are properly represented at both the Trilateral Commission and the Carlyle Group?

Small point, but there's no such thing as British law. You mean English law. The Scottish legal system is separate, being based on Roman law.

Are these nativists and uninformed conservatives highlighted in order to contrast them with the extremely well-informed electorate that would no longer need to worry about their car payment and mortgage after the election of our president? I can say for myself that I would not be interested in a human rights commission like that in Canada that monitors public speech for unacceptable content.

If there is a link to "British or English for Dummies" guide, I would love to see it.. I feel like I screw it up all the time

byr - good points. I might actually post some of them later

Well, these would be "shameful" attacks if this pack of raving paranoiacs had any shame.

Did these guys flunk "Playing with others" in pre-school?

Also, publius, I totally agree with your comments re: normative/descriptive analysis. This is something I run often into, and I feel like it always tells me a lot about the person who confuses the two: namely that they cannot conceive of having an intellectual curiosity in a subject separate from a strong (probably pre-existing) normative stance.

Somewhat off-topic/tangential, but I had a recent late-night-drinking discussion with some friends during which one of my associates complained to me (why me?) that gas prices hadn't, in his view, fallen far enough given the fall in oil prices. This represented a conspiracy of some sort to him, not that he had any numerical analysis of changes in gas prices versus oil prices.

When I brought up the fact that, while there is obviously some correlation between gas and oil prices, they are separate markets with different pricing inputs, his response was, "Must be nice." I assumed this was to imply that I had no concern over the price of gasoline or that I enjoyed paying more for gas than some undefined but lower price.

Of course he's correct. Being an engineer at a public agency and the sole supporter of a family of five, not only am I swimming in money, but I have much to gain from gasoline price fixing.

I actually think that Koh's transnationalism is about "depriving American citizens of their powers of representative government" but NOT about "by selectively imposing on them the favored policies of Europe’s leftist elites."

So far as I can tell from the 5 or 6 articles I've read (of Koh not about Koh), it is fake process to justify the policy outcomes that Koh wants.

If he likes the outcome or direction of the transnational process (say on the death penalty) he is all about it. If he doesn't (say Sharia or relatedly on free speech) transnationalism doesn't have effect because it goes against the important concerns of the United States.

Transnationalism as used by Koh is just a rhetorical game, not a real analytic tool.

They might want to check this out, too: http://abovethelaw.com/2009/04/yale_law_school_conservatives.php

It's only the fringers that are against him, not the intelligent ones.

"If you look closely, you’ll see that this type of nativist paranoia is...."

Something that goes back seamlessly through the rightwing/John Birch Society paranoia in the late Forties and through the Fifties and early Sixties about the UN, One World Government, and as I discussed here a few months ago, the Bricker Amendment.

But the same thread of fear of non-Americans continues to go back directly to the Know Nothings.

Which goes back to the nativist movement of the 1840s, and which can further be traced back to the original Alien and Sedition Acts.

If there is a link to "British or English for Dummies" guide, I would love to see it.. I feel like I screw it up all the time

Me too! Having being educated in three different 'dialects' of English now, I'm totally confused about spelling and syntax.

The Economist Style Guide has a good brief account of the major differences between US/UK English, maybe there's an online version?

Are these nativists and uninformed conservatives highlighted in order to contrast them with the extremely well-informed electorate that would no longer need to worry about their car payment and mortgage after the election of our president?

?@??@??

I voted for Obama. Does this mean I don't have to pay my mortgage anymore?

"Having being educated in three different 'dialects' of English now, I'm totally confused about spelling and syntax."

I may be wrong, but it's my impression publius wasn't asking for a guide on the variant usages, but rather was asking for a guide as to when to refer to things British versus things English.

To which, of course, the answer is to refer to things British as British, and things English as English (or Welsh as Welsh, Scottish as Scottish, or Northern Irish as Northern Irish). :-)

(Really, you just have to pick the distinctions up out of familiarity; that Scottish law is Scottish is an essential detail of the incorporation of Scotland into the United Kingdom. It's just a matter of reading history.)

Then there's the matter of when to refer to the United Kindom versus Great Britain versus the British Isles, and so on, which really isn't that complicated, but can trip up people unfamiliar with the overlapping categories. Here's oone guide to that.

http://crookedtimber.org/2006/07/13/engerland-engerland/>Here's an entertaining Crooked Timber thread on the tangly subject of labeling in relation to the British Isles....

If he likes the outcome or direction of the transnational process (say on the death penalty) he is all about it. If he doesn't (say Sharia or relatedly on free speech) transnationalism doesn't have effect because it goes against the important concerns of the United States.

That's pretty much how persuasive nonbiding authority always works.

So far as I can tell from the 5 or 6 articles I've read (of Koh not about Koh), it is fake process to justify the policy outcomes that Koh wants.

What exactly is the criteria for a fake process to justify the policy outcomes that the author prefers? Because it seems like this is the sort of statement one can make about anyone they disagree with.

If he likes the outcome or direction of the transnational process (say on the death penalty) he is all about it. If he doesn't (say Sharia or relatedly on free speech) transnationalism doesn't have effect because it goes against the important concerns of the United States.

There are alternatives that you don't seem to have considered. For example, sharia might merit different treatment from abolition of the death penalty because of universality: I believe that sharia is used in far fewer countries than have abolished the death penalty, especially when one restricts their focus to pluralistic or multiethnic societies. As for freedom of speech, it is not clear to me that restrictions differ much in practice between the US and peer nations nor is it clear that other nations have reached anything like the consensus they've reached regarding the death penalty.

Of course, you could simply refuse to consider such alternatives and simply impute bad faith to people you disagree with. That makes things much easier.

Transnationalism as used by Koh is just a rhetorical game, not a real analytic tool.

So it is just like originalism or textualism?

As a Canadian, I have a slightly different perspective. The Supreme Court of Canada fully endorses Koh's approach. There is no conspiracy, since nothing could be more open. They love to go to international judicial conferences and to be cited by the Madagascar Constitutional Court.

At one level, there's absolutely nothing new about this. We always cited Deleware for novel points of corporate law and English courts for the law of negligence.

And yet. The conservatives are right to be afraid, and many social democrats have the same concerns. The international judicial caste has its own values -- more market oriented and less traditionalist than domestic electorates. They don't approve of spanking or protectionism and they'd find white people with Southern accents who have eight children, own a dozen rifles and go to megachurches very alien.

I mean, this is the crowd you and I hang with, publius, and you and I both know our crowd has different values than the people we went to high school with.

Of course, none of that justifies holding up Kuo's nomination -- for the reasons Hilzoy points out.

Sorry, Koh.

I'll shut up now.

The international judicial caste has its own values -- more market oriented and less traditionalist than domestic electorates.

But isn't this true for the domestic legal profession as well? In fact, isn't the real problem here that political elites are far more market oriented and less traditionalist than domestic electorates?

They don't approve of spanking or protectionism and they'd find white people with Southern accents who have eight children, own a dozen rifles and go to megachurches very alien.

So? Doesn't this problem exist with our current legal profession? And wouldn't an Islamic jurist from Indonesia actually have rather relevant (albeit not identical) experience? I don't know of any societies that do not have large groups of people that are significantly more religious than average or have large families or regional accents. Admittedly, there are very few countries in the world that have anywhere near the same penetration of guns as the US does, but perhaps the introduction of more Iraqi jurists onto the international legal scene can remedy that problem.

Beyond that, I'm confused why it matters that some justices find some groups of people alien. Don't you have to show that their ignorance changes

Turbulence,

I agree that appellate judges are like the domestic legal profession in this respect -- only more so.

If appellate judges in one country look to other appellate judges in another country as their peer group (i.e., the people whose praise they most crave and whose disdain they most fear), that's going to change how they decide cases.

I'm not sure whether that's good or bad, but it is perfectly rational for conservatives (and left-populists) to fear it.

I agree that appellate judges are like the domestic legal profession in this respect -- only more so.

Why more so? Domestic judges share cultural norms and history in addition to the groupthink of elites. Domestic and international judges though share only the standard groupthink of elites.

If appellate judges in one country look to other appellate judges in another country as their peer group (i.e., the people whose praise they most crave and whose disdain they most fear), that's going to change how they decide cases.

I understand that you believe this to be true, but I have no idea why you think it is true. It seems that it all depends on how strongly they crave approval and fear disdain from their peer groups. If the answer is "not very much", then I seriously doubt we'd see jurists changing how they decide cases. Moreover, I don't see how jurists can expect feedback given that the vast majority of decisions they make will never be read by foreign jurists. Even when decisions are read, it seems that it takes a very long time for international feedback to reach the original judges. The speed and scope of feedback present just pales in comparison with the feedback that judges get from their immediate colleagues, attorneys, local professional societies, and the press. All of those groups seem less diverse than the set of global jurists one might appeal to.

I'm not sure whether that's good or bad, but it is perfectly rational for conservatives (and left-populists) to fear it.

I haven't yet seen a good explanation for why this fear is rational.

Material incentives on appointed judges are not supposed to exist. So questions of approval and the audience for which they are writing are important.

I think you underestimate how much time high-level judges spend at international conferences and how pleased they are to see themselves cited by international peers. Of course, Scalia doesn't care -- he gains perverse satisfaction out of being thought a yahoo by these people. But, according to Toobin, both O'Connor and Kennedy cared a lot, and it moved them to the left. I can tell you that the Supreme Court of Canada justices care.

I wouldn't exaggerate how far this has gone.

The average judge is writing for an intermediate appellate court (first of all), for the local bar (second of all), for the public (in high profile cases) and last of all for academic lawyers.

The Supreme Court of Canada, on the other hand, is writing for academic lawyers (first of all), the public (in high-profile cases), the bar more generally and foreign judges and international tribunal-members that they meet at conferences (and they go to a lot of conferences).

I just think it's reasonable to think that the last will be a bigger audience in the future, just as it is already a much bigger audience than it was ten or twenty years ago.

Material incentives on appointed judges are not supposed to exist. So questions of approval and the audience for which they are writing are important.

Sure, but you haven't addressed my question about relative importance of transnational versus local colleagues.

I think you underestimate how much time high-level judges spend at international conferences and how pleased they are to see themselves cited by international peers.

Well, how often do they attend international conferences? I'm guessing that they spend less than 10% of their working hours attending such conferences. Am I wrong?

But, according to Toobin, both O'Connor and Kennedy cared a lot, and it moved them to the left. I can tell you that the Supreme Court of Canada justices care.

I'm a little bit unwilling to take one person's opinion as gospel regarding the internal thought processes of other people.

The average judge is writing for an intermediate appellate court (first of all), for the local bar (second of all), for the public (in high profile cases) and last of all for academic lawyers. The Supreme Court of Canada, on the other hand, is writing for academic lawyers (first of all), the public (in high-profile cases), the bar more generally and foreign judges and international tribunal-members that they meet at conferences (and they go to a lot of conferences).

This might be true; I just don't see any evidence that it is. All you've done is assert your opinions.

I just think it's reasonable to think that the last will be a bigger audience in the future, just as it is already a much bigger audience than it was ten or twenty years ago.

But why do you think it will get much bigger? Trends in general do not continue indefinitely. Do you think budgets for judicial travel will double ever year for the next decade? Do you think the price of international travel will plummet? Do you think judges five years from now will spend 50% of their working hours at international conferences?

And even if you're assertion is correct (why should we believe that again?), doesn't having larger audiences dilute opinions? I mean, I find it much easier to make one of my friends happy than to make every single person I know happy at the same time. I find it much easier to care about the opinion of a small number of people than a large number of people. But maybe that's just me.

I'd say the standard of proof for justifying "the conservatives' fear is rational" is pretty low. Obviously, I can't prove what motivates judges. And I wouldn't claim that they live in fear of what their international colleagues think of them and would never dissent from the Humanrightsintern line. It's more about how a milieu influences decision-making. Even if such things are susceptible to rigorous social science analysis, which is arguable especially in light of the secretive nature of appellate courts, I don't propose to do one to win an argument on a blog thread.

Toobin refers to statements Kennedy and O'Connor both made. He also talked to a lot of clerks. As for the amount of time they spend, a few three-day conferences a year can build up a sense of community.

"As for freedom of speech, it is not clear to me that restrictions differ much in practice between the US and peer nations nor is it clear that other nations have reached anything like the consensus they've reached regarding the death penalty."

I'm not sure who you count as peer nations, but Canada and the UK for example have very different practices with regard to free speech. (See the recent Mark Steyn inquisition by the Canadian Human Rights Commission for example). The consensus seems to be (among peer nations) that we go much too far in free speech (at least if you look at their laws, and if you look at their public opinion polls, they don't even have a broad consensus against the death penalty).

Why focus on the craziness about Koh? You're on the edge of taking wingnut feces-flinging seriously, while ignoring the cowardice of the Democratic President and Congress in not just releasing the OLC memos and telling Senate torture-touting troglodytes to pound sand.

"...while ignoring the cowardice of the Democratic President and Congress in not just releasing the OLC memos and telling Senate torture-touting troglodytes to pound sand."

How is Hilzoy ignoring that by blogging about it?

Hilzoy also blogged about the non-release of the torture memos here.

This post is by publius.

And although he rightly deals with the "objections" to Harold Koh as the dredged-up craziness they are, publius' focuses on the objections themselves rather than their role -- just sand to throw in the gears of the confirmation process. This takes the focus off the people with the power to say "nuts" to this right-wing blackmail, Obama and the Democrats.

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Whatnot


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