QuickLaw

Open Democracy ran a nice summary of the plenary session of the International Student Festival at Trondheim where Anine Kieruff (lawyer), Flemming Rose (responsible for publishing those famous cartoons that targeted Muslim sensitivities) Johan Galtung (one of the offended) presented their views about the above episode and answered questions from the audience.

I loved the summary of Kieruff’s remarks

With her legal background, she underlined the importance of legal limits of free speech. However, “democracy demands debate”.

What a wonderful mash up — “limits” (BEWARE!) ”demands” (DON’T BEWARE). Do I charge forward or cower in the corner? In the end, (according to the transcript) that would depend on whether my intention is to “harass”.

Nonsense. More precisely, it is nonsense unless we have a precise understanding of what intent and harassment would mean separately and how they would combine in a myriad of factoids BEFORE WE ENGAGE IN A HEATED DEBATE. We do not. By the way, this limitation on our understanding is why I find “insult” crimes to be so absurd.

In my view, the speech debate is one of the grand issues of our time. A significant portion of the globe’s population does not believe in freedom of expression. Those of us who do should be prepared to defend it a tad more vigorously. Put another way, this is not a bargaining table where we can negotiate our way out of controversy. In the end, we will have this freedom or we will not. I am in the ”have” camp. 

FOLLOW - A case in point, in Quickthink today I intentionally harass Jim Holt. He deserves it. But, I do not think for a moment that Holt should have been subjected to a prior or post legal restraint from printing the garbage that he did. On the other hand, nor should I be constrained in expressing my opinion of his outrageous behavior.

Eyal Weitzman writes a provocative article for Open Democracy on how international humanitarian law (IHL) has become just another tool of war between Israel and its adversaries.

Israel long ago rejected the idea that its military responses to terrorist attacks must be “proportional” as the conventional IHL would require. So the Israelis now experiment with other tactics to try to justify the use of overwhelming force and killing civilians.

Hmmm…. have we already accepted this through custom?

Interesting article from NYT on a Romanian court decision to allow former Dictator Ceausescu’s son Valentin to take ownership of his father’s art collection. The author expresses surprise that common folk are not overly interested in the case, even though Ceuasescu used public moneys to acquire the art. Indeed, some people even support Valentin to a certain extent. Here is a quote

Romanians sympathize with Valentin because he worked the system to his advantage.

And of course, this is what everyone does as they try to survive. They work the system. 

This is a great example why the results of  ”rule of law” projects can be so disappointing in the short term. The project goals clash with the local sense of priorities that people feel. So they may know that they need law, but they feel that they need to work the system. But then again, we get this same type of clash in just about every capacity building project. Perhaps this is why so little capacity actually gets built despite big promises, projects and lots of drudge work.

Any remedy? Sure —- We should accept that in reality this type of capacity building is not like bridge building. It is never done. Thus, we need to build long term and high level political coalitions to get a consensus that the capacity is more important than short term gain.

Justice Alito handed down the opinion in  Pleasant Grove v. Summum the other day, and it is a doozie. Daily Cos gives a nice summary of the key arguments along with relevant links.

For those following speech issues, the distinction between the establishment of a public forum and government speech is interesting.

FOLLOW -  Law Blog at WSJ offers a shorter commentary on the decision.

Oh boy. The Pakistani Supreme Court has dismissed the appeal of Nawaz Sharif, and upheld the ban against him holding elected office. The court also disqualified Sharif’s brother Shahbaz from his pot in the provincial assembly in Punjab.

To say that this is a controversial decision would be an understatement. Get ready for protests and ongoing controversy about the independence of the Pakistani Supreme Court.

The Hellenic Foundation for European & Foreign Policy (ELIAMEP) is convening a workshop this October (with support from the European Science Foundation) to explore

‘the mobilization of rights on behalf of less privileged social actors and civil society through legal and judicial processes in pursuit of collective in pursuit of collective and public interest goals in Europe

It is a so called “bottom up” approach to understand how people connect to law to assert their rights. The workshop will use three target groups for case studies (gender, immigrants, and minorities). We are just getting started to think about how to develop a case study from Estonia.

My initial thinking is to look into several factors that might affect how actively persons assert rights. These are

1. Comparing perceptions of the severity and nature of the problems at hand (by the actors, community, and legal community)

2. Assessing access by actors to competent advice about rights

3. Assessing capacity to act (either through facilitation,  litigation or intervening in rule making)

4. Assessing capacity of the legal system to adapt to the assertion of rights (and alternatives)

5. Assessing the learning paths of the system, the target group, and society

We are interested in innovative methods to look at each of the above. I would welcome thoughts from anyone who is travelling down similar paths to exchange ideas and approaches.

FOLLOW - This quote is from Balkinization on February 25th, reviewing Prof. Silverstein’s book “Law’s Allure: How Law Shapes, Constrains, Saves and Kills Politics”

Conventional legal wisdom proclaims law is a good tool for progressive policies. Gerry Rosenberg insists politics is the only fora for social change, while Michael McCann insists that legal solos have merits even when they do not directly produce desired reforms.

An interesting reminder that there is a lot of grumbling about the role of law in producing reform.

Ok, we all know that the major law firms are overstaffed and overpriced. So what is their survival strategy?`I saw on BLT that Weil Gotshal has brought in former Bush Administration White House Deputy Counsel Bill Burck as a partner in its D.C. office — more specifically its “Investigations and Criminal Defense Practice” .

Errrr…..not to be too cynical here, but is this a red flag or what? But I would argue that even if Mr. Burck throws some neat defence work WG’s way, this would be still just low hanging fruit, not really a survivial strategy for the firm. So what is their surivial strategy?

I received a note today that the Estonian judicial training group is preparing an update of its strategy. The last one (that I helped to prepare) was for the 2005 to 2010 period. This one will be for 2011 to 2015.

Two questions. First, are there best practices for how to put together (procedure)? Second, are there any best practices for how to write it (structure)?

Interesting questions I think. But I guess there are no “off the shelf” answers.

Greg Berman at the Center for Court Innovation has an interesting post on his blog the other day — he is working on a book about “failure”  I had to chuckle a bit because his thinking tracks my own.

Years ago, we struggled here in Estonia to figure out how to develop procedures to assess judicial training needs. One of the tools we settled on was to track and analyze reversals. BTW, our work was inspired by Six Sigma thinking that efficiency requires setting standards for tolerance of deviations from set criteria.

We split the reversals into two categories (1) reversal due to challenging problems, and (2) reversals due to mistakes that should have been avoided. In the first year, the analysis gave us some shocking results about mistakes that should have been avoided.

After doing this, I began to think about using similar tools to test the products of other legal institutions (law drafting, private bar, prosecution, legal education). The key to doing it right is to ask the right questions about what stakeholders need from the institution. A normative question indeed.

NYT gives a first glimpse of the likely Obama approach to promoting democracy. Obama will stop the “cheerleading” and engage other countries in a more cooperative manner. Promoting democracy has become “radioactive”.

My reaction. Good move. The cheerleading is counterproductive. But the engagement should include beefing up US assessments of legal institutional capacity. Perhaps a public rating system. Something that keeps the dialogue going on providing remedies for those not in circles of power.

Would this be radioactive too?