Monday, November 26, 2007

Privilege and Power

There's an interesting apocryphal story told by journalist Bob Costas in Ken Burns' excellent documentary, Baseball. An Englishman and an American are having a conversation, and at some point it becomes an argument. The two resort to insults. The American says "screw the Queen". The Englishman says "Oh yeah, screw Babe Ruth".

The American thinks he can insult the Englishman by insulting a person who has done nothing to achieve her position other than the luck of birth. As Costas says, it has nothing to do with any personal qualities good, bad or otherwise. Who does the Englishman think embodies America? Some scruffy kid who came from the humblest of beginnings, hung out as a toddler behind his father's bar in Baltimore, a big badly flawed individual, who strides with great spirit and possibility.

I thought of that on reading a troubling story regarding the South Carolina State Supreme Court's decision to eliminate the results from one bar exam question, allowing several people to pass who otherwise would have failed. Who are the recipients of the revision? Two young women, one the daughter of State Representative Jim Harrison (R), chairman of the State House Judiciary Committee; and the other a daughter of State Circuit Court Judge, Kendall Burch.

Each state composes its own bar exam, and law students invest tremendous time (and money) during 7 years of higher education to take the exam. This includes 10 weeks immediately before the exam doing nothing but studying for the exam. It's a difficult test to be sure, but all it takes is discipline and some hard work. You learn the rules, and then you're a lawyer. It's not fun to fail, but you can take the test again as many times as it takes. Having passed the bar in the nearby state of Georgia two years ago, I find this story particularly troubling. I can guarantee, if I botched a section nobody would have helped me out and thrown a section out of the exam.

MoneyLaw is an interesting blog on legal academia in the US, which uses as an example the way major league baseball teams scout for talent in the minor leagues. One of the contributors there, and the Dean of Louisville Law School, Jim Chen makes a poignant criticism of the South Carolina Supreme Court's decision:

Legal professionals, in South Carolina and the rest of the nation, have every reason to question the Supreme Court's decision to mint 20 new lawyers who, by every account, flunked South Carolina's July 2007 bar exam. They have reason to doubt the high court's outlandishly illogical explanation. This sort of thing has happened before; now it is being reinstitutionalized anew. Not Very Bright's timeline leaves no room for doubt: this was a hamfisted, naked power play by South Carolina's judiciary, carried out at the expense of that state's bar and larger public. Yet, like many observers who are far closer to South Carolina than I am, I too expect this scandal to fade from public view as attention turns to Thanksgiving and this weekend's Clemson-Carolina football game. Panem et circenses, indeed.

The simple explanation is, as usual, correct and complete. South Carolina's lawyers, by my informal survey, are horrified by the Supreme Court's abuse of power. They rue how this episode will resonate for years, even decades, as yet another generation of South Carolinians learns that power, not prowess, that pedigree, not performance, holds the key to success. They cringe at the thought of outsiders consigning this most quintessentially Southern of Southern states to perpetual cultural irrelevance in the American pageant.

The emphasis is mine. Sadly I think no matter where you go power and pedigree have a way of trumping performance. Why aren't more South Carolinians speaking out? Jim Chen has some thoughts on that as well via conversations he's had with lawyers there:

  • "[In South Carolina,] retribution from the powers-that-be can be swift and brutal. That's not paranoia. It really is how things work here. There are no checks and balances, and if a megalomaniac rises to power, it's lights out."

  • "[Chief Justice] Jean Toal can have you electrocuted if you cross her."

  • And this gem from a commenter on FITS News for Now: “I’m embarrassed to be an attorney in South Carolina right now. . . . First it was the Court’s decision, now it’s the Bar Association bending over and taking it. No attorney is ever going to go on the record and say this, but the entire episode is disgusting, disgraceful and discouraging for everyone associated with this profession. Everyone knows so, everyone thinks so, but (the Justices) hold so much power no one dares to say anything, to say nothing of trying to hold them accountable for it.”
Troubling stuff. One wonders if pedigree outweighs performance at our august institution? Are we free to express our views?

Comments for this post have been closed, as it struck me they weren't particularly helpful.

Friday, November 23, 2007

New Convention on International Child Support Signed Today

“This Convention establishes a comprehensive system of cooperation among child support authorities, which we believe will result in more children receiving more support more quickly.” (USA delegation)

A new global Convention on the International Recovery of Child Support and other Forms of Family Maintenance has just been finalised under the auspices of the Hague Conference on Private International Law. Just after the adoption of the Final Act, the United Stated of America become the first signatory of the new Convention. The Convention aims to resolve the problems of unpaid or uncollectible child support. I posted a brief report about the work in progress on this Convention just a couple of weeks ago.

I had the opportunity to follow the negotiations since I worked as a recording secretary at the Diplomatic Session. I have the pleasure to report that the role played by Professor Beaumont gives the School of Law at the University of Aberdeen much to be proud of. Professor Beaumont was a Delegate of the United Kingdom, but more importantly he was a delegate who built bridges and sought compromises that made the success of the negotiations possible. He chaired a working party that accomplished important agreements late in the negotiations, and he was also a member of the Drafting Committee and several other working groups.

Delegates from 68 States, the European Community, and other organizations represented by, in total, 268 experts, attended the Diplomatic Session on the International Recovery of Child Support & other Forms of Family Maintenance from 5 November – 23 November 2007. 68 States and the European Community signed the Final Act of the Session in the presence of representatives from the Netherlands Ministry of Foreign Affairs, Ambassadors of Member States and other Diplomatic Representatives.

This was followed by the signing of the Convention by the United States of America. The example set by the USA is expected to be followed soon. The United States delegation stated the following:

The United States is delighted to sign the new Hague Convention on the International Recovery of Child Support, which we believe represents a major step forward in the development of a global system for enforcement of child support obligations in transnational cases. Every child deserves the support of both the child’s parents. And yet recovering child support when the child and one parent are in one country and the other parent is in another is difficult and often impossible. The legal and practical obstacles often mean that little or no support ever reaches the parent and child. Given the importance of this topic to U.S. families, and because the number of transnational cases will continue to increase, the United States has been an active participant in this negotiation. This new convention is necessary to modernize and improve the existing international system, which is outdated and does not meet the needs of an increasingly global world.

As stated in the Preamble of the new Convention, what is needed is a system which produces results, and is accessible, prompt, efficient, cost-effective, responsive and fair. The Convention is designed to achieve those goals. In particular, the Convention establishes a comprehensive system of cooperation among child support authorities, which we believe will result in more children receiving more support more quickly.

We are pleased to have signed the Convention, and we hope that other States, from every region of the world, will quickly join us. We look forward to working with other States and the Hague Conference on the important work of implementing this Convention in the United States and all around the world.

The official press release concluded that, together with the existing Hague Children’s Conventions, like International Child Abduction (1980), Inter-Country Adoption (1993), and International Child Protection (1996), the new Convention will now form part of the formidable arsenal of international instruments designed by the Hague Conference to give practical effect to the Rights of the Child.

Milkshakes and Hybrid Cars

Today’s NY Times has an interesting story on the perks and benefits many US law firms offer their employees in an attempt to keep them from leaving for other firms. Some of the perks include milkshakes (benevolently served by the happiness committee) and cold cash when you buy a hybrid car. Other firms offer money towards mortgages whereas others give their associates the choice of having a personal concierge to run errands for you. You can read the article here and figure out for yourself what the motives behind the largesse may be.

Tuesday, November 20, 2007

Private International Law in Africa to the Fore reports upon the following article written by Richard Oppong: “Private International Law in Africa: Past, Present and Future” (2007) 55 AJCL 677-719. The abstract can be found here. I had the pleasure to listen to a presentation by Mr Oppong at the Journal of Private International Law Conference held in Birmingham in June. I must say that the development of Private International Law in Africa, and the necessity of a private international law revival for economic development, is a truly fascinating subject. Mr Oppong's article is published at a time when the Hague Conference on Private International Law is doing sterling work to promote the development of the legal discipline in Africa. Amongst several other initiatives, the Hague Conference recently organised a seminar for francophone African Judges, reported here. I hope to find the time to comment upon the importance of these developments more in future. Till then, I would strongly recommend Mr Oppong's article to anyone who has an interest in Private International Law and/or African legal systems.

Is Europe Turning Right?

Following recent elections in Denmark and Switzerland one would perhaps not be deemed far off the mark for thinking so. In Denmark, last week’s election meant that the centre-right government of Anders Fogh Rasmussen remains in power, although with a slightly smaller majority than before. In spite of his party loosing six seats in the Danish parliament, Fogh Rasmussen remains in power thanks to support from a strengthened Danish People’s Party – a populist far right anti-immigration party. In Switzerland, the far right Swiss People’s Party gained a record number of seats in the Swiss federal parliament and strengthened its position as the single biggest party in last month’s election. The Swiss People’s Party’s campaign, among other things, included a proposal prohibiting the building of minarets on mosques and a poster portraying three white sheep standing on the Swiss flag while kicking a black sheep off the flag. The results in Denmark and Switzerland follow general elections in Sweden and France, which, in 2006, saw the right-of-centre Frederik Reinfeldt becoming prime minister in Sweden (a country otherwise known for embodying moderate socialist policies) and, in 2007, Nikolas Sarkozy becoming president of France following a twelve-year reign of Jacques Chirac.

Although some of these results are no doubt more to do with national voters being unhappy with incumbent governments (for a number of reasons), as was the case in Sweden, rather than an actual change of ideological heart, the result in Switzerland, and to a lesser extent Denmark, do give cause for concern. In particular given the, at times, xenophobic, and other times outright racist, tone of the election campaign in Switzerland and the general political debate in Denmark. Notwithstanding the fact that governments come and go, and so do ideological sentiments among the electorate, perhaps comfort can be found in the forthcoming US presidential election where Bush’s and the Republicans’ time appear to be running out.

Monday, November 19, 2007

Real Politicians, Fake Photos

Real Politicians, Fake Photos

I have heard that appearances are deceptive but images can be deceptive too! I just came to know that Photoshop is quite popular with politicians now-a-days to create audience for their large public rally? I have to say it was a revelation for me that politicians can ridicule themselves in such a ludicrous manner. A couple of days ago I received an article written by Murtaza Shibli (Editor, Kashmir Affairs, London about this subject. I was interested in this topic because he mentioned among others Chief Minister of the Indian occupied Jammu and Kashmir; Ghulam Nabi Azad uses photo-editing software to manipulate crowds to show the world community how much public support he enjoys. (Photo attached)

In Kashmir from last 60 years people are claiming self-determination and are victimised by the State terrorism. The surrogate local government in Kashmir has to survive on political spin and therefore unethical methods of staying in power seem necessary, like photo-shopping the audience. These phantom impressions may not however conform to the inept statements they make. Mr Azad made a statement on 6th August 2006 that during his brief time in office only 2395 civilian deaths, 27 custodial killings and 15 disappearances were recorded as against his erstwhile government whose record was worse with 6024 civilian deaths, 67 custodial killings and 60 disappearances (published in Greater Kashmir Daily, 7th August 2006). The real figures are much higher by admission of his opposition colleague PDP President Ms Mufti but even these pointers speak of a clear declaration of guilt that Government of India cannot deny. The Minister may use euphemistic self-praise of reducing atrocities but misses the point that atrocities are committed by them in the first place despite that have a semblance to the pageantry of photographic crowds. Thanks to the media who exposed him recently.

Fozia Nazir Lone
Doctoral Candidate
University of Aberdeen

Tuesday, November 13, 2007

Giving a Good Paper

Tenured Radical has some excellent advice on how to give a good paper presentation that I strongly recommend folks take a look at if they are going to be presenting any time soon. Linda Kerber has more good advice, and the Legal History Blog talks about how to incorporate all this into a legal presentation. Here are some excerpts.

First, Kerber observes:

Dorothy Kenyon, a great feminist and civil rights activist, who spent much of her time speaking in public, once observed that a public talk must “always seem to be improvised, but it must never be improvised.” If you want to hold your audience you must plan ahead, and plan very carefully.

Observe time limits scrupulously. The usual rule of thumb is that a typewritten page [old fashioned courier, 12 point type] holds 250 words. It should take a minimum of 2 minutes to say 250 words out loud. If you have 20 minutes to speak your paper, it can be no longer than 10-12 pages. Do not think you can cheat by fixing the font. Begin with a paper that is 10 pages long...

Generally it is not wise to improvise during the paper presentation. The better you know what you are going to say, the less dependent you will be on your written text, and the more your planned talk will give the impression of informality and improvisation. (See Kenyon Principle). The more you improvise during the formal paper, the greater the dangers of rambling and going off on tangents. Save your improvisatory energy for the question period, when you will need it.
I think that's great advice. In the past I've always tried to sketch the bare outlines and then improvise the rest. In hindsight I don't think that works best. Tenured Radical offers more advice:

Reading really fast to make up for the fact that your paper is too long is not an option. People just stop listening. It is perfectly fine -- and often useful -- if you find that you have no more to cut, to stop in the midst of the paper and gracefully summarize what you have cut, offering to address it in the question period (for which you have just left time.)

Display a sense of humor. Tell a funny story, say something amusing that happened during the research, or relate an odd misunderstanding that will get a laugh. Turn errors into an opportunity for a laugh. If you flub a word, or a sentence, rather than blushing, making a face that says "God, you must think I'm a dork," and rushing to correct yourself; pause, smile, and say -- if the error is some kind of Freudian slip -- "Well, wouldn't that be fun," or "Oh my goodness!" or "I'm sorry, I can't seem to read my own handwriting." But for Goddess's sake, don't encourage people to feel sorry for you.

Interact. This means catching the eye of people in the audience, and speaking directly to them. It means that if you don't go first on the panel, making a gracious connection to the speakers who have preceded you; or picking up on a theme of the keynote. It can mean thanking the people who invited you to campus (a must! and include the departmental secretary who made all the arrangements), or the person who put together the panel in the first place. It can also mean acknowledging people in the audience whose work will be referred to directly or indirectly in your paper, and it means acknowledging the expertise of others in the room when you make a brief reference to something in their line. For example, "I can't get into this point now, but of course this phenomenon has its origins in the Truman administration -- something the students of Professor Y who are in the room can probably speak to in the Q & A."

If there is any general principle that all of this falls into, I would say it is this: giving Good Paper relies on enhancing the comfort of everyone in the room, starting with yourself but not ending there; and conveying your research to people in ways they can understand and respond to. Having a good paper -- one that is intelligent and well-written, and conveys the new things about your work without couching them in a lot of unnecessary jargon or too much context that we are familiar with already -- is important. But presentation is also important, and it is a learned skill. Watch people who do it well and ask yourself why; ask those people questions about the choices they made; and, as the apocryphal New Yorker once advised about how to get Carnegie Hall, practice, practice, practice.

Practice is key, I agree. These are aimed at an American audience, but not a legal one. I'm not so sure if some of those self-deprecating tips would go over too well to an audience in the UK. In my experience giving talks here comports more to the standards of other social sciences (such as history, etc.) than legal academia in the States. Mary Dudziak higlights this kind of difference, in talking about the convention of reading from a prepared text or speaking extemporaneously:

This is often discipline-specific. Historians usually read papers, but that means delivering a written text, not a pedantic reading. A challenge for legal historians is that law schools and law conferences (e.g. AALS & Law and Society Assn.) are cross-disciplinary, so you have to expect that some folks will be less receptive to someone reading a paper. ...

At the transition from the beginning to the body of the talk, experienced speakers often say: "today I'm going to discuss (fill in one to three points from your work that you'll take up in your remarks)." This is helpful to your audience and gives them a roadmap for your talk. Setting up the talk well may allay concerns of non-historians that you are just storytelling with no analysis...

Especially for newer scholars, even if the convention at the school or conference is to speak extemporaneously, it is usually a good idea to have at least the narrative part of your paper written down for you to deliver. The crucial point is that it must be delivered especially well. For this, there's no substitute for practicing it over and over again, out loud, to whomever will listen, even if it is just your cat. When you do this, you'll find that -- often without trying -- you'll end up memorizing much of your paper, which will enable you to speak through it in a more polished way, with plenty of eye contact with your audience.

I usually practice with my dog. If he leaves the room I take it as a sign my delivery needs more work. I don't know if this particularly useful or helpful for folks, I think it will help me. I'm not sure what the state of the current core-skills class is, but this seems to be the kind of thing we should be getting help with. One of my frustrations with that program is it seems to work to get everybody at a minimum level, while not giving good advice on some of these other more advanced and perhaps more sought-after skills.

Monday, November 12, 2007

A New Convention on International Child Support

Approximately 100 States have gathered in the Hague to conclude a new Convention on the international recovery of maintenance obligations. The following are some extracts from the press release that was issued at the beginning of the Diplomatic Session:

"A new Convention…designed to respond to the needs of children and other dependents by providing international procedures which are simple, swift, cost-effective, accessible, and fair."
Unpaid child support – as well as support of other dependent family members – amounts to billions of Euros worldwide. When the person liable for support lives abroad, the difficulties of recovery are often insurmountable. At present, international procedures are typically slow, complicated, costly, and under-utilized. They are simply not serving the needs of the children and other family dependents who, in a mobile world in which multinational families are no longer exceptional, are increasing in number exponentially. The new Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance is designed to respond to the often modest needs of children and other dependents by providing international procedures which are simple, swift, cost-effective, accessible, and fair.

The XXIst Diplomatic Session of the Hague Conference on Private International Law, to negotiate the new Convention on the International Recovery of Child Support and other Forms of Family Maintenance, began with an Opening Ceremony on Monday, 5 November 2007 at the Academy Building of the Peace Palace (The Hague) in the presence of the Dutch Minister of Foreign Affairs, Maxime Verhagen, and the Minister of Justice, Ernst Hirsch Ballin. The Diplomatic Session will conclude on Friday, 23 November 2007 at 11:00 a.m. with a Closing Ceremony and signing of the Final Act in the Academy Building of the Peace Palace in the presence of the Minister of Foreign Affairs, Mr. Maxime Verhagen, and the Diplomatic Representatives. Delegates from more than 100 states as well as non-governmental and intergovernmental organizations are invited to participate.

The Hague Conference is the worldwide intergovernmental organisation for cross-border co-operation in civil and commercial matters. It has 67 Members located on every continent. Furthermore, more than 125 States are Parties to one or more Hague Conventions. Please see the Hague Conference website for more information.

Sunday, November 11, 2007

Lest We Forget

Collective memory is a curious thing. Just weeks after rampant abuses of human rights were screened worldwide from Burma, it seems that the plight of the Burmese people has slipped out of the world's collective conscience. Le Monde reports today on the visit of the UN emissary on human rights to Burma. Perhaps it would be over optimistic to hope that this visit will have any immediate impact or ascertain the facts of the extent of abuse with any degree of certainty. However, it is commendable that the UN is using its good offices to ensure that the world does not forget the human toll of contemporary breaches of international law.

Wednesday, November 07, 2007

State Funerals and Mince Pies

The BBC News website today has a story on the most ludicrous laws in the UK. The story refers to laws supposedly prohibiting dying in the House of Parliament, the right for a pregnant woman to relieve herself anywhere she sees fit, and (my favourite) the prohibition of eating mince pies on Christmas Day. I can see the prohibiting of eating mince pies on Christmas Day causing a few problems in terms of enforcement. The story notes that many of the laws referred to may now be obsolete although they have never been repealed. Although these are just a few examples of strange UK laws, it would be surprising if even stranger ones would not exist elsewhere in the world.

Tuesday, November 06, 2007

Upcoming Presentations

Thursday November 8, at 17.00 in C28

"The Lex Situs Rule: A Poor Tool for Combating the Illicit Antiquities Trade" - Derek Fincham, in anticipation of the upcoming conference Location, Location, Location: the Role of Lex Situs in Modern Claims for the Return of Cultural Objects.

Application of the lex situs rule is nearly unanimous in multi-jurisdictional cases involving movables. It has the dual advantage of simplicity and certainty. If an object has been acquired in good faith, the acquisition will be protected even if the location of the object changes in the future. Courts have been hesitant to bypass the lex situs rule in the past. However the singular nature of art and antiquities compel a more careful analysis on the part of courts. A convincing and compelling policy argument can be made that the general lex situs rule governing title to movable objects across national boundaries should be limited in some situations involving cultural objects. Before we can construct a new legal framework, we must understand how vulnerable cultural objects are under the default private legal remedies.

Tuesday November 13, at 17.00 in C28
"The Enforceability of Electronic Contracts" - Enas Qutieshat

I will give a general view on the structure of my thesis, the purpose for choosing this subject and I will high light some points which I found that could challenge the contract law in its current shape, such as the use of electronic agents and the notion of will in contract formation. In addition, I am willing to give a brief distribution on the formation of electronic contracts and their validity.I hope to get some feedbacks from my colleagues on both the structure and content of my work.