A Little Comparative Legal History

This afternoon I had the pleasure of attending talks by two German Academic Exchange Service (DAAD) Fellows. The first was a very engaging discussion about theories of criminal punishment and the use of preventative detention in the German penal system. The second was an historical perspective on the development of abortion law, with a comparison between the US development leading up to and surrounding Roe v. Wade and German jurisprudence around the same time.

The speaker, Felix Lange, remarked that it was a striking contrast in the jurisprudence of otherwise similar Western democracies. Obviously, in Roe the Supreme Court ruled that, as a matter of right to privacy, women in America have the right to an abortion. The German Constitutional Court took a different view, it ruled that the right to life in the German constitution extended to protect the unborn.

Why the dichotomy? The proposal that the Courts were merely responding to the social conscience of the people was held up as a major reason for the opposing rulings. The German people still had the memory of the policies and horrors of the National Socialist movement fresh in the collective conscience. The desire to distance themselves from that history may have influenced the Court toward a ruling that came down firmly on the side making a clear statement for the sanctity of life.

An interesting proposition, don't you think?

ITAR

So, this post really has no point other than just to point out how complex international business can get and to serve as my outlet for random thoughts involving some of my work. Enjoy.

If any of you know what ITAR, then you probably know how much of a mess the regulations can become. For those of you who don't know, ITAR is the abbreviation for International Traffic in Arms Regulations. The name of it is pretty self-explanatory and I doubt I need to go into detail on the various aspects of it for you to get the picture. Basically, it is a regulatory system for controlling the manufacture and distribution, internationally, of munitions and technology with predominately military applications. It regulates who may develop, export (and to whom), and who may even oversee the work of any item that falls within its parameters. Overall, it is not a regulation that I have much to complain about, other than it may cause awkward work environments, but that's another story.

Why am I wondering about this? I was working on a short paper involving regulatory reform and its impact on a corporation when I looked over the Joint Strike Fighter (JSF) program as a quick case study. I got to wondering about how much paperwork and hassle ITAR can cause when a civilian project for the military is being jointly worked on by international corporations and for multiple nations' militaries. The JSF program is certainly in that camp. The list of countries involved is small, but diverse, and various components are being developed by international teams (e.g. the engine is a joint project between General Electric and Rolls Royce).

To keep this in the terms of looking at international relations, has anyone else taken a look at the Chinese development of a 5th Generation fighter? Take a look at a variety of articles and posts about the Chengdu J-20.

Exercising Freedoms

Not to be confused with "Exorcising Freedoms." Sorry, it is Halloween time, so a slight reference was necessary. (No matter how bad the pun.)

Two things combined to bring you, my faithful readers, this post. First, I had the pleasure of attending a symposium on the First Amendment right to freedom of speech last weekend at the University of Virginia Law School. The symposium featured some of the great legal minds, such as Dean Post of Yale Law School, Fred Schauer of UVA Law, Vincent Blasi from Columbia Law, and Eugene Volokh of UCLA Law. The highlight of the day was the keynote speech delivered by Chief Judge Alex Kozinski of the 9th Circuit.

Judge Kozinski revealed to the crowd of students and professors a little secret about the freedom of speech. In the internet age, he believes, speech protects itself. He spoke about the viral nature of information on the internet, how attempts to enforce copyrights and remove web content that infringes on individual privacy sparks a backlash in the throngs of largely anonymous readers leading to the wider dissemination of information than the original act of passively allowing websites to host the content ever would have.

Obviously, Kozinski still believes in the validity of constitutional protections afforded by the First Amendment, but his point is that constitutional restrictions on the written word hosted on the nebulous world wide web of computers are fruitless.

In a(n unintentional) corollary to that speech, Hack a Day just posted an interesting hacker backlash to courts attempts at regulating internet peer to peer file sharing.

http://hackaday.com/2010/10/30/this-is-a-peer-to-peer-filesharing-network/

Hard wired file share ports. This is the sort of thing that Kozinski meant about the self protecting nature of the modern methods of "speech."

Alles Ist Wunderbar

I got an article in my email today that I found remarkable. At first blush, the idea of denying the success of multiculturalism seems alien to us as Americans. Even in light of Teddy Roosevelt's famous quote denouncing the place of "hyphenated Americanism," Americans seem to believe in multiculturalism as part and parcel of what being American actually means as a culture. We cling to the idea of America as a melting-pot of other cultures and pride ourselves in our inclusiveness. This view of multiculturalism reflects the formation of America and our colonial heritage. This is not the view of multiculturalism held in Europe.

I mention this as a prelude to drawing your attention to the article I mentioned already. Germany has declared its multicultural efforts a failure and is, surprisingly, becoming vocal in its efforts to promote a German national identity.

This excerpt from Germany and the Failure of Multiculturalism is republished with permission of STRATFOR.

Anyone could become an American, so long as they accepted the language and dominant culture of the nation. This left a lot of room for uniqueness, but some values had to be shared. Citizenship became a legal concept. It required a process, an oath and shared values. Nationality could be acquired; it had a price.

To be French, Polish or Greek meant not only that you learned their respective language or adopted their values — it meant that you were French, Polish or Greek because your parents were, as were their parents. It meant a shared history of suffering and triumph. One couldn’t acquire that.

For the Europeans, multiculturalism was not the liberal and humane respect for other cultures that it pretended to be. It was a way to deal with the reality that a large pool of migrants had been invited as workers into the country. The offer of multiculturalism was a grand bargain meant to lock in migrant loyalty in exchange for allowing them to keep their culture — and to protect European culture from foreign influences by sequestering the immigrants.

Read more: Germany and the Failure of Multiculturalism | STRATFOR

Oh, by the way, I hope to post a little more frequently again. Then again, law school may leave me with little in the way of extra time.

Veterans' Day

Veterans Day has an interesting history. The armistice that ended World War I went into effect on November 11, 1918 and President Wilson said these words one year later: "To us in America, the reflections of Armistice Day will be filled with solemn pride in the heroism of those who died in the country’s service and with gratitude for the victory, both because of the thing from which it has freed us and because of the opportunity it has given America to show her sympathy with peace and justice in the councils of the nations…"

It wasn't until June 4, 1926 that Congress officially recognized the 11th as a holiday, calling on all government buildings to display the flag this day and churches and schools to commemorate this day as the end of "the war to end all wars." Finally, on May 13, 1938, it was made an official holiday known as Armistice Day to honor the fallen from the First World War. After the Second World War and the Korean War, this day was changed to honor the fallen from all wars and those who have served. On June 1, 1954 the name was officially changed to Veterans Day.

So, now that you have had your history lesson for the day, take the time to thank the veterans you may know for their service to our country. If you don't know any, I invite you to take a moment to consider the sacrifices the members of our armed forces have made for your freedoms.

Lay Down a Life

Less politics today, more philosophy.

War is an ugly thing, but not the ugliest of things. The decayed and degraded state of moral and patriotic feeling which thinks that nothing is worth war is much worse. The person who has nothing for which he is willing to fight, nothing which is more important than his own personal safety, is a miserable creature and has no chance of being free unless made and kept so by the exertions of better men than himself. - John Stewart Mill

A man who won't die for something is not fit to live. - Martin Luther King Jr.

What do these quotes have in common? One is from a pacifist while the other is a justification for violent conflict, so how could they possibly say the same thing to me? They both firmly advocate a willingness to put one's life on the line for the defense of ideals or country. The main difference I can see is that Mill argues for the willingness to put a life on the line, be it mine or that of those who oppose me.

I think that contrasting Mill's statement with Dr. King's nonviolent approach reveals less of a logical difference than one might expect. They both advocate a willingness to lay down a life for the advancement of something larger than the individual; in both cases, that something larger happens to be the illusive concept of Liberty. The only difference is that the pacifist is constrained by ideology to that life only being his own, whereas Mill would argue that the choice to take a life includes that of the life of any who threaten the collective liberty of the people, not just one's own.

I'm not trying to advocate anything today. I just think that people need to be reminded that hardship is not the same as sacrifice and that allowing one's liberty to be infringed, even if one is kicking and screaming about it, is still capitulation.

A Profitable Point of View

So, I caught snippets of Obama's press conference last night pushing his health care plan. Obviously, something about it got me thinking and this isn't going to be a post about health care law and reform. When the President made a comment about how insurance premiums are rising at the same time as the insurance companies are making "record profits" I thought about the complaints of a year ago about oil companies posting record sales and profit numbers. So, I have to ask of those who think that the companies are making too much money: what is too much profit?

I'm serious. What do people mean by saying that someone is making too much money? What makes it evil to be making money during a down economy? At what amount do you decide that someone is making more money than is fair? I rarely hear anyone make the argument that people should be paid the same amount for a job that requires a lot of training and skill as for a job that requires far less training or is involved with less risky situations. For example, I don't think I know anyone who will say that I should be paid as well as a heart surgeon.

I think the idea that someone is making "more than their fair share" comes from one of two things, or a combination of them. First, their is the common mistake that the economy is a zero-sum game. If they are making that much money, there must be less money left for me, the argument goes. While budgets are (or should be, in my opinion) operated on finite amounts, the economy as a whole is much more flexible due to lending and commodities trading and more. Second, is envy. It's a simplistic explanation, but true whether we want to admit it or not. Those who cannot see how to elevate themselves are quick to think that others must be doing something wrong or unethical to have such gains in their own lives. Therefore, the playing field must be leveled, that way there is a more equitable division of assets. As I've said before, leveling the playing field only leads to lowering everyone to a common denominator, rather than raising the masses up.

Another issue I have with complaining about company profits, especially true in the case of complaints leveled against the oil companies, is that no one seems to care if the company is also at record levels of expenditures. Costs go up to the consumer, profits go up at the company, obviously the company is just pocketing the whole enchilada. Wrong. If a company is making a constant 7% on the sale price of a commodity, do you think people will complain about how much money the company is making? 7 cents on the dollar is still 7 cents, whether that's coming from a $4 gallon of gas or a $2 gallon of gas. Of course they are making twice the profit on the $4 gallon, but they are also spending twice the money to make it. Let's check my math: 28 cents from the 4 dollar gallon leaves $3.72 and 14 cents from the 2 dollar gallon leaves $1.86. Yep, twice the cost and twice the profit and still a 7% margin.

The discussion on the economic repercussions of profit/salary caps and punitive taxation on production and innovation will be left for another day. I think most readers can figure out what my opinion on that will be. So, I leave you to think about my initial question, in a rephrased format: at what point will you claim that you are making too much money?