Some of you have recently bought my books on bar review: at the very last minute for July. Feel free to write me an email with the promo code in the book to ask me anything for free. Offer open till 16 July.
Good luck on the bar!
[email protected]
Pre-Law Advice
In 2 weeks many of you will face the bar exam: if you bought my books and prepared for it as I advise you should pass.
If instead you are merely considering law school may I dissuade you?
Law school is expensive and probably not worth it. I wound up falling deeply in love with law (because I was always in love with justice) but was bitterly disappointed to have an exact map of injustice in this world.
Honestly if you are unsure whether to go to law school: don’t. There is currently an over-supply of law teachers and law students. Defaulting into law because “good with words bad with math and doesn’t like blood” is a really bad way to go.
I am a polyglot, with scores of legal publications: I do love it but it was an acquired taste. Anything worth doing is worth over-doing.
Most law students and the more successful ones are uncreative, but disciplined and organized, and are terribly conformist. There are exceptions but they are exceptional.
Bar Exam in July! WILL YOU PASS?
A theoretical background is surely helpful for a global vision of law, but that’s not what the bar exam tests. The MBE tests black letter law. Drilled repeatedly all the basics. Learn to love the topics you do worst in so you will study them and pass. It is wrong for any student to think “I will ace these topics and it doesn’t matter that I suck on those other topics”. You have no points to lose!
The MBE tests a lot of law but it’s all basic. The toughest MBE questions resolve around picking the least incorrect answer of four wrong answers. The next toughest questions resolve around picking the more correct answer of two correct answers.
The essay section is relatively easier and simply requires understanding IRAC and good legal writing. I expect students pass or fail based on their MBE and that the essay questions merely confirm that. A weak MBE and a weak essay section is a fail. Strong MBE and weak essays are still a pass, in my opinion.
Tricky topics are: privileges and immunities clause (always gets one or two questions is about never the right choice), dominant/servient easements and subdivisions (does that covenant run with the land?), political question doctrine, hearsay. These topics especially must be drilled repeatedly. Another somewhat tricky topic is the contract for sales of goods with a service component: does the UCC govern the entire contract, only part of it, or not at all?
The bar is passed with a heuristic namely: making your best guess quickly and moving on, and doing so by process of elimination. Most students will be able to eliminate one or two answers as clearly wrong. Passing students pick the answer they think likeliest to be correct among the remaining two, or, worst case: the least incorrect of four wrong answers (these may be experimental questions).. A correct answer isn’t necessarily the most correct answer! Tricky and in my opinion two correct answers or no correct answer is a bad selector, but I can point out released bar questions which do exactly that, test either for the more correct of two correct answers or the least incorrect of four incorrect answers.
I think criminal law and torts are actually the easiest MBE sections, but causation in tort is obviously the trickiest part of torts. As to crimes they don’t test the tricky parts (complicity; due to an absence of common law doctrinal unity and codification thereafter). NCBEx testing of attempt is, at least in the released questions, not particularly difficult, though students may find attempt’s logic confusing without repeated exposure thereto.
The MBE questions are the “cake”, the “meat and potatos” and the essays as “icing”, the “desert”. I don’t think brilliant essay answers and terrible MBE questions results in a pass, at least not in NY.
The NY bar does have some issues (namely divorce, CPLR 78) which if incorrectly answered will likely reflect a fail. I haven’t studied the California bar enough to identify which questions there will result in the student failing.
“Haley’s Comet”: Free supplement to The Devil’s Diplomatic Dictionary
Haley’s Comet:
An object about to be fired up, blazing briefly yet brightly across the sky. Haley’s fiery flame is rumored to be fueled by Syrian corpses, found beneath the bus they were thrown under, begging the questions: Who threw them under the bus, and why? Thought to have been a divine sign of hope and victory, like a silver lining in a thundering rain cloud, Haley’s Comet, whatever the actual status of this heavenly body, is clearly decoupled from the Trump Train (q.v.). Whether Haley’s Comet is a recurring event or a one off wonder is yet to be seen: check back in a few years …
Trump Train:
A series of short yellow busses, coupled with each other, human centipede style, under which various opponents of an orange fire ball are thrown. Fueled by anti-intellectual anti-matter (I don’t think so it don’t matter), flights of fancy, and manure. See also: “Forty Acres and a Mule”.
Sources:
https://www.cnn.com/2018/04/15/politics/nikki-haley-troops-syria/index.html
Mattis jokes to Bolton: ‘I heard you’re actually the devil incarnate’ (Free Supplement to The Devil’s Diplomatic Dictionary)
Free Supplement to The Devil’s Diplomatic Dictionary
“The Devil Incarnate”
Rumoured to be John Bolton’s infernal call sign. In fact, Bolton is but an emissary. “Better the devil you know”.
Source: Mattis jokes to Bolton: ‘I heard you’re actually the devil incarnate’ – CNNPolitics
Mad Mattis:
An Estonian ecoterrorist. Pseudonymized. Russians murdered his parents.
“Tears in my eyes”.
Interdimensional diplomacy has its price: the price is talking in code. “Tears in my eyes” is code. Code for: “If you fuck with me I will kill you all.”
Chaos:
1) The arch enemy of Maxwell Smart, Agent 99, the Chief, and Control.
2) Mattis. AKA “Old Ironsides”. AKA “Lord protector of the United Colonies.” AKA “John Company’s man in Washington.” (q.v.)
“Higher Stakes”
In the war of all souls against all damned we play for higher stakes than life or limb. We play for souls, for “Socrates is a man”. See also: “Ob arm, ob Reich, im Tode Gleich.”
Poutrage! (free supplement to The Devil’s Diplomatic Dictionary)
Poutrage: Poutrage is the whiny feeling of faux righteousness. Generally elicited as a result of base hypocrisy. Example: Elizabeth Warren’s claims against Donald Trump reek of poutrage since it appears he is right and she in fact has no native ancestry.
Source: The Devil’s Diplomatic Dictionary: Ann Omynous: 9781542571890: Amazon.com: Books
The Devil’s Diplomatic Dictionary: Free Supplement: John Bolt On
The T Wrecks, unable to defend itself whilst wrecking U.S. foreign policy, has failed the Darwinian test of natural selection.
T Wrecks was rendered extinct by Boltanius Johannicus, to which we now turn our attention.
John Boltin’: 1) When one must go to the toilet immediately, whether to vomit or defecate, because one has eaten bad Mexican takeout. 2) When one must immediately rush to wage a blitzkrieg. Example: “Donald Trump is john boltin’ to North Korea for a fake summit.”
John Bolt On: Has many meanings, These follow.
- John, Bolt On: A portable toilet, in which a suspect is to be locked and interrogated, possibly using toilet water. See also: Chinese water torture; water board in.
- John Bolt, On: When one is locked inside of a toilet which is overflowing due to being jammed. “The john bolt is on. Help! Help.” Old Nick (q.v.) just loves their screams, devil take the hindmost. (qq.v.)
Source: The Devil’s Diplomatic Dictionary: Ann Omynous: 9781542571890: Amazon.com: Books
How NOT to Write about Law: Legal Writing for Law School & Law Reviews
A thesis like this is very bad:
“this issue has it’s good points it has its bad points but in the end maybe it’s more this way than that”
What I (and your reader) are looking for is insightful powerful compelling ideas or at least concrete proposals, not unicorns and bubbles blahblah. For example, parsing a specific law, proposing a specific law, or analyzing a particular court case.
How to Write about Law: Legal Writing for Law School & Law Reviews – Free Addendum
A student recently asked me an interesting question about quotations, which I did not address in How to Write About Law.
What about quotations which themselves contain quotes?
Here is an example by my hero John Kennedy.
“…we must think and act not only for the moment but for our time. I am reminded of the story of the great French Marshal Lyautey, who once asked his gardener to plant a tree. The gardener objected that the tree was slow-growing and would not reach maturity for a hundred years. The Marshal replied, ‘In that case, there is no time to lose, plant it this afternoon.'” -John Kennedy
“ indicates the person speaking (Kennedy) and
‘ indicates the person quoted (the Marshall) by the speaker who you are quoting (Kennedy).
Kennedy said: “a hundred years. The Marshall replied, ‘blah'”
This type of quotation can be referred to as a nested quote.
We nest quotes thusly:
” ‘ ‘ “
Nesting of quotations is similar to nesting of braces, brackets, and parentheses in mathematics to indicate the order of operations.
Related points:
Polyglot Quotation Styles
English quotation marks are “for example like this”, whereas
<<french quotations are thus>> and
,,German quotations are this way”.
When quoting foreign text in your English language works I recommend including a translation in the footnote of the original text. I don’t require that of my students, but your editors will appreciate it. I also would use the foreign quotation convention, not the US convention. For examples of retention of foreign literary conventions in English: 1) we capitalize German nouns in English, 2) we retain foreign spellings of loan-words such as crepe in English, though we may drop diacritical marks as I have here or retain them at the author’s discretion. It is better style to retain diacritical marks such as accents, circumflex, etc. Not all English language authors retain diacritical marks on loan-words to English because old typewriters did not have unicode symbols.
I presume nested quotations in French and German likely also use a single quote mark to indicate a quotation of someone who quotes another person. I could be wrong about that, so … don’t quote me on that. 🙂
It is bad style to use emoticons in scientific writing. I do so to raise that point so it is not left unstated.
Non-Literal Quotation Marks
Quotation marks are used to indicate literal speech, but also to indicate concepts and terms such as “nested quotes”. I think it is better to avoid using quotation marks to indicate concepts or terms: Either the quoted concept is strong enough to stand on its own, in which case it needs no attention brought to it by a quotation mark, or it isn’t. No amount of bolstering or posturing strengthens a weak or unpersuasive idea. Furthermore, this (mis)use of the quotation mark makes your reader anticipate something which never occurs: the words of someone other than you, the author. The result? A confused and frustrated reader, left wondering whether your quoted concept is someone else’s words you used but forgot to cite.
Citus interruptus, to coin a ribald witty phrase.
Quoted concepts also weaken your writing by making it look sarcastic or affected. No one likes a faker…
Free supplement! Devil’s Diplomatic Dictionary
From “The Devil’s Diplomatic Dictionary”
Pocahontas: A white person, who thinks themselves to be an Indian, although they are not enrolled in any nation band or tribe recognized by the BIA, nor have any demonstrable Indian blood or tribal adoption. Supposedly a Harvard law school has a quota of Pocahontas’s though whether this quota, if it even exists, is a glass ceiling or glass floor is open for debate.
Domestic dependent nation; the American term for what in international law is called a “vassal state”. Vassal states retain their international legal personality, however their foreign policy competences are exclusively administered by their suzerain. As the Six Nations Confederacy retains relations both to the government of Canada and the United States it is not a vassal state.
Navajo Code Talker: An Indian, usually but not necessarily a Navajo, who talks about “flying turkeys” who are all set for a “crash landing” and will end up in a “birdcage”; possibly in English, if they are feeling so inclined. See also: Counting Coups. See also: hero.
Counting Coups: The Indian practice, among some of the native nations, of quietly putting a notch in their rifle for all the people they chose not to kill, but could have and maybe even should have.
Indian: A term for some to be indignant about. Any of the various native nations on turtle island (q.v.) or any member thereof whether by blood or adoption. Possibly a corruption of the term Indigenous? Etymologically usually attributed to Columbus’s navigation error. See also: redskin/red’s kin.
Redskin: A paleface suffering from a bad bout of nuclear radiation.
Red’s kin: Polite term for a half-breed, quarter-breed, octaroon, or any other mixed blood person; not to be confused with “red kin”, which is a rude term for a shabby commie relative.
Assimilation: See “slow-motion genocide”; “boiling a frog”; “raspberry reich”.
Indian Giver: A white person, who claims that a fraudulent treaty divests of so-called “Indian title”; see also — thief.
T. Rex:Supplement from “The Devil’s Diplomatic Dictionary”
T. Rex:
A carnivorous dinosaur, thus a rare and an endangered species. Preferred hunting grounds of the T. Rex are dinosaur graveyards, where it finds plenty of fuel for it’s voracious appetite. T. Rex, though toothsome, has but short stubby arms, and is in that sense handicapped and unable to fight, which explains its tendency to scavenge dinosaur carrion.
Wrecks, Till Her Son…
An insinuation that a certain secretary of state, who shall remain nameless, was tasked with destroying U.S. foreign policy from within, and that said person shall remain in office until such time as the wreckage results in large numbers of U.S. soldiers coming home to their military funeral.
https://www.amazon.com/Devils-Diplomatic-Dictionary-Ann-Omynous/dp/1542571898/ref=asap_bc?ie=UTF8
Counter-Intuition: From “How to Write about Law” (Forthcoming)
Science is the formation and verification of hypotheses.
A counter-intuitive hypothesis is always interesting but is unlikely. The counter-intuitive hypothesis will probably attract interest, because it looks unique, new, shiny! But who wants to attract a reputation for being wrong? One must be most careful with counter-intuitive ideas, more critical than usual. How likely is it that everyone else is wrong, or that you have discovered something no one else has? Not very.
Whenever we have a counter-intuitive idea we should ask where we got that idea, why we believe that idea may be the case. It’s not like everyone else on earth is perfectly honest all the time.
Of course, State actors meet with the problem of “unintended consequences” all the time; that is the product of not thinking through ideas to their logical consequences, or failing to foresee the reactions of others to our own actions. Others’ actions are never entirely foreseeable, and so to some extent unintended consequences are inevitable. It’s not that others are stupid or thoughtless: it’s simply that in war “the enemy gets a vote” – and they vote with bullets.
So, the penalty for being wrong about these things is severe.
Metamorphosis (from “Terrible Tales and Worse Verse”)
Once upon a time there was a loud loud lesbian.
She was a nervous nelly!
She was simply so scared!
See, some simple minded people don’t like lesbians.
Even the good ones!
Even the kind ones!
Even the nice ones!
Not nice!
So: Nervous nelly.
Why are they that way? Why don’t they like the good ones, or the kind ones, or even the nice ones?
That’s because some people are simple.
So the loud lesbian learned to love herself more and more and the more she loved herself the more other people loved her.
Which is why she was a lesbian in the first place. She loved herself, and she was a woman.
But the more the other people loved her, the sweeter her voice grew.
And the sweeter her voice grew the less nervous she felt.
And the calmer she felt the more confident she became.
So the loud loud lesbian turned into a sweet sonorous songbird!
It took a lot of time but was worth it.
The end 🙂
Moral: Be loud. Be brave. Be loving. Become even better!
Nachricht: Devil’s Diplomatic Dictionary
“In deep cold cavernous spaces
where shadows pair with shades
where old books dream the dreams
of times when they were trees
where coal doth bear the diamond
one knows not light nor day
there ’tis where every spirit reigns
who one would call a shadow-king”
-Colophonius Regenschein
Ask me about the books [email protected]
Dear reader,
Thank you for reading. Law is complex. Feel free to ask me about my books, just email me at [email protected] I will do my best to answer as quickly as I can because your thoughts and questions mean a lot to me. I give away a lot of free legal analysis and resources at http://mindworks.altervista.org
This is a gratuitous offer and does not imply any contractual rights or duties.
Fiat Justitia! 🙂
Eric
Capitalism and Patriarchy: Responses?
I Think the best long-term strategy is to ignore capitalist patriarchy and just carve out a personal alternative. If I focus all the time on capitalism and patriarchy I will be angry and sad. If I am angry and sad I cannot live effectively or be an effective activist. I try to take sad and turn it into anger, and take anger and turn it into energy.
I want to write more on the topic because social change does happen. Apartheid ended. Gay everything is becoming normalized. However, patriarchy and capitalism endure. Normalization is partly a process of coopting radical dissent, partly a process of rationalization of capitalist production, of making the system (capitalist patriarchy) more efficient.
Capitalism endures because most people are greedy and selfish and are even willing to kill for money: i speak here of the majority. They may well be stupid, but they are absolutely selfish, greedy, wiling even to kill for money.
Outwit them.
Patriarchy endures because people are lazy and beaten down and coopted into it. They are beaten down because of capitalism, they are lazy because capitalism benefits them, and then even radicals get coopted into a nice car a nice house
Capitalism provides goodies and is better than feudalism or agrarian slavery.
I don’t think Leninism or Maoism are the way to go. Conspiratorial vanguard elites tend to keep power to themselves and install a permanent dictatorship, which inevitably becomes corrupted and collapses. Maoism is a bit better than Leninism but it should not escape you that Mao was as bad at economics as he was good at generalship.
Marx, too, is no angel. His advocacy of “free love” was simply the normalization of early capitalist decadence.
Marx believed that the scientific progress capitalism unleashed would inevitably result in a world awash in so much wealth as to make property and the state irrelevant: that the state would inevitably wither, but that it’s process of withering would be marked out by class conflict.
All that was 175 years ago. In other words Marx is probably not so relevant or accurate as we would like. He writes badly.
Probably Foucault is the best strategist we can look at but even he would admit he is fascist influenced.
I think the best answer is to carve out one’s own alternative, point it out to society, and hope society catches up.
But when it does, it will still be rationalization and cooptation. Ugh.
I don’t mean ignore it and hope it goes away: I mean, ignore it, live a good life, and kick it in the balls whenever possible at no risk to yourself, or at the level of risk you are personally willing to tolerate.
There is btw still beauty in life. That too is a radical alternative strategy, to simply fall in love with beauty, and regard the rest as error and illusion.
You are all beautiful.
Chinese Learning Resources
THE CHINA FILE
Some of you may know I am learning Mandarin Chinese. Since some of you may also be learning that language I wish to provide you a list of great Mandarin teachers and resources. I order these from “easiest” i.e. beginner to hardest. I then provide a detailed review: they are all excellent in different ways. First, a disclaimer: I have not been paid by any of these teachers nor have I been given any discounts on their works. Links to all these Mandarin teachers and other teachers who I enjoy follow this post.
Learn Chinese With Emma
Yang Yang / YoYo Chinese
Chinese Pod
New Concept Mandarin
XM Mandarin
Angel Huang
Mandarin Corner
Xue Bai
Learn Chinese With Emma is really oriented toward young children, but is great. Emma teaches colors, numbers, and is really a great teacher, especially for the beginner or children.
Yang Yang / YoYo Chinese is a “celebrity teacher”. Most of her best work is Mandarin to English, i.e. ESL. She does do great CSL work. Much of her work for CSL is at HSK1 or HSK2. Some of it is more advanced. Her works are “free samples” for her subscription site, like most of the reviewed works here. Yang Yang is really interesting to study to learn teaching techniques. She really combines the best of Chinese and American teaching methodology and is a must see if you are a teacher, especially if you do ESL or CSL. She is also a great dancer and good singer.
Chinese Pod: Chinese pod is really accessible. The main teacher there is Fiona Tan, who is I guess Scottish+Chinese=Awesome. Some of her videos are with her sister Iona. She also teaches with Constance. I guess she is based in Taiwan: her more recent works use simplified and traditional characters. Her earlier works used only traditional characters. If you are new to Chinese do not worry about simplified versus traditional: they are so similar that you will usually not notice the difference. Much of Chinese pod’s works are about HSK2 or HSK3. Some, exceptionally, are about HSK4.
Emma, Yang Yang, and Fiona are all fun to watch and effective teachers. Not “scholarly” but that’s not really possible at HSK1/HSK2 anyway. If you are learning Chinese for a business trip use them and also New Concept Mandarin to get your polite self-introductions, food-ordering, and basic directions learned.
Chelsea Bedroom Chinese: Chelsea is silly and fun and really dramatic. Not scholarly but somewhat artistice. Her tellings of Chinese mythology are amazing! So is her acting style. Use Chelsea’s materials for a fun break from serious studying. She does teach grammar and vocabulary and is a great teacher. HSK2/HSK3.
New Concept Mandarin: NCM uses “flipped learning”. Their online works are good lessons at HSK1-HSK3 levels. To really benefit from them you should take their courses. Flipped learning is the idea that the student drives the teaching experience and that the teacher guides and incites their curiousity. In Flipped Learning the student does most of their studying outside of the classroom, the classroom experience is meant to confirm and if necessary correct the student’s learning. NCM explains this methodology in detail on one of their videos. Again, a must-see for teachers, especially for language teachers. It is a really interesting method of teaching and if you are near them you should sign up for their courses. They probably teach by skype too.
XM Mandarin: XM Mandarin is around HSK3-HSK4. Xiao Min has a great voice (so do all the other teachers here) and her materials are really good. What I really love about XM is they use songs to teach Mandarin, with extensive lyrics and explanations so you really understand what the song is singing. Xiao Min is really disciplined and puts a lot of thoughtful effort into teaching. She is not “shiny bells and whistles” but is dedicated and effective as a teacher. This is where it starts to get “scholarly” and even artistic! She’s amazing.
Angel Huang: she has a really great teaching name, and is kinda like an angel in that she does some really effective teaching. She offers 150 videos teaching the 1500 most common character/words in Chinese. It takes discipline because it is only in Chinese, with English subtitles but if you watch her over and over again (and like all the other people here she’s pretty) you WILL learn those characters. HSK3/HSK4
Xue Bai: Here it is really best for HSK 4 and up. Lots of reading, fairly scholarly, a great resource. HSK4 and up!
Mandarin Corner
This one is awesome MC teaches HSK1-HSK5 and if you are preparing to take the HSK she is the best to use for learning and review. She defines the word, gives the English translation, and then uses it in a Chinese sentence. Twice. Very disciplined. Very pretty. Very effective.
All these teachers offer subscription only services. You should try their works and then if you like them by all means subscribe. They are all wonderful teachers and must be great people IRL. You can probably do one-on-one skype learning with them or their colleagues. I should not be biased but these are all really beautiful people in every way.
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Mandarin Corner 1 -
Angel Huang -
Xiao Min -
Learn Chinese with ChineseClass101.com 4 -
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Chels teaches Chinese -
xcnChinese -
FluentU Chinese -
Learn Chinese Now -
choumeizai 1 -
Yangyang Cheng -
New Concept Mandarin -
mandarinnetwork -
WORDPIE -
podcastyou00 -
Xue Bai -
Fiona Tian -
Learn Chinese With Julia -
ljclearning 1 -
Yi Zhao -
learnchinesewithemma -
Mandarin Learner -
Hanbridge Mandarin -
chinesewithgloria
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Chinese Sentence Structure – Chinese Grammar Simplified 101 – YouTube
This video is not particularly well made, however it does illustrate an important point of Chinese grammar and also gives some indication why Chomsky argued for generative grammar, yet at the same moment refutes generative grammar.
One generally observes in all languages the grammar pattern:
Subject-Verb-Object for declarative sentences
(Subject)-Verb-(Object) for imperative sentences
Verb-Subject-Object for interrogative sentences.
However, these patterns, though they do occur generally are not universally observed. Passive voice for example allows an inversion of object-verb-subject. Passive voice appears to exist in all observed languages which I know. Heavily inflected languages are the least bound by SVO convention and inflections enable any of the six possibilities of SVO SOV VSO VOS OSV OVS to be formed.
Even if SVO were universal – and it is not – it is riddled with exceptions and qualifications. Do indirect/dative objects appear before or after direct/accusative/partitive objects? Is the language inflected or not? What about time and manner, do they appear before or after the object? Time and manner do appear to generally occur in that order, but that order may be varied for emphasis or poetic effect.
There are so many obvious variations among languages that the idea of a universal generative grammar, though tempting due to the genetic bottlenecks in human history, is empirically false. The take home message of this video is that Chinese grammar, unlike English, tends to be organized as
STPVO
Subject-Time-Place-Verb-Object.
How to Answer Yes and No in Mandarin Chinese？ – YouTube
I saw this video
and it reminded me of another empirical disproof of Chomsky’s theory of generative grammar. One might intuitively think that “yes” and “no” are two very fundamental aspects of any language. Indeed, when learning or teaching languages I advise your first two words should be “yes” and “no”. Ok seems to have become an international word since the 1990s, which proves the tendency of dialects and languages to merge back to each other with improved communication. While Chomsky and his followers might argue that the linguistic convergence is due to the universal nature of generative grammar I disagree. Languages likely did emerge from one common tongue as seen in Hebrew and Hindu myths, and likely in other myths – mythology is oral prehistory. However, language arose from one common tongue due to a genetic bottleneck.
We can see all this from the fact that even a basic element such as “yes” or “no” is not common in languages today. For example, in French we have “si” and “oui” for yes. This isn’t merely langue d’oc, i.e. southern versus northern French. Rather, “si” to me reflects an affirmation of what the questioner has asked, not an affirmation that one is in fact certain; that is, “si” is more uncertain than “oui”. “Are you alive?” “Si.” “Do you believe in the one true God?” “Oui”. In Chinese we most usually repeat the verb which was used in the question:
“Do you know him?”
“Know him.”
ni3 ta1 ren4 shi ma? 你他认识吗?
认识.
One can however use bu4 不 as a negation and shi4 de 是 的 as an existential affirmation.
We can easily observe many grammatical divergences which resulted from the migrations and isolations of human tribes from each other since -150,000 years ago. These disprove the theory of generative grammar since they are sufficiently divergent as to be unable to be expressed in a single recursive grammar. Since these divergences appear to have arisen despite the one-time universal language they attest to the fact that language is a social construct, not a neurological inevitability — and thus by extension is not limited to the human species, and only the human species. Chomsky’s theory of generative grammar is simply wrong and empirically refutable.
Empirical Evidence in Support of Chomsky’s Theory of Generative Grammar?
Chomsky argues that there is a meta-grammar, a grammar-of-all-grammars, inherent to human language, which he calls “generative grammar”. His idea of a recursive function which describes all human language is theoretically intriguing, but empirically fairly readily falsified. In earlier posts I pointed to features of gramma unique to some languages, yet not found in others. Examples include, but are not limited to: declension of nouns, conjugation of verbs, presence, absence, and use of articles, prepositions or post-positions, nouns-as-verbs, compound-nouns, tonality, gender or gender neutrality, particles. Some of these features are not part of the English language, which is why you may never have heard of or considered them. Note that Chomsky appears only to speak English, French, and Hebrew, and that English is a bastard language; basically Germanic nouns for common items, a largely simplified Germanic grammar, with Latin terms for any advanced concepts. This is to say he lacks the empirical foundation to carry his argument.
Although I reject his generative grammar hypothesis I wish in this post to describe some language features which appear to me to be common to all languages I have studied, which is very few in comparison to the roughly 35,000 languages on Earth. However, my languages are representative of the three main trunks of Indo-European (Germanic, Romantic, Slavic) as well as two non IE langugages – Estonian and Mandarin.
One structure which appears fairly consistent accross languages is the use of the subject-verb-object SVO format for declarative and imperative sentences. In contrast, question sentences (interrogatives) only sometimes use the format VSO. Chinese for example relies on question particles such as “ma” and “ne” which allows the sentence to retain SVO form. Furthermore even within SVO there are wide variants on the word order: do indirect objects precede or follow direct objects? What about temporal elements and negation? Temporal elements, negation, and direct/indirect object placement vary between languges.
This post however caught my eye because it does confirm something intuitively common to me based on my language knowledge so far: the time-manner-place-object structure. In Mandarin sentences generally can be fit into this form:
Subject-TIME-MANNER-PLACE-negation-auxiliary-verb-complement-OBJECT
This is still very far from Chomsky’s idea that there be a recursive grammar which describes all human grammar and that this generative grammar is inherent to the human, and only the human. However, SVO is consistent with my positions:
1) The human species suffered a near-extinction event some 150,000 years ago.
2) This near-extinction events resulted in a genetic bottleneck.
3) This genetic bottleneck was sufficiently narrow that humans at one point in history had only one language: proto-world.
4) Proto-world in turn evolved into Nostratic, and then Indo-European
These observations are consistent with genetics, mythology (e.g. tower of Babel), and the observed empirical facts of human language. They better explain the few common elements we can occasionally observe among human languages than Chomsky’s unproven hypothesis. When a hypothesis is empirically falsified we reject it, particularly when a more accurate hypothesis better fits the facts.
I point out the SVO structure partly in fairness to Chomsky, though even with SVO we quickly observe variances to contain nuance. Human language tends to use SVO for declarative sentences but readily admits exceptions. E.g.
“The ball I threw is now on the floor” OSVO
“That is the dog I walked”. OVS
In all I regard Chomsky’s generative grammar thesis as interesting more for what it says about scientific production than on its own terms: as a thesis it is untenable due to empirical falsification. As an example of the limits and possibilities of the scientific method it interesting.
Chinese-English Law Dictionaries Free and Online
I see that there appears to be an inner-party struggle within the Chinese Communist Party. I would like to see less corruption, more rule of law because that is in the interest of all people.
Hopefully understanding that will make the U.S. Navy feel better about China’s refusal to accept a courtesy call from the USS Stennis. It is likelier an expression of uncertainty within the Chinese Communist Party, rather than an extension of known friction between the U.S. and China regarding Chinese insular claims, a topic I posted on earlier today.
Meanwhile, I am learning Chinese. This is a placeholder link-list.
https://www.statecourts.gov.sg/TBD/Documents/Glossary_EnglishChinese.pdf
http://dictionary.reverso.net/english-chinese/law
http://english.sipo.gov.cn/laws/lawsregulations/201101/t20110119_566244.html
http://www.legislation.gov.hk/eng/glossary/homeglos.htm
http://www.legalglossary.ca/dictionary/
http://www.chinalawblog.com/2012/10/chinese-english-translation-of-fifty-common-legal-words.html
www.nyc.gov/html/oath/downloads/pdf/TranslatingJusticeChinese.pdf
https://www.translegal.com/legal-english-dictionary
https://www.statecourts.gov.sg/TBD/Documents/Glossary_EnglishChinese.pdf
Mom is a horse?!? Tones and Chomsky (吗)
Possible ways to refute the Nostratic hypothesis and Chomsky’s generative grammar hypothesis would be to investigate those African languages which are composed of clicks or to look at tonal languages such as Chinese. Perhaps African click languages use a different grammar, or vary significantly from Eurasian languages? In contrast, though one may claim that Chinese is sung, rather than spoken, and thus somehow fundamentally different from European languages tones also exist in European languages. So looking to refute the Nostratic hypothesis and/or Chomsky’s generative grammar theory is unlikely to result from an investigation of the use of tones in some languages like Chinese. African click languages are a better group to research to see if Nostratic and/or generative grammar hold true. Recall my position is that the nostratic hypothesis is true, which is consistent with Chomsky’s generative grammar hypothesis. However, unlike Chomsky, I postulate that languages are similar not due to inherent brain structures but due to a genetic bottleneck about 100,000 years ago.
Tones in English may be seen with the following examples. When a question is posed in English we use the rising tone. In contrast, when a command is issued in English we ordinarily use the falling tone. That corresponds in some respects to Chinese, where each tone carries with it a connotation; the first tone is the hopeful, the desired, the second tone is questioning, the third tone tentative, and the fourth tone indicative or even imperative.That is consistent with the nostratic hypothesis but also with generative grammar.
Yet, strictly speaking, though tone in spoken Chinese does appear to carry signification, Chinese grammar does not use tone to indicate questions. Rather, Chinese in principle uses particles such as “ma” (吗) at the end of the sentence to indicate question. More importantly, unlike European languages, Chinese syntax does not appear to vary word order to indicate a question. In Indo-European languages questions are usually indicated with Verb-Subject-Object (VSO). While Subject-Verb-Object (SVO) appears to be the usual a universal syntactic form for a declaratory sentence there are exceptions in languages which use case to indicate object. I do think SVO is the best argument for generative grammar, but even there we see exceptions in European languages, where SVO is varied for poetic effect or other stylistic reasons. Furthermore, although European languages seem to always use VSO to indicate questions, that is not the case of Chinese, tending to refute generative grammar, but not refuting my Nostratic hypothesis because I aruge that human language evolves. Nostratic is our original language not because we are biologically predestined to one grammar, but rather due to the near-extinction of humans.
Chomsky: Refuted by Feral Children
Another refutation of Chomsky’s generative grammar theory is Chomsky’s understanding of children’s acquisition of language. This is not as bold a claim as my own arguments that Chomsky is wrong because of serious divergences among human grammars, even as I confirm the nostratic hypothesis. The unity of human language is due to a genetic bottleneck, not a genetic basis of language.
Chomsky’s genetic argument for grammar as inherent and universal in human language can be refuted in a less ambitious way by looking at acquisition of language by human children. Chomsky argues that no matter the amount of training, a kitten will not acquire human language, whereas humans do acquire language. And that is generally true, children are noted for their capacity to mimic. Yet, that is not universally true.
Feral children are those very rare children who are not raised by human parents. Often they are said to be raised by animals. They may or may not in fact be so raised. All we really know about the rearing of feral human children is that they did not die of starvation or get eaten. Well, almost all.
A unique thing about feral human children is that they do not acquire language. Even when inserted into society, even when extensive resources are devoted to training such teenaged or adult children — they simply do not acquire human language,(1) being limited to few or even no words relying on grunts and body language, as most animals do.
On the one hand Chomsky could argue this shows the fact that language is biologically conditioned, since most feral children are reinserted into human society after their sixth years of age – mostly as pre-teens but sometimes as teenagers or even as adults. In all cases, they do not acquire language, not in the sense you or I use language. Chomsky would argue that this is evidence that language is biologically conditioned. That does not however correspond to the fact that adults can be as adept or even more adept at language acquisition than children, and that adults face entirely different social circumstances in their acquisition of new language.
However, if human language were an inherent inevitable biological quality of humans then feral children would develop language on their own in the wild. They do not. The reason is because language is a social construct, not a biological inevitability.
Animals and Language – Nim Chimpsky
I have recently started reading about animals and language. Animal use of language is really interesting to me. However, I don’t regard it as an area where significant breakthroughs in social science or natural science, unless of course we eventually encounter an alien civilization, intelligent life from some other planet.
In the context of the generative grammar hypothesis one interesting thing is that animals do not use their limited human language communicative ability to ask questions. This is interesting because it parallels Aristotle, who regarded animals as having only vegetative functions. For Aristotle, the natural slave can “apprehend, but not form questions”. So the fact that animals rarely or never appear to pose questions to humans may be a warrant for generative grammar. Likewise, it appears that animals trained to use human language do not do so using grammatical rules. That too is a warrant for Chomsky’s argument. However, those warrants are still far from any proof of the generative grammar hypothesis, and do not contrary the various observed grammatic divergences which tend to disprove generative grammar.
Chomsky, recall, argues that language is like a self-similar self-extracting archive, a recursive i.e. self referential structure, and that this structure is universal. I do not believe I have misread or misunderstood Chomsky’s thesis. He argues that all human grammars can be modelled using one function; that function, if it existed, could be better modelled recursively than iteratively. However, I have pointed out lots of instances of divergences in human grammar which could not arise were all grammatical structures self similar. Chomskys’ generative grmamar would be a meta-grammar which would account for both pre-positions and post-positions as well as for languages which do not use tenses and those which do, and which also accounts for languages which do or do not use cases, and if so which cases. Well, it is perhaps mathematically possible to make such a meta grammar. However, it is also possible to model the universe using a heliocentric model. The math however is needlessly complicated. Occam’s razor and similar heuristics indicate that a simpler theory which acounts for all the observed data is better than a more complex one. The theory that all language grew out of a nostratic model but then evolved in radically different directions is simpler, has at least as much explanatory value, and actually corresponds to the observed linguistic facts.
The limits on the trained instances of human cognizable language used by animals are
1) no questions
2) no grammar
while *consistent* with Chomsky’s generative grammar hypothesis but are not a *proof* of it. Chomsky argues that human grammar is universally the same, i.e. inherent. These findings in animal language do not contrary that. However, they are not inconsistent with the nostratic-evolutionary hypothesis which I am presenting as a better more accurate explanation of the origins of language and evolution of grammar. If generative grammar were true then grammars would not evolve. However, grammars do evolve as can be seen even within the English language.
泰山
I saw that Dershowitz, whom I believe Finkelstein accused of plagiarism, has settled the lawsuit against him for rape. I’ve no idea of the merits or lack thereof in the rape accusation, though I do think the plagiarism accusation is inexact.
Like I said, I am not Finkelstein.
In a similar vein, vigenerable name, Lewin Carol wrote a book of some fame. It’s wonderous topic? Logical games!
https://ia802707.us.archive.org/1/items/gameoflogic00carrrich/gameoflogic00carrrich_bw.pdf
I have not written here yet about game theory: mostly I am concerned about the Solomon islands problem (dominant strategy with information constraints) and the Monty Hall puzzle. I promise to say somethings about one or both in the next post, likely tomorrow.
Carol’s game is meant to teach propositional logic, and can be played solo. I don’t think it would be too useful for the LSAT, but I could be wrong and it might be a fun and whimsical way to get into logic, a field which I only studied formally after my undergraduate degree in politics – and which all would-be jurists must master. I do not regard the LSAT logical games section as a good predictor for aptitude in law. I regard it as one more selector for social class. Why the legal system thinks, or thought, that legal knowledge should be limited to the governing elite escapes me.
I tend not to comment on Chinese domestic law, because I do not yet speak Chinese. Thereto, fellow language learners might enjoy this quiz on Chinese characters. I hope to have time to mark it up so that it will be more useful. http://mindworksa.atlervista.org/learnchinese
Of course, one day I will study Chinese law, but only after attaining at least minimal proficiency in Mandarin. Despite my prudent reticence I note that I was disappointed that the court dismissed their claim for civil union. People should be free to organize their private affairs, generally speaking. The litigants plan to appeal. I will not comment on that further because 1) the language is still beyond me 2) I am still not sufficiently acquainted with Chinese law. I am however certain that Maoist theory regards same sex relations as legitimate. Although I have not read Mao directly addressing mentioned homosexuality or transsexuals the fact is Mao upheld equal rights of men and women, ending foot binding, forced prostitution, and increasing women’s literacy.
Likely, Mao was a terrible economist. He was certainly a brilliant general. Successors to Maoism in the West claim the right not only to equality of men and women but also of homosexuals, heterosexuals, and transsexuals.
I would prefer, if possible, not to talk about Chinese political theory publicly. I do not yet have the linguistic or political expertise to do so, despite having a very deep understanding of Marxism, Leninism, and Maoism. It would be imprudent, possibly presumptuous or rude of me, and I might even be naive. I try only to comment on social problems in ways which will be helpful and know very well.
I plan to build some quizzes. I found this quiz / survey on economics and investing really well done. http://incomeiq.schroders.com/en/uk/investor/behavioural-finance/?utm_source=Taboola&utm_medium=Content&utm_campaign=incomeIQUK
Well, I hope you enjoy mindworks! 🙂
好好 学习， 天天 向上
Hǎo hǎo xuéxí, tiāntiān xiàngshàng
Gender, Sex, and Language
I have not written about gender and sex in language partly because gender and sex strike me as ridiculously stilted and obvious constructs, not unalterable natural phenomena but instead very human and thus malleable. Of course, I do not live in a gender binary, so things which might escape those who do are obvious to me. Still, I don’t usually bother to vector my arguments through gender, except to point out the fact that gender is a social construct which occurs across a spectrum, just like sex, one of the material bases of gender also ranges through a spectrum. Work is the other material fact of gender. Sex and gender are sufficiently conflicted that it is sufficient to point out that they are social constructs to defuse or even resolve varieties of social conflicts which involve sex or gender.
So I did not raise the gender and sex aspects of linguistics that also refute Chomsky’s generative grammar thesis till now.
Another couple of empirical refutations of Chomsky’s generative grammar thesis are seen in gender and articles. Some language have gender, others do not. For example, in Estonian nouns are not gendered, nor or personal pronouns. Tema (formal) Ta (informal) indicate he or she. Likewise, in spoken mandarin Chinese there is no difference between the pronouns “ta” for he or she. Gender is a social construct just like language is which is revealed in a serious study of foreign language.
It is of course interesting that Chinese and Estonian the word “ta” means he or she: a refutation of generative grammar is not necessarily a refutation of the nostratic hypothesis of the origins of human language. However, if generative grammar were true — and as I am showing, it is not — then the nostratic thesis would necessarily follow.
What about articles, words like “a”, “an” or “the”? In some languages they exist, in other languages they do not exist. Meanwhile, in those languages which have articles some languages gender the articles, others do not, and some languages inflect their articles to reflect case, whereas others do not. In English articles are no longer inflected. In German they are. In Estonian, Russian, and Mandarin Chinese articles do not exist. One can approximate the use of articles in those languages by the use of “one” or “that”.
Again, those are empirical facts which refute Chomsky’s theory of generative grammar.
I believe I have already pointed out that different languages use fairly different structures for indicating tense.
The only aspects of grammar which appear to be universal are: nouns and verbs. Prepositions and postpositions though together existing in the few languages I have (intensely) studied do not exist in all languages. English has no post-positions. Estonian does not naturally have prepositions. And as we know nouns in some languages are inflected, but not in others. Likewise, there are serious differences in the different grammars of verbs, and not only in the existence or formation of tenses. Some languages readily admit that verbs can function as nouns: German is the best example I know of. Some are also ready to gladly join nouns and/or verbs to form new compound nouns — again, German is a most obvious example. English in contrast is more reticent: “That’s good eating.” would be good German grammar but is incorrect in English and not even particularly colloquial — who really talks like that, other than stereotypes? Likewise, English is not agglutinative: English tends not to form compounded nouns. Runningboard is not English, even though we know from old media that cars once had a “running board” on which one could stand and ride, but which was really meant for wiping one’s feet before getting into the car. English indicates compound nouns correctly with the dash, e.g., “running-board”.
Thus, generative grammar collapses into something which even if it were true – and it isn’t – is almost nearly useless. All languages have nouns and verbs? Wow, you don’t say? The generative grammar thesis, which promised that one recursive function could be used to parse all human languages simply is not true as can be seen from so many structural differences even among languages spoken by vast swathes of the planet. It would likely be even more refuted by a consideration of languages of native nations in what we now call the Americas, the South Pacific, and Africa. Generative grammar as a theory simply has no predictive power, which is one of the verifications of the scientificity of a theory.
A more interesting question is how can such an obviously untrue idea have been the foundation of a successful radical academic’s career?
Well, Chomsky said to Finkelstein: “if you follow this, you’re going to get in trouble—because you’re going to expose the American intellectual community as a gang of frauds, and they are not going to like it, and they’re going to destroy you.”
But I’m not Finkelstein. 🙂
Learning Chinese – Wish list
I am learning Chinese and would like to find a bi-lingual parallel hypertext of Sun Tzu or Mao Zedong in simplified Chinese and any of French, Russian, German, Spanish, Estonian, or English. Any links or electronic files are greatly appreciated.
Human intelligence, machine “intelligence”, animal intelligence?, communication, and animism. :)
Is artificial intelligence possible? Well, that depends on what we mean by “intelligence”. If we mean “memory”, machines clearly remember things better than humans. If we mean “chess playing” machines, again, better than humans.
Humans have a real limitation: our short term memory, also known as “working memory” is terrible. Furthermore, it takes us no little time to put information into our “long term memory”, where, again, we are outclassed by machines.
Yet, clearly, humans do some things better than machines. Deriving new hypothetical inferences from existing known data, for example.
This does not mean that machines will not “evolve” into the ability to engage in “creative” acts such as painting (computer composers already exist) or complex problem solving. However, to present, the capacity of humans to integrate a vast array of disparate information and derive not only certain inferences therefrom but also potential hypothesis, the ability to develope metacognitive process – heuristics – seems unique to humans.
Seems. So far.
The problem of machine intelligence relates back to the question of animal intelligence and communication I alluded to earlier. For example, apparently, a beluga whale was able to vocalize the word “out” to signal its displeasure, and this in a hearing channel (frequency) humans could perceive.
Meanwhile, what about mice? It is known that mice can remember, can negotiate mazes, and engage in primitive forms of reason. Are they “thinking”? Are they “self-aware”?
Just as we can look at other species to question the idea of intelligence and communication we can also look at other bodies in the universe such as planets or solar systems. Aristotle regarded such things as inanimate, as not having a principle even of vegetative motion. Volcanos and earthquakes however are motion. For all we know humans are but cells in a giant living body, the so-called “gaia hypothesis” of the earth as a living organism, and possibly a self aware one.
Law School
Law school is like a pleasant walk in the woods, a real picnic.
Except, there is a murder in the woods.
And the murderer in the woods is hunting you.
And the murderer in the woods is part of a conspiracy!
So the food in your picknick basket might be poisoned!!
And the woods are on fire!!!
(c) Eric Engle, Doctor of Laws.
Chomsky and Generative Grammar: Science is built on a foundation of failed theories.
Noam Chomsky was originally a linguist. He made himself famous arguing for a theory of a universal generative grammar. For Chomsky, language is a recursive structure, and grammatical features are universally distributed; language, for Chomsky, is a “self extracting archive”, so to speak.
The problem with this theory, which is elegant and simple and thus scientifically attractive, is that it is empirically untrue. Beyond the existence of nouns and verbs there are many serious linguistic divergences which are inconsistent with Chomsky’s thesis and in my opinion invalidate it. No matter how attractive a theory is, however parsimonious it is, whatever explanatory power it offers, if it does not match up with all the empirical facts then it must be modified or rejected.
Leave aside for a minute the idea that if language is an inherent structure to humanity, and unique to humanity implies that knowledge is in some sense genetic. A twisted person could argue that Chomsky proffers a theory which is ultimately genetic, i.e. racist. Chomsky is hardly a racist but if language is a biological function then it is one step from essentailism into tribalism and it ends with race supremacism. Also leave aside the “Jane Goodall” critique, that we increasingly see examples of communication among various animal species, most famously Coco the ape who signs. Leave aside also the idea that perhaps other animals communicate complex ideas but using methods which either evade our ability to perceive them as being outside our frequency of hearing or using a radically different grammar, or which we have not cognized as communicative. There are many bird songs we cannot replicate with our vocal chords, yet that does not mean we do not speak or sing.
For once I disagree with Aristotle; Aristotle believed that other animals only emote, and do not think or communicate, rather only feel. That too appears empirically disproven at least among the most developed animals: some great apes do sign. However, even within an anthro-centric view which limits itself to human speech the generative grammar thesis does not line up with the facts of real-world languages.
There are several examples of unique grammar structures found in some languages but not others. I address them briefly here to show why Chomsky’s theory, though elegant, is empirically incorrect.
Probably the easiest example for those who do not know several foreign languages is word order. While mostlanguages use the subject-verb-object model for declaratory statements and verb-subject-object for questions word order in languages otherwise differs. Some languages, for example Mandarin, have fairly rigid word orders, a few have in theory no fixed word order (e.g., Latin) and most have a mix of rigid and flexible rules, English being one example there. However, the mix of rules and flex varies from language to language, and anyone who speaks German the rather different rules of word order found in that language. German has a more rigid word order than English, and its ordering of words, beyond SVO or VSO is fairly different from English even though it is a declined language.
Beyond the fact of word order, which as anyone who speaks both German and English can tell you varies quite a bit even between closely related languages there are other emprical facts which demonstrate that Chomsky’s thesis of language as universal and inherent is wrong. To my understanding, Chomsky is arguing that language is self-similar, i.e.recursive, and this is why he calls it generative grammar. Either reading of Chomsky – language as a universal recursive function, or merely as universal, is empirically untrue.
Particles are the easiest example for an anglophone to see. Particles do not exist in English. They do in Russian with the “li” particle indicating hypotheticals, i.e. the subjuntive. “be -li” in Russian would be “if it be so” in English.
Russian is the only indo European language I know which has particles. Chinese has many particles. “Duh” as a particle indicates possesion. “Luh” as a particle indicates the past tense. “Guh” as a particle indicates some specific instance, and seems close to the partitive/genitive distinction.
In English we use prepositions. “Of”, “To”, “From” etc. In English, prepositions increasingly converge so that old-school prepositions such as unto, hereunder i.e. compounded prepositions are no longer widely used and are even archaic e.g. “Wherefore art thou, Romeo?” While Indo Europen uses prepositions Uralic languages such as Estonian use post-positions. In Estonian we would say “The lamp is the table on.” This is another example of why there is not in fact a universal grammar beyond, perhaps, nouns and verbs.
As well as pre- and post- positions we can note the existence of declensions. English only has vestiges of declensions in pronouns: “he”, “his”, “him”, “to him” are the nominative genitive accusative and dative forms. Likewise who, whose, whom, to whom; she, her, her, to her. Declensions no longer exist in English articles and really no longer exist in Romance languages like French, even though Latin had more cases than Old English. Yet, in modern German declensions still exist, which has four cases and declensions are even more notable in Russian with six cases. The richest countries for declensions seem to be Estonian and Finnish with 13 or 14 cases. Chinese in contrast has no cases.
Verb tense is also hardly universal. Chinese has no tense. Tense is indicated contextually by time markers and by particles in Chinese. English in contrast has remarkably complex tenses and so does French. Estonian and Russian in contrast only have three tenses — past present and future, but Russian has perfective and imperfective verbs to indicate whether the action was done to completion or is ongoing, whereas the two verb forms in Estonian, which also has but three tenses are used to indicate modality. Russian does not use the verb to be in the present tense, it is indicated contextually. Auxiliary verbs are not used to indicate tense in Russian.
These are the principle features of those languages which I have learned that differ sufficiently from each other that I am confident as an empirical matter that grammar is not universally uniform beyond nouns and verbs. There are sufficient basic words in all learned languages which appear to basic to be other than the consequence of a proto-world language. The nostratic hypothesis can be well proven by comparing just English, German, French, Estonian, and Russian — one language from each of the European language families apart from the isolates.
While I do believe that there was once a proto-world language with but one grammar, this grammar evolved and split and is not in fact an inherent biological function universal not merely in existence but also in development. We can see the decline of declensions and the convergence of prepositions quite clearly in English. If language were generative and a biological function then language would not evolve, yet it does.
Chomsky’s view should be seen in context of the times he wrote it. Machine analysis of language was in its infancy. Foreign language acquisition was considerably more difficult. The generative grammar hypothesis may well have served a useful role in the development of machine processing of language for translation. Yet, increasingly available historic and genetic evidence through better archeaology and genome analysis as well as the increasing awareness that language is not a uniquely human construct explain why for empirical reasons we must see Chomsky’s attempt to cast light from “the tower of babble” as but an effort. Chomsky, like Einstein, Keynes, Kelsen, sought to develop a general theory. Like each of them, his general theory must be seen as having collapsed into a special theory. Generative grammar is at least a special theory applicable to tbe machine processing of language. Beyond that it is unfortunately empirically flawed, like the other great efforts at general theorizing in the 20th century.
Evolutionary language theory is the future. The behaviorial theory of language has yet to be developed, and will provide key insights for data mining, machine intelligence, and AI user agents such as Cortana.
Job Search
Often my students need a job. Consider civilian careers in the military. Here are some links.
Teach English in Japan
http://www.interacnetwork.com/recruit/2014-recruiting.html
It looks legitimate. Idk? Ask around not an endorsement.
English legal terminology
Oh, Apple?
“obstruction of justice”
“compounding crime”
“misprision of felony”
“complicity”
“accessory after the fact”
. . .
Prediction
Donald Trump will win the republican party nomination to stand for election to the Presidency of the United States of America.lol.
Antonin Scalia
Justice Scalia just died; although I was very much his political opponent, I feel it properly respectful to give my respects. I sincerely disagree with much of his views, however he sincerely believed (and I did not disagree with all his beliefs).
I never addressed his works directly, and probably will not, it is only fair to give an opponent the chance to respond.
It bears repeating: do you still think Snowden is a hero and the NSA a villain?
Russia having success in hybrid war against Germany
The attack came in the form of a Saturday evening newscast from
Moscow. It would take days before the German government realized what
was happening, but by that time the damage was already done. Germany’s
sizable Russian-speaking community –made up of migrants from the former
Soviet Union — was up in arms about a report that refugees from the
Middle East had gang-raped a 13-year-old Russian girl in Berlin — and
that the local police was covering up the crime.
Until recently, Germany had largely been spared the wrath of Russia’s
state propaganda machine. Germans, in their eagerness to be
conscientious world citizens and reliable business partners, were seen
in the Kremlin as allies to coddle and co-opt. That view changed
abruptly in 2014, when Angela Merkel led the drive for European Union
sanctions to punish Russia for its war against Ukraine. Now, as the
German chancellor flounders domestically because of her open-door
refugee policy, she has made herself vulnerable to attack. “I’ve never
seen so much glee from the Russians as during Germany’s refugee crisis,”
said a diplomat in Berlin.
On Jan. 16, Russia’s state-run Channel One led the 9 o’clock evening news with a shocking report from Berlin.
“Evidence has emerged that migrants in Germany have started raping
children,” presenter Yekaterina Andreyeva said in the intro. That
evidence came in the form of testimony by the “Aunt Marina” of a teenage
girl, identified as Lisa, who claimed she had been abducted on her way
to school and raped by migrants for more than a day. More proof that
Germany is going to hell in a hand basket was a blurry video of a
supposed recent arrival who bragged about raping a “virgin” with five
other men. (Germany’s Bild newspaper later reported that the video had appeared on YouTube more than six years ago.)
Lisa’s relatives told Channel One that the police was refusing to
find the perpetrators. The Berlin police was unavailable for comment
over the weekend. Frightened neighbors, mostly members of the Russian
diaspora in Germany, gathered for a “spontaneous” protest in the Marzahn
district in eastern Berlin, Channel One reported. One woman tearfully
recounted how her 14-year-old child was terrified of passing a refugee
shelter on the way to school. It later turned out that the neo-Nazi
National Democratic Party had organized the protest.
Coming just weeks after widespread sexual assaults by migrants in
Cologne on New Year’s Eve, Lisa’s story was incendiary — and spread like
wildfire through social media. The Berlin police finally addressed the
case in a press release posted on Facebook. While the girl had indeed been reported as missing, the police said, she had not been abducted or raped.
Yet to those who believe that German authorities have lost control
over the country, the police statement sounded like a cover-up. The
following weekend, Russian speakers held rallies across Germany. In
Berlin, 700 protesters, backed by the anti-Islam movement PEGIDA, gathered in front of the Federal Chancery holding smiley-face balloons with their mouths taped over and signs reading “Our children are in danger.”
What should have been a case for family counselors and detectives
blew up into a diplomatic scandal. As Lisa holds both German and Russian
citizenship, the Kremlin entered the fray. In late January the Russian
embassy in Berlin sent an “aggressive” protest note to the German
Foreign Office demanding a full investigation, according to Der Spiegel.
Then Russian Foreign Minister Sergei Lavrov brought up “our girl Lisa”
in his annual press conference in Moscow.
“I really hope that the migration problems won’t lead to an attempt to
whitewash reality with political correctness for domestic political
reasons,” Lavrov said. “That wouldn’t be right.”
The German government could no longer ignore that it was the target
of a full-on propaganda attack, including very public trolling by the
Russian foreign minister. Merkel’s spokesman, Steffen Seibert, denounced
the “political instrumentalization” of the case. Even Frank-Walter
Steinmeier, Germany’s foreign minister who never tires of “dialogue”
with the Kremlin, lost his patience, saying there was no justification for using a 13-year-old girl for “political propaganda.”
In the meantime, the Berlin police were getting to the bottom of what
happened to Lisa in the 30 hours she had gone missing. Her accounts of
the supposed kidnapping were contradictory, and a medical examination
showed that she had been neither raped nor beaten. The trail finally led to the apartment of a 19-year-old German acquaintance,
where Lisa had temporarily hidden from her parents because of problems
at school. What confused the story was the discovery by investigators
that long before her disappearance, the girl had in fact had sexual
contact with two men, both of Turkish origin, and neither a refugee.
State prosecutors have since opened an investigation into child
molestation.
The truth doesn’t matter, because it’s already mission accomplished
for the Kremlin. By mentioning the case of Lisa publicly, Lavrov pulled
off a common trick in Russia’s self-declared “information war” against
its enemies: a government official picks up on a report in state media,
leading to its legitimation and further dissemination. Fake news is
essentially laundered and enters the public consciousness as fact.
Two years ago, it was hard for people in the West to imagine how
Russian state media used half-truths and blatant lies to distort the
pro-EU Maidan protest in Kiev into a fascist conspiracy. When Ukraine’s
president, Viktor Yanukovych, fled to Russia and a provisional
government took power, the Kremlin news channels spread reports of armed
gangs of Ukrainian nationalists terrorizing Russian speakers in
southeastern Ukraine. Having been inculcated for months about the threat
of Ukrainian revanchism, large parts of the Russian-speaking population
were genuinely scared — and supported an intervention by Russia on
their behalf. Viewers at home and abroad had been well primed for the
coming conflict. The news was fake; the fear was real.
As shown on Russian state TV, the hysteria among Germany’s Russian
speakers toward refugees was identical to the panic of Ukraine’s Russian
speakers about fascist gangs. The main message of the inflammatory
reports from Berlin was that Merkel was finished, Germany was on the
decline, and Western liberal democracies were undoing themselves via
foolhardy multiculturalism and misplaced tolerance.
It’s no small irony that the principal actors in this apocalyptic
view of Europe’s refugee crisis are former migrants themselves. After
reunification in 1990, Germany opened its borders to migrants from the
former Soviet Union: more than 2 million ethnic Germans and some 215,000
Jews, according to the Federal Office for Migration and Refugees.
Integration into German society was not always successful, however, and
much of the older generation still gets its news from Russia thanks to
satellite channels and the Internet.
For TV viewers in Russia, the plight of Russian speakers in Germany —
allegedly victimized by refugees and ignored by the police — fits into
the larger narrative of “compatriots” in neighboring countries who are
subjected to discrimination and violence. Half a million of these
“Russian Germans” are ready to move back to Russia because of the flood
of refugees, state news agency RIA Novosti reported last week, citing the leader of an obscure Russian immigrant party in Germany.
Stoking outrage in Germany’s Russian-speaking community is not an end
in itself, but a means to exploiting cracks in German society exposed
by the refugee crisis. Russian President Vladimir Putin, who served as a
KGB agent in Soviet-occupied East Germany and speaks fluent German,
believes that Berlin and Moscow can form a strategic axis based on
Russian natural resources and German technology. Merkel, in her
insistence that Russia do more to bring peace to Ukraine, is getting in
the way.
In March 2014, Putin appealed directly to Germans
for their support, drawing parallels between the annexation of Crimea
and German reunification. Winning over German public opinion became a
priority, and the state-owned network RT, formerly known as Russia Today, opened a German channel, RT Deutsch,
later that year. The Kremlin was exploiting a growing distrust among
Germans toward traditional news outlets, expressed in the far-right
PEGIDA protests. A poll conducted in October found that 44 percent of Germans agreed with PEGIDA that mainstream media distorted the news to suit the elites.
Propaganda was only one element in the so-called “hybrid warfare”
that Russia directed against Ukraine. Long before the Kremlin deployed
“little green men” — Russian troops without insignia — to Crimea, it had
used other non-military measures such as playing pipeline politics,
buying politicians, and backing fringe parties with radical agendas. Those same measures are being used in Germany and other European countries.
Contrarians on the left and right are enthusiastic about the support from Moscow.
Alexej Dankwardt, a Leipzig city councilman, was kicked out of the Left Party caucus
last month after writing on Facebook that he wished Merkel would be
toppled in a “German Maidan” and forced to “sprint half-naked to save
herself from the angry masses.” Dankwardt, who represents Lisa and her
family as a lawyer, has become a frequent commentator on Russian state
TV.
In a November 2014 meeting with Alexander Gauland, one of the founders of the far-right Alternative for Germany, Russian diplomats offered “strategic advice” to the upstart, euroskeptic party. Last March, Udo Voigt, a leader of the National Democratic Party, attended a gathering of European rightwing extremist parties in St. Petersburg.
The standard Kremlin response to charges that it’s waging a hybrid
war against Europe is that Russia is simply defending itself against
similar methods employed by Western powers. In a speech to Russia’s Academy of Military Sciences in January 2013,
Chief-of-Staff Valery Gerasimov complained that Russian knowledge of
asymmetric warfare was “superficial.” The North Atlantic Treaty
Organization, and the United States in particular, had demonstrated
their mastery of non-military campaigns in the Arab Spring and Ukraine’s
pro-Western Orange Revolution in 2004, Gerasimov said.
Such modesty is disingenuous. Disinformation and subversion as
weapons of war are as old as catapults and cavalry. The Kremlin’s
advantage in the information age is that all of Russia’s major media
outlets are under its control, allowing it to hammer its audience with
one, unified message. The Kremlin claim that it’s in an “information
war” with the West implies that there is vast conspiracy among myriad
media in the United States and Europe, public and private, to produce
the same lies about Russia.
In fact, Western diplomats are at a loss about how to counter the
effects of Kremlin propaganda on Russian speakers in EU countries. In
March, the European Union established the East StratCom Task Force
“to address Russia’s ongoing disinformation campaigns.” Despite its
important-sounding name, the bureaucratic unit has no budget, 10
employees, and barely 4,000 Twitter followers.
A year ago, Germany’s domestic intelligence service warned that Russia was widening its espionage activity in Europe
with the goal of destabilizing its neighbors and influencing
decision-makers. A cyber-attack on the main server of the German
parliament last spring has since been traced back to Russian military
intelligence, Der Spiegel reported, quoting a high-ranking security
official. There have reportedly been similar attacks on other NATO
states and German arms companies.
A legion of useful idiots is ready to do the Kremlin’s bidding. Horst
Seehofer, the head of Merkel’s Bavarian sister party the Christian
Social Union, has been haranguing the chancellor for months to tighten
her refugee policy. On Wednesday, Seehofer met Putin outside Moscow,
where the Bavarian premier expressed his hope that sanctions against Russia would soon be lifted.
Afterwards, Seehofer told journalists it was “classy” of Putin to say he wouldn’t meddle in Germany’s refugee policy. Meanwhile, the Rossiya TV channel trumpeted the “commotion” that the visit had caused back in Berlin.
Infomedia Center
Phone Scandal
..U-Still h8 the NSA?
‘Raped’ German-Russian teen spent night at friend’s house: Berlin
German police last week
rejected a German-Russian teenager’s account of kidnapping and sexual
assault, but nevertheless passed the case to the prosecutor’s office
(AFP Photo/Patrik Stollarz)
rejected a German-Russian teenager’s account of kidnapping and sexual
assault, but nevertheless passed the case to the prosecutor’s office
(AFP Photo/Patrik Stollarz)
Berlin (AFP) – A 13-year-old Russian-German girl who ignited
an international row by saying she was raped by migrants was actually
sleeping at a friend’s house on the night in question, Berlin
prosecutors said Friday.
an international row by saying she was raped by migrants was actually
sleeping at a friend’s house on the night in question, Berlin
prosecutors said Friday.
Authorities in the German capital said their
investigation had concluded that the account of the girl’s kidnapping
and sexual assault this month by three men from “southern countries” had
no basis in fact, despite high-level Russian claims to the contrary.
“Using
data from her broken mobile phone, we were able to access information
about a young German man aged 19 — an acquaintance of the 13-year-old
girl,” prosecutor’s office spokesman Martin Steltner told AFP.
“The young girl wanted to hide at his house because she was having problems in school.”
The
incident has exacerbated tensions between Germany and Russia already
strained over the conflict in Syria and European Union sanctions imposed
on Moscow over Ukraine.
Russian
Foreign Minister Sergei Lavrov had complained that Moscow initially
heard about the incident not from Germany officials “but from the
Russian-speaking community, then from the family’s lawyer”.
Foreign Minister Sergei Lavrov had complained that Moscow initially
heard about the incident not from Germany officials “but from the
Russian-speaking community, then from the family’s lawyer”.
On
Tuesday he tried to lend credence to the girl’s allegations by saying
that she had disappeared “absolutely for sure” against her will and that
details of the incident had “been hidden.”
Tuesday he tried to lend credence to the girl’s allegations by saying
that she had disappeared “absolutely for sure” against her will and that
details of the incident had “been hidden.”
German
Foreign Minister Frank-Walter Steinmeier on Wednesday accused Lavrov of
“exploiting” the case of the girl, named as Liza by Russia, and
“inflaming” an already heated national debate about migrants.
Foreign Minister Frank-Walter Steinmeier on Wednesday accused Lavrov of
“exploiting” the case of the girl, named as Liza by Russia, and
“inflaming” an already heated national debate about migrants.
– ‘Political pressure’ –
Friday’s
findings “clearly defuse the propaganda that had developed recently
around this case,” Frank Henkel, the German capital’s top security
official, said in a statement.
Without mentioning Moscow, he
said Germany is a “state based on the rule of law” and no “political
pressure from abroad” would alter its “constitutional principles”.
The teenager went missing on January 11, reportedly on her way to school.
She
subsequently returned and filed a police report, with her parents
telling investigators she was kidnapped by three apparently foreign men
at a railway station in eastern Berlin and taken to a flat where they
raped and beat her.
German police last week rejected the teenager’s account but nevertheless passed the case to the prosecutor’s office.
Berlin
prosecutors had said there was no evidence that the girl was forced to
have sexual relations but opened a probe against at least one man on
possible statutory rape charges stemming from a separate incident since
she was under the age of consent (14 in Germany).
Steltner said
Friday that investigators now believe that the girl had had sex with two
men in their 20s, “a Turkish citizen and a German of Turkish origin”
who may now be charged with abusing a minor.
The incident came to
light with Germany in an uproar over a spate of New Year’s Eve sexual
assaults on women in Cologne allegedly carried out, for the most part,
by Arab and North African men, that was initially met with silence from
the police.
Last year, nearly 1.1 million asylum seekers arrived
in Germany, most of them from Syria, Afghanistan and Iraq, with
Chancellor Angela Merkel under increasing pressure over her welcoming
stance toward refugees fleeing war.
Source: http://news.yahoo.com/raped-german-russian-teen-spent-night-friends-house-142011798.html H8ters gonna h9.
More German language learning resources!
|
http://www.amazon.com/author/quizmaster
February approaches…
muahaaha… 🙂
Foreign Language-Learning Fellowships! (Scholarships)
http://www.borenawards.org/
This program looks fantastic. Please consider it: if any of you require a recommendation or further details just ask!
UN Opportunities (in German)
http://www.auswaertiges-amt.de/DE/AusbildungKarriere/IO/Organisationen/VereinteNationen_node.html#doc345060bodyText3
Opportunities in the U.N. (in German)
Both the U.S. DOS and the German Foreign Ministry (AA) try to coordinate fairly closely with the U.N., so though this information is geared to Germans it is relevant to U.S. people too, since the U.N. is an international organization.
translate.google.com
dict.leo.org
in case you have language difficulties.
Scholarship opportunities in Germany with DAAD
https://www.daad.org/undergrad
I know you all go home soon; some of you may wish to come back, whether as undergraduate or graduate students. The German Academic Exchange Service (DAAD) may be able to help you either with finding a study program right for you or with funding.
More or less DAAD tries to fund sciences, so as to get technical breakthroughs, improvements in economic efficiencies; though language learning is also supported, and it is not impossible to get funding for humanities, though you should try to point out how your proposed study would bring added value to the Germn or at least European economic area and/or benefit German foreign policy.
There are also the political party scholarships, e.g. Friedrich Ebert (SDP), Heinrich Böll (Greens) Konrad Adenauer (Conservatives), Rosa Luxembourg (Linke). Rosa Luxembourg has the least funding, but does have a New York office.
You should also be aware that those of you who speak German might be able to get internships with German consulates in the U.S.
It was great having you as students I am sure your careers will flower!
Thomas Gibbons-Neff
https://www.washingtonpost.com/news/checkpoint/wp/2015/11/24/the-last-time-a-russian-jet-was-shot-down-by-a-nato-jet-was-in-1952/
Thomas Gibbons-Neff seems to know what he is talking about and writes well, so I recommend reading him.
I would just add “officially” to that title, but that is in the article. Enj0y.
DAAD language scholarships (sorry about the formatting)
Application Portal Closing on December 1st at 5pm (EST)
|
|
| December 1, 2015 is the deadline to submit an online application for DAAD’s Intensive Language and University Summer Course Grants. The application portal will close at 5pm (Eastern Standard Time) on that day, so applicants are advised to be mindful of this time limit when preparing and submitting application materials. Hard copies of the application must also be received by DAAD no later than December 11. |
The right angle on a hard curve.
http://news.yahoo.com/doctor-helped-launch-modern-paramedic-system-dies-98-003503538.html
I try not to talk about obituaries. That man was a hero. We all lost tonight.
Let’s try to live up to his example.
LUIS – UN Job app tips!
https://blogs.state.gov/stories/2014/10/30/working-united-nations-insider-application-tips
If anyone sees this please point it out to Luis. Thank you!
Free Online Law Search Engine.
http://mindworks.altervista.org/index.html
This is my new web site, with links to free online law search engines I authored as well as free copies of my law review articles. Enjoy saving your law firm some westlaw and lexis fees.
Here is my amazon author page: http://amazon.com/author/quizmaster
If you read one of my books feel free to contact me: [email protected]
I write for you and want you to be happy.
February is only a four months away!
http://www.amazon.com/U-S-Contract-Law-German-Jurists/dp/1492860379/ref=la_B00J9YYA4K_1_14?s=books&ie=UTF8&qid=1444993663&sr=1-14&refinements=p_82%3AB00J9YYA4K
http://www.amazon.com/Quizmaster-Point-Law-Contracts-4/dp/1515045463/ref=asap_bc?ie=UTF8
http://www.amazon.com/Dr.-Eric-Allen-Engle/e/B00J9YYA4K
http://www.amazon.com/Quizmaster-Point-Law-Civil-Procedure/dp/1515034682/ref=asap_bc?ie=UTF8
http://www.amazon.com/Quizmaster-Point-Law-Contracts-4/dp/1515045463/ref=asap_bc?ie=UTF8
Sanctions
http://news.yahoo.com/747-plane-engine-snaps-off-during-iran-flight-104820363.html
For example.
Yes, they work, eventually. It is a question of how much the lawless regime is willing to make its own people suffer.
…Eventually the people say “enough is enough”.
U.S. Constitutional Law for German Speaking Jurists
Airys
http://news.yahoo.com/were-targeting-terrorists-syria-kremlin-093858253.htmlS
The next president, like it or not, will wind up facing a proxy war in Syria.
Ugh.
Chains of liability for suppliers
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1655983
We saw the criminal law regime was only somewhat satisfactory.
Now we look at the issues of human rights in tort law.
I had mentioned the Alien Tort Statute and the Torture Victims Protection Act as examples of extraterritorial laws which seek to give remedies to people for violations of their fundamental human rights even in failed states, dictatorships, or corrupted governments.
Today we look at the liability for producers and distributors of goods for violations of human rights.
Corporate Main Office (corporations, like countries, are legal persons. partnerships are not)
owns
wholly owned subsidiary in the third world
hires
subcontractor who commits various torts
Can the main office be sued for the act of the subcontractor? Probably not.
lex locus delicti
imputed liability due to agency
Bhopal
Mynmar
complicity – accomplice liability
Can the corporation itself be liable? What is a corporation
-a legal person able to sue and be sued and also liable on taxes for its own income
-with shareholders
-and directors who use the shareholders money to run the business.
In common law corporations can be criminals, but not in German law.
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1020517
Funding human rights activism
One way activists fund their human rights projects is through performance art.http://www.reclaimyourcity.net/
This is a current Berlin art and activism project, Dr. Nathanson will be interested in that I bet, so feel free to tell people about it. I am not involved in it.
How else to fund human rights? Crowdfunding
https://www.kickstarter.com/
https://www.gofundme.com/
or stock market investing
http://www.investorguide.com/article/11632/valuation-methods-used-in-fundamental-analysis-of-stocks-igu/
Its sometimes possible to get funding through private foundations and government grants, glwt, everyone wants free money so it is tough to get a grant.
Social Media and Human Rigths / Foreign Policy
Social media obviously became big in the last decade, and by now all the embassies have their own youtube, they often twitter, and have a facebook page. I have not pointed that out because I think you already see that for yourselves. Emailing lists are another example. So e.g. the German foreign ministry has an email list which I am subscribed to. This recent post of theirs is an example of how human rights and diplomacy interact and how the international system “self-regulates” by invoking human rights, here, the ICCPR.
Auswärtiges Amt
www.auswaertiges-amt.de
==== ==== ==== ==== ==== ==== ==== ==== ==== ====
Human Rights Commissioner Strässer on the release of Vietnamese blogger Ta Phong Tan
21.09.2015
The Federal Government Commissioner for Human Rights Policy and Humanitarian Aid, Christoph Strässer, issued the following statement on 21 September on the release of the Vietnamese blogger Ta Phong
Tan:
“I am very pleased that Vietnamese blogger Ta Phong Tan has been released. We worked very hard in favour of this outcome. At the same time, I regret that she has apparently only been released from
prison on the condition that she leaves the country immediately.
It is incongruous that Viet Nam has committed to upholding human rights in its new constitution and yet at the same time is not respecting freedom of opinion as enshrined in the ICCPR, ratified by
Viet Nam. All those in prison for having exerted their right to freedom of opinion or demonstration should be released without delay.”
Background information:
On 19 September 2015, blogger Ta Phong Tan obtained early release from prison after three years of incarceration. From Hanoi she travelled directly to the United States. In 2012, Ta Phong Tan was
sentenced to ten years of imprisonment and five years of house arrest for “propaganda against the state”. She had written online about topics such as widespread corruption.
Together with its partners from the EU and other countries, the German Government had been working to achieve her release for a long time. In an expert report, the United Nations Working Group on
Arbitrary Detention had classed the incarceration of Ta Phong Tan as “arbitrary”.
In the past year, two human rights defenders have already been released from prison under similar circumstances (Mr Cu Huy Ha VU and Mr Dieu Cay). In both cases the sentence was simply suspended.
They had to promise to travel to the US immediately. That means that, de facto, returning to Viet Nam is not an option as they would have to serve the remainder of their sentence.
==== ==== ==== ==== ==== ==== ==== ==== ==== ====
Website of the Federal Foreign Office: www.auswaertiges-amt.de/EN
Follow us on twitter: www.twitter.com/GermanyDiplo
To unsubscribe the newsletter please click the following link:
http://www.diplo.de/unsubscribe
Corporations and Human Rights
In the prior post I included investopedia links to the BALANCE SHEET and INCOME STATEMENT. Read and try to figure it out! It is $.
Corporations and Human Rights
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1020517
Key U.S. rules on international corruption & HR abuse
FCPA
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1020457
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1702470
ATS
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1020512
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1708514
TVPA
Extraterritoriality
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1727331
Domestic Rules
RICO
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2069636
SEA
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1125642
Ways a corporate leader can get in trouble with human rights:
Fraud (tax evasion, insider trading)
Bribery
Abuse of workers
Thinking they can “game the system” and use clever legal structures to mask human rights abuse.
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1655983
Judges have them “six ways to sunday” but prosecutors dont, so I write.
http://bjil.typepad.com/publicist/2011/05/extradite-or-prosecute-belgium-v-senegal.html
Criminal, Tort, Contract, and Corporate law as solutions to human rights?
To present, we have seen the few possibilities and real limits of the international public law of human rights. While the public law regime is clearly imperfect, it is so much better than the pre-war system of non-rights.
The last aspect of public law we look at, briefly, is criminal law remedies. However, because criminal law and tort law often overlap we will use the criminal law regime as a transition to looking at the tort law regime. We will then look at corporate governance aspects of human rights, including contractual aspects.
I have tried to point out the possibilities for human rights activism. One essential aspect of HR activism is fundraising. Fundraising occurs through:
tabling with literature and asking for signatures and contributions
concerts and artistic performances
but activists can also raise funds with gofundme.com and similar online capital magnets.
Another way to raise money is through buying and selling stocks and using one’s own funds. This also raises an important aspect of corporate law: finance and accounting. Those of you who wish to closely inspect the corporation, whether as potential investor or searching for “dodgy accounting” should learn how to read and analyze an income statement
http://www.investopedia.com/articles/04/022504.asp
and the corporation balance sheet.
http://www.investopedia.com/articles/04/031004.asp
Corporations publish their balance sheets as part of their mandatory annual report. Income statements are usually also provided in the annual report.
I have already mentioned the international criminal court:
https://www.nlg.org/resource/nlg-review/volume-71-no-1
The US Foreign Corrupt Practices Act
http://www.justice.gov/criminal-fraud/foreign-corrupt-practices-act
The UK Antibribery Act
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1702470
The OECD Antibribery Convention
http://www.oecd.org/corruption/oecdantibriberyconvention.htm
The UN Convention against Corruption
https://www.unodc.org/unodc/en/treaties/CAC/
Which basically reproduce the FCPA internationally.
An important point is that criminal laws sometimes create private remedies. That is the case of the US Racketeer influenced and Corrupt Organizations Act
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1020470
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2069636
The Securities and Exchange Acts
As well as the Alien Tort Statute and Torture Victims Protection Act
After exposing the criminal and tort regime we will look to contract and corporate governance (self regulation and soft-law).
We can discuss methodology for your papers after the lecture, we have just 3 lessons for a large amount of material.
Regarding the simulations: Objectives included
a) placing yourself into another role than the one which you are accustomed to – seeing the world through others’ eyes.
b) learning group dynamics of conflict and conflict resolution.
c) understanding how discrete conflicting interests aggregate into social outcomes which may or may not be socially beneficial.
d) why and how states fail.
e) conflicting and competing pressures within and between states.
f) viewing conflict and conflict resolution objectively from a multifaceted perspective rather than subjectively from on’s own individual perspective.
g) exposing you to new and unexpected situations, so you learn to think flexibly
E.g. in the last simulation I specifically gave each player an objective which was necessarily in conflict with other players objectives. Real life is like that sometimes, but only exceptionally. International human rights law seeks to reduce such conflicts and replace them with better interactions.
Good training is hard because it is challenging and provokes growth, preparing one for real life.
Why do states (or for that matter people) obey law?
-Self enforcement
-Expectations of behavior of other actors.
-Expectations of results of behavior
-DeterrenceHow many times were U.S. and Russian forces in direct conflict in the cold war?
-Self enforcement
-Expectations of behavior of other actors.
-Expectations of results of behavior
-DeterrenceHow many times were U.S. and Russian forces in direct conflict in the cold war?
Trade and Human Rights
WTO
DSU / DSB
Tying treaties to human rights compliance
FCPA
Anti-bribery convention
UK Anti bribery Act
ATS
TVPA
Actio Popularis
Action Civil
ICC
Rome Statute
Corporate Compliance
“triple bottom line” accounting
Syria 10 Airstrikes 100 Army Battalions (Bn) $1000 1 CW
U.S. 100 Airstrikes 10 Marine Bns $10000
Russia 20 Airstrikes 3 Naval Infantry Bns $2500
Israel 50 Airstrikes 250 Bns $2000
Moderate Rebels 10 Bns $100
Kurds 25 Bns $100
Extremist Rebels 100 Bns $20
ISIS 100 Bns $10
Saudi Arabia $5000
EU $1000
UN $200
Amnesty $10
Iran 500 Bns $1000 1 CW
Iraq 200 Bns $500
Declare attack
Declare Airstrikes
Airstrikes – Airstrikes
Commit battalions
(Airstrikes times battalions)-(battalions)
Attacks cost 10 dollars in total=casulaties for both
Terrorism
Costs ten dollars to launch, removes 100 dollars from target
Intervention costs $200: with intervention battalions can join in attacks and defenses.
A successful attack captures 100 square kilometers of enemy territory
Territory
Syria 1000 Sq. km.
FSA 10 Sq. km.
ISIS 10 Sq. km.
Kurds 10 Sq. km.
Russia 1 Sq. km.
No one else has territory.
An attack may take 1 sq. km but then the attacker loses three times the losses he would ordinarily suffer.
If Syria eliminates all other parties holding territory then Syria wins. If Syria loses all territory then Syria loses.
U.S. 100 Airstrikes 10 Marine Bns $10000
Russia 20 Airstrikes 3 Naval Infantry Bns $2500
Israel 50 Airstrikes 250 Bns $2000
Moderate Rebels 10 Bns $100
Kurds 25 Bns $100
Extremist Rebels 100 Bns $20
ISIS 100 Bns $10
Saudi Arabia $5000
EU $1000
UN $200
Amnesty $10
Iran 500 Bns $1000 1 CW
Iraq 200 Bns $500
Declare attack
Declare Airstrikes
Airstrikes – Airstrikes
Commit battalions
(Airstrikes times battalions)-(battalions)
Attacks cost 10 dollars in total=casulaties for both
Terrorism
Costs ten dollars to launch, removes 100 dollars from target
Intervention costs $200: with intervention battalions can join in attacks and defenses.
A successful attack captures 100 square kilometers of enemy territory
Territory
Syria 1000 Sq. km.
FSA 10 Sq. km.
ISIS 10 Sq. km.
Kurds 10 Sq. km.
Russia 1 Sq. km.
No one else has territory.
An attack may take 1 sq. km but then the attacker loses three times the losses he would ordinarily suffer.
If Syria eliminates all other parties holding territory then Syria wins. If Syria loses all territory then Syria loses.
There are 1000 Syrians living under Assad, 100 living under ISIS and 100 living under FSA. They may flee or be targeted like a battalion and the referee decides if and where they flee too.
If refugees flee the referee may impose a fine on the country they flee to.
Supplementary Readings
Because there are many of you and many readings I assigne a reading to each of you in this post, plus the readings in the 2 earlier posts below.
http://www.aljazeera.com/indepth/opinion/2015/09/syria-putin-afghanistan-isil-obama-150913084815882.html
Lara ^
http://www.aljazeera.com/indepth/opinion/2015/09/syria-putin-afghanistan-isil-obama-150913084815882.html
Lara ^
Randall
http://www.bbc.co.uk/news/world-middle-east-24403003
Patrick,
http://www.aljazeera.com/topics/country/syria.html
Becky
http://www.theguardian.com/world/syria
Ben
http://www.bbc.co.uk/news/world-middle-east-26116868
Those who do not have specific articles can be assigned articles by Mike, Patrick, Randall, Becky, and have other things to read as well. Some of the links, notably on Patricks and Randalls pages have several articles. Help them out please to analyze this mass of information. Thank you.
Readings Syria
http://thediplomat.com/2014/09/how-the-us-made-isis-a-threat/
http://thediplomat.com/2014/02/responsibility-to-protect-cant-save-syria/ http://www.theatlantic.com/international/archive/2013/09/beyond-airstrikes-on-syria-ask-what-would-the-godfather-do/279457/
http://nationalinterest.org/commentary/interview-graham-allison-9201
http://nationalinterest.org/commentary/brzezinski-the-syria-crisis-8636
http://projects.nytimes.com/live-dashboard/syria
http://thediplomat.com/2014/05/chinas-instructive-syria-policy/
http://www.cracked.com/personal-experiences-1780-we-built-their-death-squads-isiss-bizarre-origin-story_p2.html
Laws
https://www.opcw.org/chemical-weapons-convention/articles/
https://www.icrc.org/customary-ihl/eng/docs/v1_cha_chapter24_rule74
Videos
https://www.youtube.com/watch?v=9uHXUe8VsBg
Leaders are readers. This may seem like a lot, but it beats digging ditches. Feel free to split up the readings amongst yourselves and make one person responsible for one reading, and for providing a summary of the reading to everyone else.
p.s. readings on ISIS / ISIL will follow, and then foreign language materials.
Syria
For the Syria scenario please google “eric engle” “syria” and read everything that
http://papers.ssrn.com/author_id=879868
http://papers.ssrn.com/author_id=879868
Humanitarian Intervention and Syria: Russia, the United …
ssrn.com/abstract=2115191
by E Engle – 2012 – Related articles
22 Jul 2012 – Engle, Eric, Humanitarian Intervention and Syria: Russia, the United States, and International Law (July 22, 2012). 18 Barry Law Review 1 …
Pacific Blockade of Syria by Eric Engle :: SSRN
ssrn.com/abstract=2140325
Methodological advice about writing your papers.
How and Why to Publish Articles about the Law
Eric Engle
Lawyers have a responsibility to work for the general public good (pro bono publico). The law is constantly evolving. The evolution of law occurs in part through legal commentary. Furthermore, legal scholarship is a source of international law and persuasive evidence of the law in most civilianist legal systems. Finally, publishing your work is a professional credential. It is a way to make your mark on the law. A way to attract attention to your practice.
1. How to Write Your Article: Structure and Discipline.
Good writing is a discipline. The law review article seeks to present and prove a thesis. This requires a clear cogent thesis statement. It also requires a structured argument to support the thesis. This structure will normally be an outline which will be reflected in the table of contents of the article. The article’s points of law, especially those which are controversial, must be footnoted. Footnotes, whether to legislation, cases, or commentary are the scientific foundation of your work. And this is the basic process of writing. First, develop a thesis statement. This is your hypothesis. Then, research the law, to find and form the footnotes you will use. You may then modify your hypothesis which now becomes your thesis statement. You then form an outline of the structured arguments you will use to prove your thesis. You then place the tentative footnotes into the outline. Essentially, one writes the article into the outline, around the footnotes to prove the thesis statement. Footnotes should be formed according to the ALWD, the Blue Book, or the Oscola style.
This process of writing may seem simple. However, writing takes discipline. Finding and forming footnotes is indispensable. As to one’s own writing: edit! edit! edit! edit! Outline ten times, write once. But then, reread, rewrite, reread, rewrite. Editing seeks to express ideas clearly and quickly. The reader should consult style guides like Strunk and White’s Elements of Style. Canons like: “Omit needless words.” “Avoid the passive voice.” “Use short sentences.” should be burnt in every writers brain. Good writers use literary devices. However, literary devices are not necessary and may detract from your writing if badly used.
After you have written your article you should show it to your friends. They may point out things that seem clear to you which might not be clear to another reader.
2. Submitting Your Monsterpiece?
It Better Be a Masterpiece! No One Has Time to Waste!
Once you’ve written your article you must submit it for publication. Just like there’s a method for writing, there is also a method for publishing.
First, you need to figure out where you want to submit to. There are two types of journals. Some journals, usually better ranked European ones, insist on “exclusive submission”. They only consider your article if you promise not to submit it elsewhere while they consider it. They usually take about two months to review your article. They may reject your article outright, or will return it with comments and ask for revisions and resubmission.
U.S. journals are generally not exclusive submit. That means your article can be under consideration at more than one law review at a time. However U.S. law reviews have two submission seasons. September and March. I mass submit at those times and then individual submit in the other months.
When you feel your paper is “as good as you can make it” you must send it to journals. Your cover letter may well be the only thing the journal actually reads. In fact, the subject line of your email may be the only thing the journal reads. It has to be perfect. A good subject line might be: SUBMISSION – “The Law and Economics of Mergers and Acquisitions in Russia”. The journal knows this is a submission, and even knows the title of your article. Your title, just like the subject line of that email, must be perfect.
I repeat the TITLE of your article is the ONLY thing you are sure your reader will read. It has to be perfect. Likewise, your first paragraph must also be perfect for the same reason. You should focus especially on the first three pages and last page of your article. It must be *perfect*.
You also need a cover letter. Your cover letter should describe who you are, and what you want. You are a lawyer. You want to publish your article about ___. Be friendly and courteous to your editors. Be clear that you will be happy to edit your article and that you will provide footnotes, substantive or stylistic editing as the editors require.
Your cover letter should include an *abstract* of the article. An abstract presents a summary of the article. Your cover letter should also include your c.v. Include your c.v. and abstract both inline and as an attachment.
Essentially editors have little time and no interest to edit your half-done work. You should be sending them an article “ready to be published” — not something half baked. And your cover letter should look perfectly professional — because that is all they may bother to look at.
3. Where to Send your Article
There are numerous lists of email addresses for submission. See, e.g.,
LexOpus — free online submission manager.
(for preprints and working papers)
Some of the law reviews which are not listed on lexopus, but addresses may be out of date.
Like you can see there are literally hundreds of law reviews. Select those journals most relevant for your article.
4. Publication offer! Then What?
Your publisher will make a publication offer and may ask you to sign a contract giving them copyright. You should have no illusions about making money from writing about law. However you should insist on keeping the right to reproduce your article after an embargo of a year for the academic publishers. Kluwer, Springer and similar for-profit publishers will insist on a permanent embargo. They are reputable enough you should publish with them anyway. If you really hate a term in the contract you can try to negotiate it: “I’m ok giving you exclusive copyright for an embargo of 1 year, but want the right to republish it myself in the book I am planning” – for example.
When your article gets offered publication you should in my opinion simply accept and then go write something else. But you should also write all the other journals you asked to look at your work and tell them that your article is off the market. Some authors try to “expedite” their article to get it placed in a better ranked journal. I find that unseemly. I like having a good reputation, but then I write and publish very often.
If you wish to try to figure out how to “expedite” your article ask Professor Google 😉
In all events love whatever you write and
Good luck!
——————–
Suggested methodologies:
1) Problématique: The student must begin with a question which they seek to answer. The research then answers the question and/or leads to other questions… Better for an academic setting than practice but a veryuseful perspective nonetheless.
2) Case history: The student takes a case which they are interested in and traces the cases history and development. This is very straightforward but produces a useful product especially for legal practitioners.
3) Comparative approach: The student takes a legal concept which interests them, and traces the concepts development in two different countries. Ideally the student then synthesizes and concludes what would be a better system than either. Can be good for practice and is good for academic work. Done properly it is very scientific. Done poorly it is wishy-washy.
4) Critique: The student analyses a given law: to determine its weak points. A good method for cynics and nihilists: Rather than seeking to prove something this method seeks to disprove another thing.
5) Polemic: This is the opposite of problématique. Rather than seeking to answer a question the student seeks to prove a hypothesis. This is better for practice than academics since polemical work tends to be less objective but polemic teaches students to organize and direct their thoughts. On the other hand if legal science is a science then it posits facts about law – so polemic has always been able to claim to be scientific – at least in its better forms…
Naturally students may mix these methods. They are in all events only “suggested approaches”.
Executive Ministries:
· Executive Ministers form the executive arm, collectively.
· This body sets overall political agenda of government.
· They vote on executive matters on a 1-1 ratio, majority vote wins
o Executive matters include, but are not limited to: National security, constitutional amendments, matters that involve more than one of the executive ministries,
· Has ability to veto Parliamentary legislation by majority vote
o *2/3 supporters vote can override executive veto
1. Ministry of the Interior – Ben
· Has jurisdiction over matters of national governance
2. Ministry of Justice – Patrick
· Has jurisdiction over matters of national courts and constitutional interpretation
3. Ministry of Finance – Hope
· Has jurisdiction over matters of national finances
4. Ministry of Foreign Affairs – Becky
· Has jurisdiction over matters of international relations
5. Ministry of Peace and Security – Mike
· Has jurisdiction over armed forces and intelligence agencies (but can only mobilize cannons upon unanimous executive approval and 2/3 parliamentary vote)
Departmental Ministries:
· Departmental Ministries are policy experts in their fields.
· Department Ministers can utilize the Parliament to send agendas to the executive for a vote, or call a vote to veto an executive decision.
Ministry of the Interior
· Department of Labor – Randy
o Has jurisdiction over matter of national labor and works with interior to advocate on behalf of laborers
· Department of Education – Sarah
o Has jurisdiction over matters of the educational system and works with interior to strengthen educational system
· Department of Transportation – Laurel
o Has jurisdiction over matters of transportation and works with interior to build infrastructure
Ministry of Finance
· Department of Trade – Luis
Ministry of Justice
· Department of Non-Discrimination and Equal Protection – Martina
· Department of Human Rights – Lara (Ex-Oficcio)???
Parliament:
· Democratically represented based on supporters
· Used as a democratic structure to veto executive and/or ministry decisions
o Needs 2/3 of supporter votes to veto
· In the event of an executive tie parliament can break tie
o Needs 2/3 of supporter votes to break tie
· Can be used to bring agenda to executive/ministry/department
o Need 51 percent of supporter votes
· Used as a means to approve/disapprove ministerial/departmental placements in first instance of government
o 51 percent of supporter votes needed to approve/disapprove
Law of War and Human Rights
State power is the use of force to limit the use of force.
The law of war is one part of public international law:
it has two parts – jus ad bellum, which is the right to go to war
and jus in bello, which is the rights of armed conflict.
Jus in bello applies both to insurgents and official forces, though to enjoy the rights of jus in bello one must wear marking insignia, to indicate that one is in armed conflict.
One rule of jus in bello is that you must use only force which is necessary and proportioned to eliminate the threat.
Retorsions are lawful unfriendly acts. Sanctions are a kind of retorsion.
Reprisals are unlawful acts, which are however justified as self-help to remedy a greater unlawful act. The reprisal would be illegal were it not for the wrongful act which it seeks to remedy.
Two wrongs can make a right in international law!
Two treaties we have not yet mentioned:
Convention against Torture.
Genocide Convention
Law of war was first codified in the Hague conventions and then in the Geneva conventions.
The Hague conventions are considered customary international law since about 1950.
A more recent term for the law of armed conflict is international humanitarian law. There is some overlap between IHL and international human rights law, or at least they are often closely related.
OMG! CIVIL WAR IN DYSTOPIA!
Each of you, except for Lara, now has 1100 hostages. Namely, 100 hostages for each player.
Hostages represent not just hostages but also neighbors, people living in villages close to other nations etc.
Hope now represents the IMF. Each player owes the IMF 1000 coins. Hope can refinance or collect on your loan. She can also loan up to 10000 coins.
Combat actions now include
Reprisal Massacres
http://www.crimesofwar.org/a-z-guide/reprisal-killings/
Mass rape
http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1016&context=lcp
Forced Recruiting
Deportation
https://www.icrc.org/applic/ihl/ihl.nsf/Article.xsp?action=openDocument&documentId=77068F12B8857C4DC12563CD0051BDB0
Ethnic Cleansing
https://treaties.un.org/Pages/showDetails.aspx?objid=0800000280027fac
Torture http://www.hrweb.org/legal/cat.html
Human shields
https://web.archive.org/web/20150717071923/https://www.icrc.org/customary-ihl/eng/docs/v1_cha_chapter32_rule97
Abduction and Adoption of the Kidnapped
http://www.ohchr.org/EN/ProfessionalInterest/Pages/CRC.aspx
Child soldiers
Article 38, CRC. Article 8(2)(b)(xxvi) of the Rome Statute of the International Criminal Court
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2318403
Please read these materials I will give a lecture on them.
Essay Questions on the Bar Exam
On the bar exam you will be given essay questions, much like the essays you have been writing for your law school exams. The test is seeking to see if you can spot legal issues and then structure coherent compelling arguments to answer those issues. To do so you will need to have learned hundreds (not thousands!) of rules.
One problem bar examinees have is panic. Lack of proper training, believing the bar to be “impossible” are two usual causes of panic. Panic causes examinees to either stare blankly, scared to write, or write rapid unstructured and ill considered ideas.
Panic is prevented by learning the law thoroughly and practicing for the exam.
You learn the law thoroughly best by understanding the reasons the legal rule is what it is. For example, we should know that the good faith purchaser of property for value without notice of defective title has good title against all the world except true owner, which seems logical. Since the good faith purchaser did not know the goods were stolen he is not a criminal. And to protect and preserve property it makes sense that the good faith owner of stolen goods ought to be presumed to have a relative mastery over those goods against all save their true owner, for the true owner may be dead or absent or even unaware that the goods were stolen.
We should also know that the good faith purchaser of a negotiable instrument without notice of a flawed title has good title against all the world, even against true owner, and this is a property right which vests on transfer – a right in rem. This is not a contractual right in personam which might be defeasible. That is, only “real” and not “personal” defences may be interposed against the good faith purchaser of negotiable instruments such as a promissory note or check.
Obviously, this requires us to know a lot of technical legal vocabulary. It is a lack of knowledge of this vocabulary which stops students from learning the rules. Focus on learning the rule “by heart” rather than understanding the reason for the rule which keeps the student from seeing all the nuances just summed up in the preceding paragraph.
You must know what “real” “personal” and “negotiable” and “in rem” and “in personam” mean
seems strange to new law students. If you do not then look them up. Whenever you meet a new term in law you must look it up otherwise you will not be able to learn the rule. Law is pains-taking but easy, it is not rocket science but does demand persistent study.
So: WHY does the law permit the good faith purchaser of commercial paper to take title good against all the world, even true owner? This counterintuitive rule exists to foster commercial transactions. Imagine what the business world would look like if this were not the rule. Claims would be made against buyers of propert for contractual breaches of which they were not party and know nothing about. Litigation would increase, and commercial trading would decrease to the impoverishment of all.
Without knowing the vocabulary you could not see all the issues lurking in a question which looks easy. Without understanding the reason for the rule you are less likely to even remember the rule, let alone to apply it properly.
Essay questions are all about
1) Spotting the Issue
2) Weaving Facts
3) Into Law
4) To reach a conclusion.
Keys to avoiding panic
1) If you don’t know the rule — make one up. You can score some points with an incorrect rule, but no points with no rule at all. Furthermore, the rule you make up is likely the correct rule, you just don’t remember it with perfect certainty.
2) Argue in the alternative: “but if I am wrong”, “but if the court disagrees with me”. This tactic must be used sparingly and really only as a “backstop”. Otherwise you would never run out of issues to argue and it would make your essay look like it was written by someone who does not know the law.
3) Know the vocabulary. Knowing vocabulary increases your confidence, makes it easier to discuss the law, and shows the examiners you likely know the law.
4) Know the reasons for the rules, not just what the rule is, because in a hard case we are not only arguing about whether these facts applied to that rule reach this outcome; we are also arguing about what the rule should be, that is we are arguing about whether to apply one of several competing rules. Fortunately for examinees, the bar currently does not focus on the abstruse arcane questions of which rule to apply, limiting its examination to the concrete questions of certain facts applied to settled laws.
In other words: yes YOU Can pass the bar!
Secrecy Rules:
Assassinations and terrorist attacks may be launched anonymously. In that phase you write out the attack. Note: there may be players with spy capabilities.
Phases in sequential order:
Swaps
Assassination (may be anonymous)
Terrorist attacks (may be anonymous)
Declare any civil war
Foreign Intervention
Votes
I have emailed you your (new?) abilities and agendas. I am still at the classroom if any of you have questions or want to see me.
http://crypto.interactive-maths.com/kasiski-analysis-breaking-the-code.html
http://www.braingle.com/brainteasers/codes/onetimepad.php
http://rumkin.com/tools/cipher/vigenere.php
key recovery
kasiskis
frequency analysis
known plain text attack
known plain text attack is your best method to key recovery on these two ciphers.
Special Abilities
Qslw zwh yfdf bbn qqrshegwaeff cjgaarjfnebj ku yzy Qaecai Fupvkwo bzcyu sxqqv lafqup nf bae cjesahc 500 pkrjx. Zisrrnn, kgl pua DJ yg cjgaarjfy avpqaw sfh ckueyawwy ljnyayo zqbp fylar, ka pmw OO njm Nzkmen idoy sanra. Uwws gwl oceqd ndjwap zh nk 5 nobwxahwgexj flnazlco!
Xslwu yjj hghrrnc ozhjkepnnx ahpb yjom gl ynoq esli ohlykwlynf wc w wsna bb 1 okw 1. Kunndj yff wwyh okw zoinjrpfjcwa ewpjjpaaprks sn pua lkxl ib 500 pkrjx, obepd feqd nnvcpaw s bqzwweyslenj rjywlrrjcetf vu gdn Q.X. gl bbn 1000 lknfm sueld bafh gnrclwl dhijjnlunvww eslyniawpngh xl Cnnrshu. Vj neyzyn pwba yzy eapnnawheac lkzfnnl srhq lbaa lakaaxa 100 pkrjx shz 100 pwwjtfm pb Ojnfz ujq 500 yxesk ujq 500 yjjsgho gk fdteyrrn Bwwsb yukxojk.
Lwazh yff vql yjjsgho np 500 lknfm lrn lwsfij. Ewwzd uuj ywdjhz naenxnnkn wgpjypk up ak lkxlm.
Lnpaehc wwa hjqsub prnakwamp npcwhcm wg jx ytkn.
Xrj lws kjaaz lknfm ka nnojslyu wwz iwpaykyijfn. Bbn nwhz 100 wkvjb dj kjaazb dnk lazwrjnfa ybewo fjy eayaafkyz ou 1%.
Vepw wwa yxjawlp pkrjx ahpb odluglprnb: 100 ytaho = 1 aaf ozhjkepnn.
Xslwu yjj iwwhnnn ws slpvoceh swpvkw wsv cickba f 100 uiea pjt tf ujl luwdwl waz “bpjsf” 100 ks pqwy hfwlaao xmjlbncawk.
Ndr irjnknnl ko btjyetj jbkscnf: bxn jswd 100 pwwjtfm Xrytu xhyjqo, bdj uuj bxcwnf 500 wkvjb kk ulaqec bwgg pua Djnlyz Fpjpjk vqg kwhd mj pb 3500 ew ytaho jeuh gw mk pnnznlyz.
Yqro hsh xhu bquhingaao kjii njh lqssae wc pmw wkfp xb 10 hgcjf bxn 1 xmjlbncaw
Duqeau yff xaphjnj s nnnjbey knnvgn wsv lazkea 100 hgcjf bakr shu chjujj. Fwhnnh igyo akc cjl ndr yxesk, ndru jnj jyibrnz kjii chju.
Mgja uwb lqsho ska ws snkzel xtev xhp wk udopbjrqr gl aanrymwx qewweze. Mdr yjj mgqaiaa kgluea awkzyb aanrymwx qewweze vu flnjiahc 10000 pkrjx shz 1000 pwwjtfm. Jhyuafj vkzxb ifq va honz yg uofwbonfupr w yhfqyn njm ifq hkg xn pmoungam. Pmws inu jhxg va honz yg mpbl j btjyetj rjywlrrjcetf, wkfprjl lba vjcawnyjvjp ltoyn 5000 pkrjx shz 5000 pwwjtfm. Qfa xb smwhrwa sjsjkao vwd lletcnn f xinrepj nfnaernjyaij.
Zwapnfu ynj jop shu bjn lqssae, xdp tffu bjn lqssae, sqwy lbavn bljucwy wkeqanu bn qeivyj ncnjis co, oqc jtl vkgd. Vwwlcjn yjj xlywy 500 yxesk znbi jjd hfwlaa afub nbqwz.
Iwjwepvasl ib Fpjpj euu gdfwwl ijyu 5 cawjinvoc wyluyxo fdnub pnnpay hynfkwo ffx svhu jtl ndjwap ywlnbnroy snpnyto bzcyu pjnlwn ybewo.
New(?) Hidden Agendas
To attack a vigenere cipher you need to figure out the key length and then the key. This is done by searching the cipher text for strings which repeat. Several repeated sequences of a vigenere cipher indicate the same portion of the cipher key and will likely correspond to high frequency English langage text sequences such as “the”, “and”. This is simple vigenere, Not keyed vigenere.
HIDDEN AGENDAS.
Ld Dtfp koqtagqta tzm htfiqev rg ycgu a fmsewiqoq egosgvmhll xorp
pdplr utbs 200 hvlko hcpsmjmsga aqb Dtfp oewq 100 kndewrwcjl ocl
100 crgfl.
Gpzak ualvta tr njxjtvt imjxwvv iqrwkjtvtlmf. Bt p noucazb ewwhp
aghtzvhlwl Gpzak jglsh 500 ausngkhtzs dlv 1000 vcxvs.
Uyfwm lqskck mc hbaur zbg den dper. Tdz edaz liexourwk ocl crgf as
pkqxgjxg wm aoqg zsia a ipwx qpvnrl. Jtbsg swgde kxahhq lh pjqlg
fal zpjou sfbcc qn imjxwvv crsfmfxms. Ld s ycgmijl uhicbrb
gfmsgdeqck tbs pe kyk gc jvirl lasgm aoj zbg hcpsmjmsga auc
uhbkmrwcv bbiw cdlfhbh ing fal giwcn mx vocvoqq al hwmn gmmuztl.
Ii fw aoh i ldzgk icqoq gf mvpb crsfmfn bhhl zx upqnv 250 qmiddzthpk tbs 500 kaqlggg.
Eitugud kxahhq lh gtm Rxqkbo xvthpnxbt ing lsfs Eitugud qwqei mx lhpbe. Ld Jnghqa lllxfkmnhq gosgblb Nsmfxkk jyaggi 5000 kollk 1000 vocvoqq tnh awshq 100 kndewrwcjl.
Vdxe zyfmg iw wrpc pwip tkc ykstvs rl kvwtvtldav ftaedpua. Wu bhh
ejxsca gltw Acem 1000 sxnhhfimrv mj 1000 vcxvs wfwg hwm gucwgg
wivh zwxb rwosrww ocl mdw ggzn mnwcj bbiw a fmsewiqoq egosgvmhll
pwip tkc fthxwndj ebbdziww htfig aqb hthgqcn esbbh in dbvbhxwndj
5000 uhwca dxc lh o gmshyjvv qzedilafdcgk.
Kads linwq lh dgmvhll t tdzelef bbimrycfmwdv ou y ubjxt wdp. Ag
spkh ummgr lpeuc lasgm iv lg ycgmijl aghtzvhllbcc pe jyagg 100
hcpsmjmsga aqb 100 uhwca. Iq csvv gwuqb oasgm tkcjx wh vo fgnbz
lir kc ytwca 100 sxnhhfimrv yfw 100 qdqnv. Gf xorp rrsfw kwmrh
rzxft qs qm lxfgwrlqe as viiqq 10 uhwca.
Bhacr kpvtv rg ksbiiq kagwhbeu mx ycgmijl sytpqrv. Dgk spkh syjmm lpiff hkcbqshq zxf iw bh lsfss uiqgkmsg wf imjxwvv aidsbfh ahh esbbh 500 kollk. Lvt uab ydlc eiy dlq iogb 1000 crgfl hd nouaw bh iw ndkw asg noucazb bqnlqlxf.
Hirdf otbia tr zw gobmd d sfbjtzslrq ifdnevqgk. Gwm mdw tx vxzeg yk lirp bb rzx axvivrwk cu mdxasmwdv (Hrnw). Bt wqrhb kas viiqq 1000 uhwca aqb 1000 kndewrwcjl pjb tkc ebbxatuw gy tdzelef ttuiiuq
dhgta 500 crgfl ocl 500 sxnhhfimrv.
Rzx axvivrjr cu noucazb pnfdgjl kpvtv rg ifddonc s N.G.
xvthpnxbiqoq. Gx mvt C.S. lllxfkmnhq Txqzg gdgfl 1000 qdqnv yfw 1000
gjxprplxfh.
Tulq otbia aqw xhftqgq gfmsgdeqrahb hw hh asg gttl pmjx tdwd.
Hyua tdzelef bbimrycfmwdv wljd zwkm Lxgk 500 vcxvs.
Oymksa eaqrk mc pdolb s ycgmijl aghtzvhllbcc jefymls xb wrsdw hxm
us rzx hginvgl gsi ing ksds xb ipnglgxjlh rg lhgqkh. Gf xorp rrsfw
hwmrh gk gc xvthpnxbiqoq qzx upqnv 100 agbbh.
Posc otbia aq ylhaxk brkt tbs qf vfw zsia oqc yxhh 100 kollk tbs
100 ausngkhtzs dlv 1 vocvoq. Yf thduif zgfp biy ec mlss bo hglasg mllkagoim oqc heonmr rp lh giwp d dgksxon lllxfkmnwggg pjb mdw hkckwkh y xhftqgq gfmsgdeqrahb.
Birwgft kpvtv rg tjdqd dlq bbimrycfmwdv. Ii yfr qdcnwpq
bbimrycfxg hpe omkxg 500 hcpsmjmsga aqb 500 uhwca.
Dhnskhbmnw mx Lhpbe zyfmg iw sksl mvt Cnlrww Tgmegme Iogby rsl ht
ewwhp. Am apg guyfm 100 qdqnv rg tbn wtkcj icaqtlase dpztb csvv
gwuqb. Lawh ordll bg cwt fmflwsmrhb aghtzvhllbcc. Bhh Sfbhtl Swylxg hbioj otbia tr ynhws qnwcjoscqnj. Rg bbimrycfx
qdatv rzx I.H. 5000 kollk.
Tghisllsmwdvs fmkm 1 qpvnrl.
Cryptography primer.
To attack a vigenere cipher you need to figure out the key length and then the key. This is done by searching the cipher text for strings which repeat. Several repeated sequences of a vigenere cipher indicate the same portion of the cipher key and will likely correspond to high frequency English langage text sequences such as “the”, “and”. This is simple vigenere, Not keyed vigenere.
Mechanics
Between now and Wednesday you may swap resources but may not engage in any armed attacks.
Civil/Intervention war combat mechanics:
To start a civil war costs 1000 supporters. These supporters are “casualties” and are removed from play. Each armed attack costs each side 100 supporters.
A party with cannons may attack another party with cannons.
Each party subtracts a number of cannons as designated by the party with more cannons.
Example: A attacks B. A has 1000 cannons and 1000 supporters. B has 900 cannons. A indicates 900 cannons are to be removed. A now has 100 cannons, B has 0 Cannons.
No civil war may be started untill wednesday.
Armed intervention combat mechanics are the same as civil war combat mechanics.
Starting a civil war may trigger a foreign intervention.
Terrorism: a player may sacrifice 100 cannons and 100 supporters and 100 coins to attack via terrorism. Terrorism may trigger foreign intervention, but is much less likely to do so. The terrorist attack costs the victim 200 supporters and 10 cannons and 10 coins.
The U.S. may not engage in state sponsored terrorism.
Game phases:
Swaps of resources
Assassination attacks
Terrorism attacks
Civil war attacks
Votes
FIRST VOTES:
Greens 500
1000 greens
800 to the greeens
—-
2300
Russia 100 for patrick
100 to patrick
500 to patrick
250 to patrick
—
950
100 for martina
martina 1350
—
1450
1450+950+2300
Civil/Intervention war combat mechanics:
To start a civil war costs 1000 supporters. These supporters are “casualties” and are removed from play. Each armed attack costs each side 100 supporters.
A party with cannons may attack another party with cannons.
Each party subtracts a number of cannons as designated by the party with more cannons.
Example: A attacks B. A has 1000 cannons and 1000 supporters. B has 900 cannons. A indicates 900 cannons are to be removed. A now has 100 cannons, B has 0 Cannons.
No civil war may be started untill wednesday.
Armed intervention combat mechanics are the same as civil war combat mechanics.
Starting a civil war may trigger a foreign intervention.
Terrorism: a player may sacrifice 100 cannons and 100 supporters and 100 coins to attack via terrorism. Terrorism may trigger foreign intervention, but is much less likely to do so. The terrorist attack costs the victim 200 supporters and 10 cannons and 10 coins.
The U.S. may not engage in state sponsored terrorism.
Game phases:
Swaps of resources
Assassination attacks
Terrorism attacks
Civil war attacks
Votes
FIRST VOTES:
Greens 500
1000 greens
800 to the greeens
—-
2300
Russia 100 for patrick
100 to patrick
500 to patrick
250 to patrick
—
950
100 for martina
martina 1350
—
1450
1450+950+2300
search terms: vigenere, key recovery
OQGGIA AMIAGAZ
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Lbpk anqtz br zsek cmgk tom juirny sa vcpmqwmsii vrvehzfk. Ms tni tuelvv jmie Nsch 1000 sbxsrvgexw bu 1000 cvqqv xuet xuh gymhqw uabi oheu krrtgej eag mhg rqpl etxru iubr d gbarmglou oryiensiaw wpbk wlr ngxvrnht plrbroxl saybb drq pgxelcr odlrf at eqgiaqrqey 5000 cumav dbm wr e eeyinuco juhextnvbxgo.
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Yeedh diqww go hi admll d xrvvkvfltf xurjrsyse. Lf Owsh lvrkw uhr aphq Wnrgl thtz 1000 krlrf ath 1000 fxpwwuwies hyg whl ulqmftxc bi fvzhlka aljnlrz trvif 500 cumav aul 500 vxtcoxxrus.
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Seewiui zdrgs zs nyopl d X.W. vnzieyeublrr nnj tervvsh drl ozlru iubhuzrnzmbq. Im bkh Y.F. itxruvlvhv wue rsfhs 500 zcsssetkvf dnk 500 krlrf. Il eab oaphu gbutxeb iubhuzrnkw fke nilqw 500 poorf dnk 500 axstbrziev.
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Aywnviuiwlsas isfw 1 chvqrr.
| HUMA NBCD EFGI JKLO PQRS TVWX YZH | HUMA NBCD EFGI JKLO PQRS TVWX YZ
U | UMAN BCDE FGIJ KLOP QRST VWXY ZH
M | MANB CDEF GIJK LOPQ RSTV WXYZ HU
A | ANBC DEFG IJKL OPQR STVW XYZH UM
N | NBCD EFGI JKLO PQRS TVWX YZHU MA
B | BCDE FGIJ KLOP QRST VWXY ZHUM AN
C | CDEF GIJK LOPQ RSTV WXYZ HUMA NB
D | DEFG IJKL OPQR STVW XYZH UMAN BC
E | EFGI JKLO PQRS TVWX YZHU MANB CD
F | FGIJ KLOP QRST VWXY ZHUM ANBC DE
G | GIJK LOPQ RSTV WXYZ HUMA NBCD EF
I | IJKL OPQR STVW XYZH UMAN BCDE FG
J | JKLO PQRS TVWX YZHU MANB CDEF GI
K | KLOP QRST VWXY ZHUM ANBC DEFG IJ
L | LOPQ RSTV WXYZ HUMA NBCD EFGI JK
O | OPQR STVW XYZH UMAN BCDE FGIJ KL
P | PQRS TVWX YZHU MANB CDEF GIJK LO
Q | QRST VWXY ZHUM ANBC DEFG IJKL OP
R | RSTV WXYZ HUMA NBCD EFGI JKLO PQ
S | STVW XYZH UMAN BCDE FGIJ KLOP QR
T | TVWX YZHU MANB CDEF GIJK LOPQ RS
V | VWXY ZHUM ANBC DEFG IJKL OPQR ST
W | WXYZ HUMA NBCD EFGI JKLO PQRS TV
X | XYZH UMAN BCDE FGIJ KLOP QRST VW
Y | YZHU MANB CDEF GIJK LOPQ RSTV WX
Z | ZHUM ANBC DEFG IJKL OPQR STVW XY
U | UMAN BCDE FGIJ KLOP QRST VWXY ZH
M | MANB CDEF GIJK LOPQ RSTV WXYZ HU
A | ANBC DEFG IJKL OPQR STVW XYZH UM
N | NBCD EFGI JKLO PQRS TVWX YZHU MA
B | BCDE FGIJ KLOP QRST VWXY ZHUM AN
C | CDEF GIJK LOPQ RSTV WXYZ HUMA NB
D | DEFG IJKL OPQR STVW XYZH UMAN BC
E | EFGI JKLO PQRS TVWX YZHU MANB CD
F | FGIJ KLOP QRST VWXY ZHUM ANBC DE
G | GIJK LOPQ RSTV WXYZ HUMA NBCD EF
I | IJKL OPQR STVW XYZH UMAN BCDE FG
J | JKLO PQRS TVWX YZHU MANB CDEF GI
K | KLOP QRST VWXY ZHUM ANBC DEFG IJ
L | LOPQ RSTV WXYZ HUMA NBCD EFGI JK
O | OPQR STVW XYZH UMAN BCDE FGIJ KL
P | PQRS TVWX YZHU MANB CDEF GIJK LO
Q | QRST VWXY ZHUM ANBC DEFG IJKL OP
R | RSTV WXYZ HUMA NBCD EFGI JKLO PQ
S | STVW XYZH UMAN BCDE FGIJ KLOP QR
T | TVWX YZHU MANB CDEF GIJK LOPQ RS
V | VWXY ZHUM ANBC DEFG IJKL OPQR ST
W | WXYZ HUMA NBCD EFGI JKLO PQRS TV
X | XYZH UMAN BCDE FGIJ KLOP QRST VW
Y | YZHU MANB CDEF GIJK LOPQ RSTV WX
Z | ZHUM ANBC DEFG IJKL OPQR STVW XY
Our First Simulation.
Martina – National Minority Party (the former government) 0 Constituents, 1000 coins, 1000 cannons
Luis – Farmers Grange Cooperative Society 200 supporters, 500 coins, 100 cannons
Laurel – Transit Union 100 supporters, 1000 coins
Hope – Chancellor of the former university system 0 supporters, 2000 coins
Lara – Amnesty International 1000 supporters, 100 coins
Mike – Army 1000 supporters, 1000 coins, 1000 cannons
Becky – Foreign Ministry OR U.S. state departments if FM 100, 1000, 100. If DoS 0 supporters 5000 coins 10000 cannons
Sarah – Femen 500 supporters, 500 coins
Ben – Green Party 0 constituents, 1000 coins, 100 cannons
Randy – Mining Union 500 supporters, 2000 coins 100 cannons
Patrick – National Freedom Party 0 constituents, 2000 coins 250 cannons
Goal is to form a government. To form a government you need an absolute majority of supporters OR a coalition. Each party has a hidden agenda. I give those out on Monday ^^
You may trade any resource you have.
You may not use cannons to obtain resources (“war”). Cannons are only useful if
1) A civil war breaks out (which is not this part of the simulation, or necessarily any part)
2) Foreign country intervenes.
Both are possible within this simulation.
3) You may however assassinate a player IF you have cannons BUT if you do then you lose ALL coins and suppporters which are distributed to whomever the victim designates! If you assassinate a player that may or may not cause a civil war or foreign intervention.
The national minority party is 1) a minority of the population. 2) The former government. Hope and Luis are both members of the national minority. Mikes mom is in the national minority and in the national majority. All other players are members of the national majority.
If Martina is assassinated that triggers a foreign intervention by one or more much larger neighboring states (including one where Martinas nation is the national majority).
You “win” by a) surviving and b) forming a government and c) being named to a ministry and d) fulfilling your hidden agenda. Points are scored based on attaining those goals (A-D) and supplemental points are awarded based on how many coins, cannons, or supporters you have.
Each player may “pledge” their supporters to a political party. A political party with the majority of the populace in support may form a government, alone or in coalition with one, and only one, other party.
Luis – Farmers Grange Cooperative Society 200 supporters, 500 coins, 100 cannons
Laurel – Transit Union 100 supporters, 1000 coins
Hope – Chancellor of the former university system 0 supporters, 2000 coins
Lara – Amnesty International 1000 supporters, 100 coins
Mike – Army 1000 supporters, 1000 coins, 1000 cannons
Becky – Foreign Ministry OR U.S. state departments if FM 100, 1000, 100. If DoS 0 supporters 5000 coins 10000 cannons
Sarah – Femen 500 supporters, 500 coins
Ben – Green Party 0 constituents, 1000 coins, 100 cannons
Randy – Mining Union 500 supporters, 2000 coins 100 cannons
Patrick – National Freedom Party 0 constituents, 2000 coins 250 cannons
Goal is to form a government. To form a government you need an absolute majority of supporters OR a coalition. Each party has a hidden agenda. I give those out on Monday ^^
You may trade any resource you have.
You may not use cannons to obtain resources (“war”). Cannons are only useful if
1) A civil war breaks out (which is not this part of the simulation, or necessarily any part)
2) Foreign country intervenes.
Both are possible within this simulation.
3) You may however assassinate a player IF you have cannons BUT if you do then you lose ALL coins and suppporters which are distributed to whomever the victim designates! If you assassinate a player that may or may not cause a civil war or foreign intervention.
The national minority party is 1) a minority of the population. 2) The former government. Hope and Luis are both members of the national minority. Mikes mom is in the national minority and in the national majority. All other players are members of the national majority.
If Martina is assassinated that triggers a foreign intervention by one or more much larger neighboring states (including one where Martinas nation is the national majority).
You “win” by a) surviving and b) forming a government and c) being named to a ministry and d) fulfilling your hidden agenda. Points are scored based on attaining those goals (A-D) and supplemental points are awarded based on how many coins, cannons, or supporters you have.
Each player may “pledge” their supporters to a political party. A political party with the majority of the populace in support may form a government, alone or in coalition with one, and only one, other party.
Protests
What types of protest actions are effective?
http://inthesetimes.com/article/17440/what_makes_protest_movements_explode
https://www.quora.com/Why-are-protests-so-ineffective-for-achieving-political-change
http://www.bbc.com/news/blogs-magazine-monitor-30402637
https://www.youtube.com/watch?v=FFrZfluKDrc
http://mavrixonline.com/wp-content/gallery/20100727_times_square_peta_protest/7_27_10_nearly-nude-peta-protest_778.jpg
http://content.time.com/time/specials/packages/article/0,28804,2080036_2080037_2080049,00.html
http://www.theatlantic.com/photo/2013/04/femen-stages-a-topless-jihad/100487/
http://inthesetimes.com/article/17440/what_makes_protest_movements_explode
https://www.quora.com/Why-are-protests-so-ineffective-for-achieving-political-change
http://www.bbc.com/news/blogs-magazine-monitor-30402637
https://www.youtube.com/watch?v=FFrZfluKDrc
http://mavrixonline.com/wp-content/gallery/20100727_times_square_peta_protest/7_27_10_nearly-nude-peta-protest_778.jpg
http://content.time.com/time/specials/packages/article/0,28804,2080036_2080037_2080049,00.html
http://www.theatlantic.com/photo/2013/04/femen-stages-a-topless-jihad/100487/
What types of protest actions are ineffective?
http://occupywallst.org/
http://www.theatlantic.com/business/archive/2014/01/the-dark-side-of-globalization-why-seattles-1999-protesters-were-right/282831/
The UN Reports System
https://uk.news.yahoo.com/un-set-challenge-uk-welfare-103318657.html
How do sanctions operate?
No academic or cultural exchanges
No tourists
Freeze bank accounts: Exclusion from financial system
Boycott
Embargo
(Aircraft with no spare parts tend to literally crash…)
Non-extradition of criminals
Non-recognition of foreign judgements
Withdrawl of the embassy
Derecognition of the sanctioned state — though individuals are no longer outlawed states can be and sometimes are.
p.s.: when a whole bunch of countries gang up and sanction you get apartheid era rhodesia which we now call Zimbabwe. Ditto South Africa. Sanctions can and do work, depending on the ability to … marshall allies.
Next time: child labor http://www.cracked.com/personal-experiences-1466-5-awful-things-i-learned-as-child-laborer-in-usa.html
Just for fun! Conspiritology
And:
ok I didn’t say to read high quality cannonical literature exclusively
<chortle>
One of the things I learned is the importance of planning and training. Frankly, sometimes state department people get robbed or kidnapped and even killed, and its due to bad training or even no training. So try to ask when reading this “what went wrong, what went right, why did it happen, why will this not happen to me, and what will happen if it does”. Frankly, with good training everything becomes an automatic reflex because you have done it dozens or even hundreds of times before. One doesnt really have time to “think” in a crisis its mostly just “reactions”.
Eselsbrücke: Mnemonic, shortcut.
https://www.youtube.com/watch?v=oZ2OslbC1nw
Frau Deutsch von Bierhaus 😉
Human Rights Activism
Refugees continued:
All those dead refugees are: lost productivity, lost income. So it costs us all.
Developed countries have a self-interest in helping the poor countries develop.
This is why “so what” “who cares” are horrible ideas (but not as horrible as “good, glad they are dead”)
All those dead refugees are: lost productivity, lost income. So it costs us all.
Developed countries have a self-interest in helping the poor countries develop.
This is why “so what” “who cares” are horrible ideas (but not as horrible as “good, glad they are dead”)
https://uk.news.yahoo.com/hungary-allowing-migrants-onto-trains-bound-vienna-germany-102821825.html
https://uk.news.yahoo.com/germany-says-migrants-arriving-hungary-must-register-103116676.html
http://www.latimes.com/world/europe/la-fg-germany-migrants-20150901-story.html
https://uk.news.yahoo.com/india-village-elders-sentenced-sisters-151317532.html
https://uk.news.yahoo.com/protest-sisters-sentenced-raped-031622290.html
What do HR activists do in practice?
1) Raise funds http://www.cracked.com/funny-8767-canvassing/
2) “Educate” “raise awareness” i.e. militate.
3) Influence legislation
4) Influence political decisions
Refugees – Interlocking Crises (War, Poverty, Corruption, Crime) Kill Innocent People
QUESTIONS:
What causes refugees?
What are the possible responses to refugees?
Which Responses are most effective?
Is Germany an example of a success story of refugees? Or is it a story of the failure of multiculturalism? Why?
Refugees are the “flip side” of political exiles. Individual people go into political exile for political reasons, whereas refugees are a mass phenomenon of ordinary people. There is no formal legal framework for political exiles, but there is one for refugees, at least in Germany, and in most first world countries.
Modernity, unlike the pre-modern, tended to see the state in its “ideal” form as a unity of territory, and people, and the people as a unity of language and religion. This was never the case of Germany, unlike France, which is why the story of German unification and state power is so conflicted.
German population in Europe prior to the war:
This doesnt include the Germans living in Estonia or Russia (“Ritterorden” and “Wolgadeutsche” respectively) or the various German settlements in Africa and the Americas.
Volksliste
Refugees in the immediate post-war era.
Art. 116 GG
Art. 14 StagG
Some were forced to flee, because Russia seized their property.
Others (the minority) chose to flee.
Almost all the refugee flows were from East Prussia (Pomerania, what is now western Poland and Russia).
Few fled from West to East.
Mass rapes (now jus cogens)
Child soldiers (now jus cogens)
Current refugee issues:
Example – people fleeing war in Libya and Syria wind up on over-loaded boats, which sink, killing the refugees.
-This is an example of neoconservative regime change not thinking through to the unintended consequences of armed interventions.
-Russia opposed attack on Libya vehemently.
-Russia also strongly opposes attack on Syria.
Example – people fleeing overland in overloaded trucks die of suffocation.
Hungary plans to build a wall between it and Serbia, which provokes more refugees (“now or never”)
Organized crime and political corruption together cause the overloading leading to avoidable deaths.
Germany organizes maritime rescue patrols in the Mediterranean
German law on asylum is
a) really well developed
b) very generous
c) tries to prioritize war refugees over economic refugees
d) tries to prefer well-integrated refugees with good working skills over desperate broken people
-case of the Palestinian crying girl
-backlash: fire-bombing of asylum centers, mostly in former East Germany
-compare to bombings of black churches in current USA
Germany took in 800,000 immigrants this year, second largest on earth, a very very large number.
To present, few refugees from Ukraine, because they can settle in Western Ukraine (or Russia).
EU Blue Card
DISCUSSION:
QUESTIONS:
What causes refugees?
What are the possible responses to refugees?
Which Responses are most effective?
Is Germany an example of a success story of refugees? Or is it a story of the failure of multiculturalism? Why?
VIDEOS
GERMAN LANGUAGE – SLOWLY SPOKEN REPORTS – REFUGEES
https://www.youtube.com/watch?v=FtCVB5dN4Hc
HISTORICAL VIDEOS
Mass_Movement_Of_German_Refugees_Ulm
www.youtube.com/watch?v=sp3ll5ay8ZE
31 Aug 2014 – Uploaded by WWIIPublicDomain
German Refugees (1945)
www.youtube.com/watch?v=AqE_-fvp2Is
13 Apr 2014
Germany / Poland Various shots of crowded train with people hanging from wagons
CURRENT EVENTS:
Asylum – The Life of Refugees in Germany … – YouTube
15 Nov 2014 – Uploaded by DW (English)
Asylum – The Life of Refugees in Germany.
Germany’s Refugee Crisis | The New York Times – YouTube
9 Dec 2014 – Uploaded by The New York Times
More refugees are seeking asylum in Germany than in any other country, straining Germans‘ tolerance
Internships (Praktika), scholarships, volunteer opportunities
I contacted the UNHCR here in Berlin, they will be happy to have us visit.
UNHCR = UN High Commission for Refugees.
They DO offer (unpaid) internships:
http://www.unhcr.de/unhcr/jobs-und-business/praktika.html
You know that State Department offers scholarships for critical needs languages?
http://exchanges.state.gov/us/program/critical-language-scholarship-program
Fulbright offers Teaching English as a Foreign Language scholarship
http://www.cies.org/article/fulbright-tefl-opportunities
CIEE also offers teaching ESL overseas.
So does Peace Corps
http://www.peacecorps.gov/volunteer/learn/whatvol/edu_youth/
ROTC scholarships:
http://www.goarmy.com/rotc/scholarships.html
http://www.nrotc.navy.mil/scholarships.aspx
https://www.afrotc.com/scholarships/
CIA scholarships:
https://www.cia.gov/careers/student-opportunities/undergraduate-scholarship-program.html
CIA Student Internships
https://www.cia.gov/careers/student-opportunities
Please note: for your own safety (and your family’s) do not apply for anything CIA or NSA outside of the continental United States.
NSA does hire linguists but is looking for computer specialists.
https://www.nsa.gov/careers/opportunities_4_u/students/undergraduate/iasp1.shtml
Note also that Peace Corps and CIA are mutually exclusive. Doing one basically makes it impossible for you to do the other.
US Institutes for Peace is not, so far as I know, incompatible with any of the various services.
http://www.usip.org/grants-fellowships
US Aid Internships:
https://www.usaid.gov/work-usaid/careers/student-internships
State Department Internships *ONLY OPEN TO *STUDENTS*! so it is “now or never”.
http://careers.state.gov/intern
UN Volunteers:
http://www.unv.org/how-to-volunteer.html
State Department Volunteers:
http://www.state.gov/m/fsi/tc/79984.htm
DAAD
https://www.daad.org/undergradprograms
Program search engine:
https://www.daad.de/deutschland/studienangebote/studiengang/en/
Study in Germany
https://www.study-in.de/en/index.php
Please note: if you are an unpaid student intern and impoverished you can and should apply for food stamps and get free food from food banks such as red cross, city, county, salvation army. I try to be practical.
Basically you should focus on developing as many useful skills and talents as you can: making yourself useful to other people just about always works. You want to be a technical expert and have good people skills (“soft skills”).
RIGHTS DISCOURSE
A structured argument is much likelier to be persuasive and thus convincing as compared to an unstructured argument. Thus we must structure rights, especially human rights if we wish to convince the court since human rights are very recent and often ambiguous.
STRUCTURING RIGHTS GENERALLY
Presumptions
Burdens of Proof
Hierarchy of Sources of Law (Highest to lowest)
(International law?)
Constitution
(International law?)
Ordinary Federal Legislation
Ordinary State Legislation
Judicial Decisions (Case law) (apply by analogy – my case is just like that case)
Supreme Court
Appeals Court
Trial Court
Interpretation
1. Text – plain meaning
2. Context – grammar, structure, other laws
3. Legislative history
4. Goals of the Law
STRUCTURING HUMAN RIGHTS
Hortatory (Declarations, Resolutions)
Executory
Vested
Political (Vote, strike, assembly, press, speech, petition
Procedural | Substantive
Alienable ($) | Inalienable (Fundamental, Constitutional)
Economic (property, contract, no expropriation)
Basic
(Free movement of
goods, capital, workers, services)
FREEDOMS FROM versus RIGHTS TO
Negative Freedoms From State Power versus Positive Claims to State Resources
RIGHTS TO
Food
Shelter
Clothing
Education
Unemployment
Pensions
(usually by social insurance)
PROCEDURAL RIGHTS
Notice
Hearing
Know Accuser
Know the Accusation
Open Court
Confrontation
Trial by Jury
No Bribery
No Nepotisim
No Torture (unreliable!)
No unreasonable delay
Privacy (no unreasonable search or seizure)
No “corruption of the blood”
No “ex post facto” laws
No “bill of [email protected]
READINGS FOR THE WEKEEND
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1271443
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1268335
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1020464
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1424691
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1434045
Today’s Lecture
What is “jus cogens”?
What rules are “jus cogens”?
What rules are “jus cogens”?
Were there individually enforceable rights or duties under the pre-war system of international law?
Are there individually enforceable rights or duties under the post-war system of international law?
Name the principal international multilateral treaties (=conventions) in the post-war system.
How are legal rights characterized? Name classifications of legal right.
How are human rights characterized? Name classifications of human rights.
Why did individual human rights, and even individually enforceable human rights rise into the international legal system?
Note: these questions are of the sort which I could test you on at the mid-term and final exam!
Learning to learn: pretend you are the prof! Write out model questions and answers as if you were teaching this course. That always got me good grades. 🙂
How to think; Introductory International Law
How to think:
Counterfactual reasoning:
-What if it were NOT the case that X were true? Then what?
Goal oriented reasoning
– what circumstances, if true, would lead to that conclusion?
-Where does this fact lead to?
Counterfactual reasoning:
-What if it were NOT the case that X were true? Then what?
Goal oriented reasoning
– what circumstances, if true, would lead to that conclusion?
-Where does this fact lead to?
Is international law binding law? Why or why not?
Who are the enforcers of international law?
What are the consequences of violating international law?
Compare with domestic law: are domestic law´s perfectly observed at all times and places?
Why do people obey law? Do states obey law? Why or why not?
What is a treaty? A convention?
What are the elements of customary international law?
Functionalism: building peace piece by piece. A step by step incrementalist approach to resolving specific problems, sector by sector, so as to attain objective unbiased neutral expertise without regard to national prejudice.
Examples of Functionalism?
UN
WTO
EU
————————————
What is the rule of law?
Positive definition – what signs are evidence of the presence of the rule of law?
Negative definition – what marks the absence of the rule of law?
Current events: readings
NYT Opinion: “Gay and Marked for Death”
http://www.nytimes.com/2015/08/23/opinion/sunday/frank-bruni-gay-and-marked-for-death.html?smid=fb-nytopinion&smtyp=cur
http://www.nytimes.com/2015/08/23/opinion/sunday/frank-bruni-gay-and-marked-for-death.html?smid=fb-nytopinion&smtyp=cur
Anti-Refugee Riots in Dresden, former East Germany
http://news.yahoo.com/riot-over-refugees-eastern-german-town-leaves-31-143513492.html
Conflict diamonds:
http://www.dw.com/en/un-blacklists-car-diamond-firm-for-illegal-trading/a-18663343
(See also: conflict palm oil)
LGBT Rights and Activism
https://www.jacobinmag.com/2015/08/lgbtq-stonewall-marriage-equality-mattachine-sylvia-rivera/
This web log is where I will put more information. The above article is about LGBT rights and is useful for reflecting on correct political activist strategy (community organizing).
Readings
The remainder of this page is your required reading. and is a “skeleton” of the course.
FOOTNOTING
Legal Citation style: once you find the law you need to reference it for your reader. This link
https://docs.google.com/viewer?a=v&pid=explorer&chrome=true&srcid=0BwMRRQXBqVxjNWY1ZDk3YjUtOWE3MC00YzliLTg1NTAtODk5M2M0MzU4YTdm&hl=en_US
contains documents which indicate English, E.U., French, and German legal citation formats.
This link http://www.law.cornell.edu/citation/ gives you the format for U.S. legal citation.
HUMAN RIGHTS IN THE CULTURAL CONTEXT:
Introduction:
Constructivist learning theory:
The Learning Environment
*Safe
*Fun
*Exploration
*Curiousity
*Interaction
*I will tell jokes, to try to make you feel relaxed and happy.
*Work hard, play hard.
We’re here to learn
-to learn legal English, a specialized technical vocabulary.
-to learn law, a technical field.
*texting and i.m. is better than chatting, it is less disturbing to me and to the other students.
Course Objectives:
Legal Reasoning
-Analogy
-Deduction
-Abduction
-Conclusory reasoning
The Exam – Klausur – Case analysis
Introductions:
-Who has a weblog? (blog)
Teamwork?
Final exam or Final paper
Exam will have 1 essay 10 multiple choice. You can earn a passing grade with 10 correct essay answers and no essay, or a great essay and 0 correct multiple choice answers.
(number essay answers correct*10 + essay grade on scale of 1-100)/2 > 65% = pass.
Abbreviations:
HR = human rights
FP = foreign policy
PLAGIARISM
Plagiarism is the unattributed use of others works. When you use texts of others, whether quoted or paraphrased, you Must indicate such with a footnote. The footnote shows you have done your research and are not copying others work wrongly. Footnoting is good! Copying texts is ok, but Only if you indicate it with a footnote. We are teaching you how to think; we are not teaching you what to think. We want you to learn to think for yourself, to think independently, to think creatively and critically. Yes, we expect and hope you will read and refer to other authors – explicitly! You Must say when you use any other author’s text. There’s nothing to hide. We understand how difficult it is to write in a foreign language. It’s ok to quote other’s texts, even extensively. But, such uses of others texts must be cited with a footnote. It’s only fair. When you use any other author’s writing without citing it with a footnote it is as if you were trying to present someone else’s original work as your own. It’s not fair to that author. It’s also not fair to your reader – your reader will want to know where you got your ideas from, which other authors you read – and are responding to.
Because plagiarism is like stealing it is a serious academic offense. I know you will want to use other author’s texts. That’s fine it’s even expected and desired. BUT you Must tell us you did so – and that’s what footnotes are for. They show us you have done your research, have read and thought about other others.
FOOTNOTING
The footnote should be as follows:
Author’s First name and last name, a comma, the title of the work in italics, a way to find the work, the page or pages the cited source comes from and the year of publication, a period. Then, “Available at” and a url if possible. So, for example:
Eric Engle, My Next Great Idea, 1 Journal of Law and Economics, page 17 (2010). Available at: http://lexnet.com/my-next-great-idea.htm
The footnote should be sufficient so that I or your reader can locate the original text.
If/ you have lost the source, you should indicate as much of the source as you recall. An imperfect footnote is much much better than no footnote!
presents detailed rules – including examples! – of how to cite to legal sources in U.S. Style
presents detailed rules – including examples! – of how to cite to legal sources in British Style
they are similar but not the same. Please format your footnotes in either of these styles. You should choose the style based on whether you wish to try to publish your work in the U.S. or Europe, respectively.
shows how to cite to E.U. Laws.
You want your footnotes to be as proper as possible because editors at law journals will judge your work a bit based on the quality of your footnotes. No editor wants to reformat your footnotes. But an imperfect footnote is so much better than no footnote. It’s the difference between “acceptable” (a bad footnote) and “unacceptable and thus failure” (no footnote).
Most all of your life you have been told What to think. Anyone can memorize. We do not tell you what to think but How. That’s what we are looking for, and why plagiarism is common, yet unacceptable. It’s common because 1) someone else has thought of this 2) the grammar is so hard 3) it doesn’t seem like a big deal, people copy all the time. But it is a big deal, because we need to know where you got your nice text from, to be fair to other authors, and so you don’t appear to be stealing other’s ideas and presenting them as your own.
Citation is also important because Courts will Not “just take your word on it”. The Court Must have good law, must know where the law is which you are relying on! Prelaw Links
Philosophical Questions about Human Rights (Law)
Problematique:
Are Human Rights (HR) a “sword” or “shield” in Foregin Policy? (FP)
Relationship between national constitutional rights and international human rights
Define:
democracy
human rights
rule of law
economic productivity
How do these relate to each other? In law? In real life?
Law is a fiction, but it is a necessary and useful fiction.
Basic question:
What is the right?
Who has the right?
Against whom may they enforce the right?
TOPICS
Children’s Rights
Women’s Rights
Rights of Racial Minorities
Rights of Religious freedom
LGBT Rights
Right to Food
Right to Life
Right to Travel / Immigration
India – Capital punishment, right to food, GMO seeds, pesticides?
Trade/Business and human rights: sanctions? Does human rights observance give an advantage to business trade? Does HR implementation create a good business climate? Does HR observance result from a good business climate?
Refugees:
https://uk.news.yahoo.com/calais-migrant-claims-travel-uk-111742031.html#nlsALAz
Germany and HR:
German President Gauck on HR:
https://www.youtube.com/watch?v=E0hThZR5HR8
The German Presidency is a basically symbolic post, more or less like the UK Queen or Canada’s Governor General. The person holding that post is meant to symbolize German unity and good values.
German Foreign Office (=State Department) on human rights (in English):
http://www.auswaertiges-amt.de/EN/Aussenpolitik/Menschenrechte/Uebersicht_node.html
Germany’s Human Rights Commissioner Strasser on HR in English:
http://www.auswaertiges-amt.de/EN/AAmt/Koordinatoren/MR-Koordinator/Uebersicht-MRBeauftragter_node.html
Business and Human Rights in Germany:
http://www.auswaertiges-amt.de/EN/Aussenpolitik/Aussenwirtschaft/Wirtschaft-und-Menschenrechte/Uebersicht_node.html
German Foreign Minister Steinmeier on human rights and business:
http://www.auswaertiges-amt.de/EN/Aussenpolitik/Aussenwirtschaft/Wirtschaft-und-Menschenrechte/Wirtschaft-und-Menschenrechte.html
Videos:
Institute for Cultural Diplomacy: https://www.youtube.com/watch?v=BkzI7CrrHfI
Germany and HR: https://www.youtube.com/watch?v=Ee8YyHNHWOo
HR in Germany (lecture six parts) https://www.youtube.com/watch?v=hDq7EAL_V-Y&list=PLSLiIwG5ylcU1HSfepjT6lfU9Mx2cVvOs
HR and U.S. foreign policy since 2000: https://www.youtube.com/watch?v=Ee8YyHNHWOo
“A tale full of sound and fury, signifying – nothing”? Criticism of implementation of German human rights policy.
https://www.youtube.com/watch?v=j-EN-8aNPf4
HR Watch
https://www.youtube.com/user/HumanRightsWatch
Holocaust:
In popular imagination the holocaust is monolithic and tragic: factories of death, kill ’em all. Reality is more complex than that.
http://prorev.com/wannsee.htm
http://rationalwiki.org/wiki/Himmler_on_the_execution_of_Jews
http://www.unhcr.org/40f2bb884.html
http://www.bamf.de/EN/Migration/AsylFluechtlinge/asylfluechtlinge-node.html
Judicial review
https://www.germanlawjournal.com/pdfs/Vol09No10/PDF_Vol_09_No_10_1267-1296_Articles_Oster.pdf
https://books.google.co.uk/books?id=xAqUAgAAQBAJ&pg=PA25&lpg=PA25&dq=wall+stasi+law&source=bl&ots=5GlnJCEeTa&sig=eyIpb0F0auyAJnxRY6MWEkRrO-U&hl=en&sa=X&ved=0CIcBEOgBMBFqFQoTCK_0kKnV88YCFSdK2wodsUkBOg#v=onepage&q=wall%20stasi%20law&f=false
Integration of new citizens
http://www.migrationpolicy.org/article/germany-strives-integrate-immigrants-new-policies
http://www.make-it-in-germany.com/en/for-qualified-professionals/living/integration-courses
CURRENT EVENTS
Real world issues in human rights and current events. I will put the links to current events articles on this page.
http://www.nationalreview.com/corner/421517/saudi-arabia-iran-arms-race
http://www.hrw.org/news/2015/07/23/italy-ruling-faults-inaction-same-sex-couple-bill
https://uk.news.yahoo.com/migrant-teenager-found-dead-roof-eurotunnel-train-072556832.html#uHPTCyq
https://uk.news.yahoo.com/migrant-dies-attempt-enter-channel-tunnel-203435830.html#nDJttCn
THEORIES OF HUMAN RIGHTS
Structuring Law Aristotle:
Man is a rational talking social animal, curious by nature.
State is a natural outgrowth of the family.
Man when good is the most perfect animal but when evil is the very worst animal.
State is organic.
Government by rational principle, not by a man “for a man rules in his own interest and thus becomes a tyrant”
The governed and the governors take turns governing and being governed (yes, he says that).
But: Natural slavery. Aristotle thought some people were slaves by nature, that they were unable to think for themselves and needed someone to watch over them. The slave and the free man are different to Aristotle in that the slave “can apprehend but cannot form ideas”. (Man kann Ideen dem Sklaven erklären, aber der Sklave kann Ideen selber nicht gestalten).
Legal Typology
Freedom from / Right to
Negative rights / affirmative rights
Procedural/Substantive
civil and political rights
economic, social, and cultural rights
HR and rule of law
vested right, executory right, claim
4 basic rights in EU – free movement of good, workers, capital, services.
Hobbes
Life without the state is poor nasty brutish and short
People consent to be governed by a strong man who will protect them from each other and other strong men.
State is an artificial person, a mechanism.
Rousseau
General will
Right to Rebel
Social contract
Man in the state of nature is good – but society and social life corrupt him
Locke
Social contract
Labor theory of value
Life, liberty and property.
Kant
Human Dignity (not in the U.S. constitution, central to the German Grundgesetz).
I have yet to see much or any social contract theory in German intellectuals. It doesn’t seem to figure in the thinking of Marx or Hegel.
Social contract did not really correspond to German conditions? It certainly corresponded to U.S. conditions. Adult colonists fled
EUROPEAN RELIGIOUS WARS
so they agreed to form corporate bodies – Massachussets Bay Company, Hudsons Bay Company — these were corporations, chartered to govern lands and make profits.
Like Magna Charta the U.S. Revolution was (partly) about taxes.
U.S. colonists thought they were fighting to have the same rights as people in England.
The U.S. was a new secular order
*Not a monarchy
*Not a religious state (theocracy)
-But a slave state
-Multiracial
*First instance of the idea that peace is built through economic interdependence.
-that idea later gets taken up in the European Union.
*Limited government
-of enumerated powers (named powers)
Preamble to the U.S. Constitution is not a source of binding law.
Preamble Does have interpretive value to determine other laws.
No provision for plebiscites in the U.S. federal constitution.
Constitutional Rights
Arose out of the idea of non-binding hortatotory programmatic goals – Anspornendes Recht
These became increasingly seen as binding law.
Constitutional Principles:
A federal government of enumerated limited powers.
A presumption that federal power does not exist.
Federal powers are in the field of international relations, interstate commerce, international commerce.
There are lots of parallels between German and U.S. constitutional law.
There are also important differences.
There are no social rights (Vornahmerechte) in the U.S. federal constitution.
The federal constitution only contains protections against state power (Abwehrrechte) NOT protection against private power. There is no Drittwirkung (third party effect) in the U.S. constitution.
There is no principle of the social welfare state (Sozialstaatsprinzip) or of “essential human dignity” (Menschenwürde) in the U.S. federal constitution.
U.S. Constitution is written in simple English and is intended to be understood by the ordinary person.
Bold are terms already in the legal language (stuff I did not make up)
Italic or plain text are my translations
Vocabulary: These two are inexact.
Objektives Recht – Objective law ; Executory rights
Subjektives Recht – Vested Rights; Rights in personam
These are exact.
Materielles Recht – Substantive Law – Substantives Recht
Verfahrensrecht – Procedural Law
Formelles Recht – Formal law; Procedural Law
Positive Law – Geltendes Recht; Positives Recht
These are exact but are also my own translations of German terms.
Abwehrrechte – Freedoms from State power
Vornahmerechte – Affirmative Claims to state resources
Mitwirkungsrechte – Rights of political participation
Teilhaberrechte – Participatory Rights
Judicial Review
The U.S. and French revolutions were revolutionary because they brought back Aristotle’s idea of government by consent instead of government by divine right of kings.
the story of the rise of fundamental rights is the recognition of fundamental rights politically and then the legal implementation (Umsetzung) of the politically recognized fundamental right.
Why was there a revolution? U.S. Declaration of independence
The declaration is not “binding” law in the sense that it creates no rights or duties
but IS persuasive in that it explains Why the U.S. government was formed; it can be used as an aid to interpret other laws.
“Soft law” is not directly binding but has persuasive value.
1) Taxation – the colonies were only indirectly represented in London.
a) Lots of colonists were tax evaders, pirates, privateers.
2) Land expansion in the West. The British wanted to get along better with the natives so restricted colonization of the west.
3) Violent suppression of riots
4) Slavery is tough. The Crown opposed slavery. The industrializing Northern also opposed slavery. The rural agrarian South supported slavery.
a) This would later result in the U.S. Civil War.
Interestingly religion was Not one of the causes of the revolution. The principle of religious tolerance existed de jure (By law) in some of the Colonies (Rhode Island is the famous example) and de facto (in practice) in others (New York). The British crown had catholic colonies – Quebec, Maryland.
One key idea of the U.S. revolution was the idea that if the constitution is law then the ordinary laws are subject to the constitution.
This view of the relationship between ordinary law and the constitution did not prevail in England. In England the doctrine of parliamentary supremacy prevailed.
This is the issue of the “direct effect” of public law on private persons
The public law may have no effect,
indirect persuasive effect
or direct binding effect
and that effect may be between
two governing bodies
the state and the private law person
two private law persons
THIS ISSUE OF WHEN AND WHETHER PUBLIC LAW HAS EFFECTS ON PRIVATE LAW RELATIONS IS STILL A VITAL CENTRAL CONCERN OF LAW.
It is an open issue! Controverted!
In Germany, e.g. there is now the AGG.
SOURCES OF LAW AND HIERARCHY
Laws have a legal presumption of being consistent with each other
(Vermutung der Vereinbarkeit der verschiedenen Gesetze)
So, when interpreting laws, courts will always interpret them so as to be not in conflict.
Furthermore whoever wishes to argue that a law is unconstitutional must prove their case: when in doubt, whoever has the burden of proof loses.
Sometimes laws conflict with each other and courts cannot avoid facing the fact that two different laws are in conflict.
How to resolve the conflicts?
There is a hierarchy. (Einstufung)
U.S. Federal Constitution
Ordinary federal law and International Law are next and are equally ranked.
International law may be
-customary international law is directly effective
-international treaty law only has direct effect if ratified
-some treaties codify customary law. Vienna Convention, Convention on Rights of Child, Law of the Sea Convention
Ordinary federal legislation
State Constitution
State Legislation
Customary Law
Case Law
Case law (Rechtsprechung; Richterrecht) is properly speaking customary law. It IS a source of law.
What is Not in this list?
Legal scholarship. It is NOT a source of law.
General principles of law (Allgemeine Rechtsgrundgsätze) – are also not a source of law!
*Caveat: General principles of law and legal scholarship ARE sources of international law. So they exceptionally occur in Anglo-American common law.
Customary Law = Actual pratice coupled with sense of binding obligation.
Direct effect is the idea that a law creates enforceable rights. The entire story of constitutionalization of law is the finding a) that a right exists b) that the right is held by a certain person c) that the person who holds the right can enforce it.
Not all rights are held by persons!
Not all right are enforceable!
There is an international law against kidnapping (=abduction; Entführung): no State may kidnap any person.
States do sometimes kidnap people! Eichmann, Argoud, various terrorists.
Guess what? The right not to be kidnapped is NOT held by an individual. It is held by their State. Your only remedy if you are Eichmann is to beg the German government or the Argentine government to save you.
Further, not all rights are enforceable! Some rights are
a) programmatic — they set out a goal for the government
b) hortatory (Anspornend) — they inspire, exhort.
Hortatory and programmatic laws may however have persuasive value for the interpretation of other laws.
The story of constitutionalization starts with:
1) The question whether national public law (the constitution) can apply to private persons (Vertical direct effect of national law)
-the U.S. said “yes”
-Britain said no.
2) Then the question whether the national public law (the constitution) can apply to the relations of private parties inter se (Horizontal direct effect)
-the U.S. said “no” (No third party effect).
-Germany said “yes”
(Bundesarbeitsgericht: Unmittelbare Drittwirkung der Grundrechte;
BVerfG Mittelbare Drittwirkung der Grundrechte)
3) The current question is whether and when international public law — treaties — can have direct or indirect effects into national law.
a) Ius cogens — clearly yes
b) Customary international law — Yes in the U.S. and Germany and probably France
c) International treaty — direct effect only if so intended and ratified. May have indirect effect depending on the national law.
ORIGINS OF THE STATE
Most human rights are enforced by states, so we have to understand a bit about the origin of the state to understand the rights which states recognize.
What is the origin of the State?
Organic/Historical Theory: ARISTOTLE
Family, Extended Family, Clan, Tribe, Polis, League of Polises
Seems historically tenable.
Per Aristotle:
-Man is a rational talking social animal, inherently curious
-Slavery is natural and good
-Happiness is the highest goal of life in political society. The object of the state is to attain the good life for all.
*”We do not allow a Man to rule but Rational Principle, for a Man decides in his Own interested — and thus becomes a Tyrant.”
–First idea of the rule of law State.
Contract Theory
-Requires capacity to contract
-How is will manifested?
-Why does contract bind succeeding generations?
-“State of Nature” (SON) never existed: Humans by nature are social and interdependent.
Hobbes SON – “poor, nasty, brutal and short”, a war of all against all, the law of the jungle, natural right to self defence
Citizens alienate right to self defence to a strong man. “a common power to keep them all in awe”.
Rousseau’s SON – primitive communism, instinctive, natural, comfortable, plentiful, no property. (influences Marx)
Locke’s SON – like the garden of eden, impoverished but peaceful.
Social Contract NOT historically tenable BUT corresponded fairly accurately to the U.S. colonial experience!
U.S. a “great experiment” “novus ordo saeclorum”.
*Multiracial (Natives, Europeans, Africans)
*Multinational (Britons, Germans, Dutch, Swedes, French)
*Several religions (various Protestant sects, Catholics, Jews, Natives)
*Secular State – because European religious wars caused European refugees to flee for their lives to the Americas.
*No Aristocracy – they thought about whether to have a king, (elected: for life tenure?) and decided not to.
*Limited Self Government – since the state is not a giant family it does not and cannot do everything
-Plenty of dictatorships still exist.
-Plenty of aristocratic states still exist.
*Freedom of Trade
All these things were revolutionary and led to the revolutions in France,(1789), Europe (1848), Russia (1917) and China (ca. 1920-1949).
Written Constitution, unlike Britain’s which was unwritten.
Thus: judicial review possible. This implies:
*Enforceable constitutional rights. Constitutional rights Not as political claims but as enforceable legal rights.
MODERNITY (NEUZEIT) IS THIS:
The replacement of war by politics, (negative sum)
the replacement of politics by law, (zero sum)
the replacement of legal conflict with economic trade. (positive sum)
Rise of Judicial Review (Revisionsverfahren): until the Bonn Republic Germany had no judicial review against the constitution because the constitution was a political document, addressed to state power, not to the people. It was the law of the organization of the state, not the law of fundamental rights.
Public law is compledx because people’s lives and liberty are at stake, not just their property. Public law is the law of “go to jail” “go to war” “pay that tax” and so on. Thus, it is hotly contested.
Because the stakes are much higher and hotly contested the law itself is more conflicted.
I try to impose structure into this area of law in these ways:
1) Look at law as four branches: Public, Private, National, International
Our course is public national law, though we look to analogies from private national and public international law.
2) Structure the term “right”
“Substance” versus “Procedure” (Materielles Recht oder Verfahrensrecht)
“Substance” versus “Procedure” (Materielles Recht oder Verfahrensrecht)
“Rights to” versus “freedoms from”
Civil and Political Rights (Bürgerrechte)
Economic and Social Rights (Vornahmerechte)
*Objektives Recht – der Begriff leider gibt’s nicht im Englischen.
*Subjektives Recht – etwa “Vested right”) so
Vested
Executory
In personam
In rem
Hortatory
Positive (Positives Gesetz)
Natural (Vernunftrecht)
3) Hierarchize norms:
a) What is the source of the norm?
b) What is the purpose of the norm?
4) Impose a hierarchy of interpretion (Savigny’s four step “Waltz”)
5) Presumptions and burdens of proof.
6) Impose structure using the “general rule” versus “specific exception” distinction
7) Judicial parsimony
(“Nur entscheiden, was entscheiden werden muss; Achtung! Urteilstil! Nicht für Prüfung geeignet!)
8 Stare decisisis: i.e. the rule of precedent.
Sometimes I am confronted by the fact that
Public law is essentially more complex than private law.
It is.
The reason is because people’s lives and liberty are at stake, not just their property. Public law is the law of “go to jail” “go to war” “pay that tax” and so on. Thus, it is hotly contested.
Public law is essentially more complex than private law.
It is.
The reason is because people’s lives and liberty are at stake, not just their property. Public law is the law of “go to jail” “go to war” “pay that tax” and so on. Thus, it is hotly contested.
Because the stakes are much higher and hotly contested the law itself is more conflicted.
I try to impose structure into this area of law in these ways:
1) Look at law as four branches: Public, Private, National, International
Our course is public national law, though we look to analogies from private national and public international law.
2) Structure the term “right”
“Substance” versus “Procedure” (Materielles Recht oder Verfahrensrecht)
“Substance” versus “Procedure” (Materielles Recht oder Verfahrensrecht)
“Rights to” versus “freedoms from”
Civil and Political Rights (Bürgerrechte)
Economic and Social Rights (Vornahmerechte)
*Objektives Recht – der Begriff leider gibt’s nicht im Englischen.
*Subjektives Recht – etwa “Vested right”) so
Vested
Executory
In personam
In rem
Hortatory
Positive (Positives Gesetz)
Natural (Vernunftrecht)
3) Hierarchize norms:
a) What is the source of the norm?
b) What is the purpose of the norm?
4) Impose a hierarchy of interpretion (Savigny’s four step “Waltz”)
5) Presumptions and burdens of proof.
6) Impose structure using the “general rule” versus “specific exception” distinction
7) Judicial parsimony
(“Nur entscheiden, was entscheiden werden muss; Achtung! Urteilstil! Nicht für Prüfung geeignet!)
8 Stare decisisis: i.e. the rule of precedent.
THE PROBLEM WITH FUNDAMENTAL RIGHTS IS THAT THEIR EXTENT IS AMBIGUOUS
This is why we tried to distinguish rights as:
substantive
procedural
vested
executory
hortatory
in personam
in rem
civil and political (Bürgerrechte)
social rights (Vornahmerechte)
Why ambiguity?
Because the terms are general.
Because different private persons’ fundamental rights can conflict.
HOW TO GET RID OF AMBIGUITY?
1. LEGAL PRESUMPTIONS.
2. LEGAL HIERARCHY.
1. LEGAL PRESUMPTIONS.
2. LEGAL HIERARCHY.
1) If it is possible to interpret federal or state legislation, the federal constitution, and internationally consistently then such an interpretation will apply.
It is only where there is an unavoidable conflicting interpretation where the court is compelled to choose that the hierarchy of law:
constitution,
federal and international law,
state constitution,
state law
Is this even a personal right? If there is no right we don’t have to figure out its extent.
In principle the addressee of the federal constitution is the federation, not the states nor the people.
Thus, the fundamental rights listed in the bill of rights did not apply to the states
until the XIVth Amendment (Civil War).
*When does a fundamental right apply to the states?
It is the same question as whether the constitution applies overseas! Or to foreigners!
Public Private
National 1 2
International 3 4
Monism-Dualism
U.S. Monist as to customary international law
(custom = actual practice + belief such practice is legally binding)
U.S. Dualist as to treaties:
Unratified treaties do not have direct domestic effect.
Ratified treaties have direct domestic effect.
Treaties with direct domestic effect may also create rights among private persons (third parties)
*against the state (vertical direct effect)
*against other private persons (horizontal direct effect)
Direct Effect / Self Executing / Transposition
The German word for “elector” (as in “electoral college) is: Kürfurst. When the President is elected, the voters in each state vote for an elector, who pledges to vote for their choice. Each state organizes its own elections for the President. In practice, each state is “winner take all”. Each state has a number of electors assigned to it based on its population. This is why you can have a majority of U.S. persons voting for Gore, yet have Bush elected (See: Bush v. Gore, 531 U.S. 98 (2000)).
State parties to a treaty are first and second parties.
Signature of a treaty creates legal rights and duties between states as a matter of *international* law.
(horizontal effect)
U.S.A. ———— Germany
! !
! !
! !
! !
U.S. Citizen German Citizen / National
! !
! !
! !
U.S. Citizen German Citizen / National
(third parties)
There are several related separate questions, namely:
I. Is the treaty/constitution directly effective in national law?
A. If the treaty/constitution is directly effective in national law:
1) Does the treaty create rights between the state and the citizen? (Vertical direct effect)
2) Does the treaty create rights between citizens? (Horizontal direct effect)
If the treaty does not create directly effective rights and duties in national law,
or if the treaty does not create directly enforceable righs of private persons,
the treaty may nonetheless have indirect effect as a persuasive evidence of other positively binding rights. (Indirect effect)
Notice that whether it is a treaty or a constitution we are asking the same question! Does the public law instrument create binding rules? If it does, may individuals invoke the public law document to secure their private rights?
I.e. “Does Marbury have a right?” “If he has a right, can he enforce it?”
U.S. is monist as to customary international law.
1. Customary international law is directly effective before U.S. courts.
U.S. is dualist as to treaty law.
2. As a general rule, Exceptionally, some treaties are transposed into domestic law. Ordinarily a treaty does not create rights or duties which may be enforced before U.S. courts by private persons.
The U.S. regards the U.S. constitution and ordinary federal legislation as hierarchically superior to international law.
One can make a good argument however that the ordinary legislation of the several states is inferior to international law because of the nearly exclusive federal power over international relations.
At the same time, one can argue that the constitutions of the several states are superior to international law, because the several states were international legal persons prior to the constitution of 1787.
However:
1) All laws are presumed to be coherent and not in conflict. Whoever wants to argue that laws are in conflict bears the burden of proof that they are and if the laws can be interpreted in a non-conflicting way the court will interpret them not to be in conflict.
2) These questions are rarely litigated due to the “political question” doctrine. They are often considered non-justiciable. That’s because the federal government, specifically the presidency, has nearly exclusive power over foreign relations.
Some people see international society as a “state of nature” — the law of the jungle (terrible!) — that is less and less the case because of the U.N. and a vast network of international treaty law.
TYPES OF RIGHTS/FREEDOMS
Hortatory (Anspornsrechte)
License (Erlaubnis)
Executory (etwa wie eine Anwartschaft)
Vested (sicher begründete Rechte)
Fundamental freedoms from State action (Civil and Political Rights) (Abwehrrechte; Freiheitsrechte)
Positive claims to state resources (Economic and Social Rights)
Civil Rights (Bürgerrechte)
Rights in Personam
Rights in Rem (Sachenrechte)
STRUCTURE OF THE GLOBAL LEGAL SYSTEM
National Law — International Law
private law
——————————————–
public law
STRUCTURE OF THE U.S. FEDERAL SYSTEM
Executive — Legislative — Judicial
Federal
………………………………………..
State
STRUCTURE OF ARGUMENTS
Text (what does this term mean? what does this term Not mean?)
Grammar, Structure (Context)
Legislative History
Teleology (what would this lead to? where do we want to go)
THEORIES OF LAW
Conceptual jurisprudence (Begriffsjurisprudenz)
-deduction of legal will from the legal code
-rules
-conditionals “if … then”
Legal process interest balancing (Interessenjurisprudenz)
-standards, norms, policies
-interest balancing (Interessenabwägung)
*identify interested parties (plaintiff, defendant, state, stakeholders)
*identify competing interests
*evaluate interest, i.e. assign a “weight” ($) to the interest
*compare the competing interests
Creative Legal Arguments
*History
*Economics
*Legal Theory
*Comparative Law
Reductio argument: “Look what it would lead to” – counterfactual reasoning (“imagine”)
Law is split into four quadrants:
Public — Private
National
International
This is related to two questions:
1) Does the (public)(international) law apply domestically (Anwendbarkeit)
2) Can the (public) (international law) be enforced by private persons? (Unmittelbar) or instead only by States (Mittelbar).
Unmittelbare Anwendbarkeit in English is
Direct Effect.
This question is more often referred to in U.S. law as “the State Action doctrine” or “the color of law”.
The law of state organization is public law. Thus, in principle, it governs the relations of public law bodies.
To structure our own thinking — which makes our arguments more persuasive — we make the doctrinal (=Rechtsdogmatik) distinctions public/private national/international.
stare decisis – precedence rule (Präzedenzfall – Richterrecht): In common law judges “expound” the customary common law (custom = actual practice + belief the practice is legally obligated or permissible). Cases are analogized to each other (case A is like case B so the same rule 1 which governed case A should govern case B) or distinguished from each other (A is NOT like B for these reasons… and so rule 1 which applied in case A may not apply to case B.)
As well as teaching you law, I am trying to teach you how to think creatively about law: part of that is “counterfactual” reasoning. “What would it lead to”. “What if”.
Read everything you can, but especially read those things which you are curious about.
I. the plain text (plain meaning, Wortlaut des Gesetzes) to
II. context (grammar and structure), then
III. legislative history (Rechtsgeschichte, Travaux préparatoires) and ends with
IV. teleology – the purpose of the law (sinn und Zweck des Gesetzes).
We can contrast vested rights with executory rights. An executory right requires further action to vest. For example, I have an executory right to my pay, which vests when I finish lecturing this semester and fill out my time sheets.
We can also consider hortatory rights (Anspornsrechte). The hortatory right is not binding. It is a desired social goal. But even though a hortatory right creates neither vested nor executory rights it may be used in the interpretation of other rights.
CUSTOMARY INTERNATIONAL LAW
Some people see International Human Rigths Law (IHR) as separate from customary law, others do not.
Why it matters: Some argue different branches of law have different rules of interpretation
If IHR is just customary law the rules are easy and known.
If IHR is not just customary or treaty law, i.e. if it is its own branch then maybe it has different rules of interpretation, e.g. analogies from national constutional law or transnational law (ECHR)
Why it matters: Some argue different branches of law have different rules of interpretation
If IHR is just customary law the rules are easy and known.
If IHR is not just customary or treaty law, i.e. if it is its own branch then maybe it has different rules of interpretation, e.g. analogies from national constutional law or transnational law (ECHR)
Customary international law has two elements: actual practice and the belief that such practice is legally binding. Hortatory rights may be evidence of the opinion that an actual practice is legally binding. Hortatory rights may also be used for the interpretation of other rights: the hortatory right may show us the purpose of the law; remember that when interpreting a statute (=Gesetz) we look first at
The literal text (Wortlaut des Gesetz).
then the context (Grammar and structure; flanking laws)
then the legislative history
then the goal of the law (teleology) (Sinn und Zweck des Gesetz).
Fundamental human rights had often been seen as political claims, not as legally enforceable rights.
Political claims in a democracy are enforced at the ballot box – by voting.
“Declaration” or “Resolution” means *non binding*. No one who wrote the French declaration of rights of man thought that they were creating legally ence of rights, and can be and are invoked as a guide to the extent of other positively enforceable legal rights.
Political claims in a democracy are enforced at the ballot box – by voting.
“Declaration” or “Resolution” means *non binding*. No one who wrote the French declaration of rights of man thought that they were creating legally ence of rights, and can be and are invoked as a guide to the extent of other positively enforceable legal rights.
U.S. Declaration of Independence only has one positive legal effect: the establishment of the United States’ claim international legal personality.
However, the Declaration of Independence is persuasive evidence of law; it tells us goals and purposes of the United States (“life, liberty, and pursuit of happiness”).
The U.S. Articles of Confederation created a confederation: confederations are not permanent. They can be an international legal person. Confederations are
the forerunner of international organizations. Int. Orgs did not exist under international law until 1919 at earliest but by 1945 were clearly a part of
international law. One may call the U.N. *either* a confederation (my view) *or* an international organization (the majority view).
Member States of a confederation may withdraw from the confederation. Confederation is not perpetual. In contrast, federation is perpetual and Member States may not withdraw from it.
The Rise of Fundamental Rights as Legally Enforceable Claims:
Effect of Judicial Review:
1) Non-enforcement of a right (no determination of constitutionality or unconstitutionality; rather, that the right, while it may exist, is unenforceable)
2) Declaration that an entire legislative act is void
3) Declaration that a *specific provision* of the law (e.g. “§3(c), only” is void
4) Determination that the law is unconstitutional and will not be applied until amended.
Hierarchy of Norms
From most controlling to least: this is how we structure conflicts between laws.
Federal Constitution is highest
Ordinary Legislation – International Law
–Customary International law=directly effective=unmittelbare Anwendbarkeit
–Treaty Law – Must be ratified. Not directly effective.
State Legislation: then state law.
Sources of National Law:
Legislation
Customary Law = Actual practice + Sense of legal obligation
Case law — case law is supposedly expressing customary law
International Law – What is it? Where is it in relation to national law? Some countries see it as separate, others as subordinate, others as superior to national law.
Treaties = Conventions (Abkommen, Verträge)
– not directly effective (Unmittelbare Anwendbarkeit)
Customary Law = Gewohnheitsrecht
– directly effective
Separation of Powers – Gewaltenteilung
*Executive
*Legislative
PRELAW I
Corporations and Human Rights
How to Read a Balance Sheet (The Non-Boring Version)
Corporations and Human Rights
How to Read a Balance Sheet (The Non-Boring Version)
Understanding Annual Reports
Common Valuation Ratios | P/E Ratio
Investment Valuation Ratios: Price/Earnings Ratio | Investopedia
Price–earnings ratio - Wikipedia, the free encyclopedia
Debt-to-equity ratio - Wikipedia, the free encyclopedia
Return on capital employed - Wikipedia, the free encyclopedia
Eric Engle, Corporate Social Responsibility (CSR): Market-Based Remedies for International Human Rights Violations? 40 Willamette L. Rev. 103 (2004). Available at: {}shttp://amor.cms.hu-berlin.de/~engleeri40WillametteLRev103.htm
Cite as: Eric Allen Engle, What You Don't Know Can Hurt You: Human Rights, Shareholder Activism, and SEC Reporting Requirements 50 Syr. L.Rev. 63 (2006). Available at: http://amor.cms.hu-berlin.de/~engleeri <b>Citation:</b> Eric Allen Engle, What You Don't Know Can Hurt You: Human Rights, Shareholder Activism and SEC Reporting Requirements, 57 Syracuse L. Rev. 63 (2006). Available at: http://amor.cms.hu-berlin.de/~engleeri57SyracuseLRev63.htm
U.S. Corporate Liability for Torts of (Foreign) Subsidiaries by Eric Engle :: SSRN
Cite as: Eric Engle, Extraterritorial Corporate Criminal Liability: A Remedy for Human Rights Violations? 20 St. John's J. Legal Comment., 287 (2006). Available at: http://lexnet.co.cc/corporations/20StJohn'sJLegalComment287.htm
Eric Engle, I Get By With A Little Help From My Friends. Understanding the UK Anti-Bribery Statute, By Reference to the OECD Convention and the Foreign Corrupt Practices Act 44 Int'l Law. 1173 (2010). Available at: {}shttp://amor.cms.hu-berlin.de/~engleeri44Int'lLaw1173.htm
Green Taxation and the EU
Eric Allen Engle, Universal Human Rights: A Generational History, 12 Ann. Surv. Int'l & Comp. L. 219 (2006).
A Social-Market Economy for Rapid Sustainable Development by Eric Engle :: SSRN
Beating bribery: Small change | The Economist
WTO Proposes Slavery for Africa | The Yes Me
We will be covering a lot of material in this module and just about all of it is useful.
The “strategic” goal of the module is to understand how the rule of law can be generated through corporate activity. The “tactical” learning objectives are:
I.
How to read a company balance sheet.
Accounting methods (GAAP)
How to objectively value a company (ratio analysis)
II.
Understanding the legal structures of a business
-Capital structure (Debt, Equity)
-Governance Structures
–Boards of directors
–Shareholder’s meetings
III. Corporate Governance
A. Soft governance
1. Resolutions
2. “Soft Law”
3. Human rights
4. Corporate Compliance
B. Hard Governance
1. Tort law
2. Criminal law (economic crimes)
3. Taxation
https://www.daad.de/deutschland/studienangebote/international-programs/en/
http://www.e-fellows.net/KARRIEREWISSEN/Job-Skills/Business-Englisch/Trainiere-dein-Hoerverstehen
http://www.greenpeace.org/africa/en/News/news/Exposed-Illegal-Fishing-in-West-African-Seas/
NFORMATION
These videos are optional material you may find useful/fun.
Caveat: This site==> http://www.youtube.com/user/Lawschoolsuccess is not good. It’s only a giant advertisement (Werbung). Ignore that site.
HOW TO BRIEF CASES
Rememeber, in case briefing we are looking for the facts, the rule.
http://www.youtube.com/watch?v=feucSsK_L50
This is good because he points out the link between briefing the case and the IRAC formula.
This is also about case briefing , it might be easier to follow since it is also in writing:
http://www.youtube.com/watch?v=lH1XkaFD2C0&NR=1
I sent this IRAC link in the mail earlier, I think it’s good.
http://www.youtube.com/watch?v=g6KOsHYiL3k&NR=1
This isn’t the IRAC link I sent earlier but is also good
http://www.youtube.com/watch?v=NtLV_0HRLB4
This one is good: NO CONCLUSORY REASONING show me the Reasons not just the Outcome!
http://www.youtube.com/watch?v=An-1xWBRLmM&NR=1
IRAC — I dont think this is good but you might disagree.
http://www.youtube.com/watch?v=BfcUay1xx2U&feature=related
this site^ has 2 others on irac http://www.youtube.com/user/JonesCollegeJAX
http://www.youtube.com/watch?v=FvuiFoO3Ulc
Corporation – This one is definitely relevant for my corporation course.
http://www.youtube.com/watch?v=cY2EhEYbk1U&feature=related
Affidavit – YouTube – This one is generally relevant.
http://www.youtube.com/watch?v=fT4DrWTYQD0&NR=1
Reading Cases Guide – YouTube — It’s ok, but only that.
http://www.youtube.com/watch?v=LlvGCAkM3XQ&NR=1
Legal Writing Skills Module 3: WRITING AND REFERENCING – It’s ok, but only that.
http://www.youtube.com/watch?v=KXHx5xcB6C4&NR=1
pols424: reading cases – It’s ok, but only that.
http://www.youtube.com/user/LawStudySystems#p/u
Consideration (Contracts) – Not relevant to either of my courses but really well done.
The world legal information institute http://www.worldlii.org/ has links to free online law from a variety of jurisdictions.
As of yet there is no E.U. or German L.I.I.
Legal Citation style: once you find the law you need to reference it for your reader. This link
https://docs.google.com/viewer?a=v&pid=explorer&chrome=true&srcid=0BwMRRQXBqVxjNWY1ZDk3YjUtOWE3MC00YzliLTg1NTAtODk5M2M0MzU4YTdm&hl=en_US
contains documents which indicate English, E.U., French, and German legal citation formats.
This link http://www.law.cornell.edu/citation/ gives you the format for U.S. legal citation.
INTERNSHIPS AND JOBS
http://www.state.gov/vsfs/243849.htm
Journalists! Master Studiengang in Bonn (DW)
http://www.dw.de/dw-akademie/application/s-12278
Diplomats! Training for International Diplomats
http://www.auswaertiges-amt.de/EN/AusbildungKarriere/InternationDiplAusbildung/Uebersicht_node.html
U.N. Internships:
http://www.un.org/Depts/OHRM/sds/internsh/
EU Internships:
http://ec.europa.eu/stages/index_en.htm
http://europa.eu/about-eu/working-eu-institutions/traineeships/index_en.htm
http://fra.europa.eu/en/about-fra/recruitment/internship
http://www.euintheus.org/what-you-can-do/work-with-us-internships/
European Court of Human Rights
http://www.coe.int/en/web/jobs/traineeships
Praktika beim Auswärtigen Amt
http://www.auswaertiges-amt.de/DE/AusbildungKarriere/AA-Taetigkeit/Praktika/Praktika_node.html
Bundestag (Federal Parliament)
http://www.bundestag.de/ppp
U.N. Internships:
http://www.un.org/Depts/OHRM/sds/internsh/
EU Internships:
http://ec.europa.eu/stages/index_en.htm
http://europa.eu/about-eu/working-eu-institutions/traineeships/index_en.htm
http://fra.europa.eu/en/about-fra/recruitment/internship
http://www.euintheus.org/what-you-can-do/work-with-us-internships/
TRANSLATORS AND INTERPRETERS:
EUR-Lex (Community law online): http://eur-lex.europa.eu
IATE terminology database: http://iate.europa.eu
Directorate-General for Translation, European Commission:
European Master’s in Translation (EMT): http://ec.europa.eu/emt
Directorate General for Interpretation, European Commission:
How to become an interpreter?: http://bit.ly/q64qcN
European Master’s in Conference Interpreting (EMCI):
Associations of translators, terminologists
and translation companies
International
Globalisation and Localisation Association (GALA)
International Association of Conference Translators
International Association for Translation and Intercultural Studies
International Federation of Translators (FIT)
International Permanent Conference of University Institutes of
Translators and Interpreters (CIUTI) http://www.ciuti.org
Unesco Clearing House for Literary Translation
EU-wide
European Association for Machine Translation (EAMT)
European Council of Literary Translators’ Associations (CEATL)
European Society for Translation Studies (EST)
European Union of Associations of Translation Companies
Links to HR organizations
US Institutes of Peace: http://www.usip.org
State Department
http://exchanges.state.gov
RESEARCH SOURCES FOR TREATIES AND LAWS
Links to the legal materials you need to figure out human rights (laws, norms, rules, standards, goals)
Conceptual guide: ask yourselves what is the relationship, if any, between morality, law, and justice.
Try to figure out a structure of rules: a typology of rules.
What is the difference between law and politics? A legal right and a political right?
Magna Carta
http://www.legislation.gov.uk/aep/Edw1cc1929/25/9/contents
Declaration of Independence
http://www.let.rug.nl/usa/documents/1776-1785/the-final-text-of-the-declaration-of-independence-july-4-1776.php
U.S. Constitution
https://www.law.cornell.edu/constitution
Is the bill of rights binding law?
a) on the federal government?
b) on the states?
c) on private persons?
Declaration of rights of man:
http://avalon.law.yale.edu/18th_century/rightsof.asp
Are declarations legally binding? Or do the merely set out goals – of law? Of politics?
The UN Right System
Understand that the UN system is meant to help the poorer countries reach the same standards of the richer ones and it is easier to see how it functions.
UDHR
http://avalon.law.yale.edu/20th_century/unrights.asp
ICCPR
https://treaties.un.org/pages/viewdetails.aspx?chapter=4&src=treaty&mtdsg_no=iv-4&lang=en
ICESCR
http://www.un-documents.net/icescr.htm
CEDAW
http://www.un.org/womenwatch/daw/cedaw/
CERD
http://www.ohchr.org/EN/ProfessionalInterest/Pages/CERD.aspx
Germany – Fundamental Law (=Constitution)
The German fundamental law was a provisional law (Provisorium) meant as a transition law to be replaced on reunification – but it was well thought out and was not replaced because it worked. Judicial review is now part of German law.
http://www.gesetze-im-internet.de/englisch_gg/
EU Law
http://eur-lex.europa.eu/collection/eu-law/treaties-force.html?locale=en
European Convention of Human Rights
http://conventions.coe.int/treaty/en/Treaties/Html/005.htmhttp://conventions.coe.int/treaty/en/Treaties/Html/005.htm
Civil Rights Act of 1964
http://finduslaw.com/civil-rights-act-1964-cra-title-vii-equal-employment-opportunities-42-us-code-chapter-21
Equality Act
http://www.wired.com/2015/07/apple-equality-act/
Documents which are not laws, but which discuss laws.
http://www.constitution.org/jl/2ndtreat.htm http://oll.libertyfund.org/titles/359
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1020464
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1424691
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2344333
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2319175
NGOs:
https://www.amnesty.org/en/who-we-are/
http://www.banktrack.org/
https://www.hrw.org/
http://www.osce.org/
http://www.dw.com/en/quadriga-refugees-welcome-in-germany-2015-07-30/e-18573092-9798
Introduction: Constructivist Learning Theory
The Learning Environment
*Safe
*Fun
*Exploration
*Curiousity
*Interaction
*I will tell jokes, to try to make you feel relaxed and happy.
*Work hard, play hard.
*Safe
*Fun
*Exploration
*Curiousity
*Interaction
*I will tell jokes, to try to make you feel relaxed and happy.
*Work hard, play hard.
We’re here to learn
-to learn legal English, a specialized technical vocabulary.
-to learn law, a technical field.
*try only to use English
*texting and i.m. is better than chatting, it is less disturbing to me and to the other students.
Course Objectives:
Legal Reasoning
-Analogy
-Deduction
-Abduction
-Conclusory reasoning
The Exam – Klausur – Case analysis
Structuring Law
Aristotle:
Man is a rational talking social animal, curious by nature.
State is a natural outgrowth of the family.
Man when good is the most perfect animal but when evil is the very worst animal.
State is organic.
Government by rational principle, not by a man “for a man rules in his own interest and thus becomes a tyrant”
The governed and the governors take turns governing and being governed (yes, he says that).
But: Natural slavery. Aristotle thought some people were slaves by nature, that they were unable to think for themselves and needed someone to watch over them. The slave and the free man are different to Aristotle in that the slave “can apprehend but cannot form ideas”. (Man kann Ideen dem Sklaven erklären, aber der Sklave kann Ideen selber nicht gestalten).
Hobbes
Life without the state is poor nasty brutish and short
People consent to be governed by a strong man who will protect them from each other and other strong men.
State is an artificial person, a mechanism.
Rousseau
General will
Right to Rebel
Social contract
Man in the state of nature is good – but society and social life corrupt him
Locke
Social contract
Labor theory of value
Life, liberty and property.
Kant
Human Dignity (not in the U.S. constitution, central to the German Grundgesetz).
I have yet to see much or any social contract theory in German intellectuals. It doesn’t seem to figure in the thinking of Marx or Hegel.
Social contract did not really correspond to German conditions? It certainly corresponded to U.S. conditions. Adult colonists fled
EUROPEAN RELIGIOUS WARS
so they agreed to form corporate bodies – Massachussets Bay Company, Hudsons Bay Company — these were corporations, chartered to govern lands and make profits.
Like Magna Charta the U.S. Revolution was (partly) about taxes.
U.S. colonists thought they were fighting to have the same rights as people in England.
The U.S. was a new secular order
*Not a monarchy
*Not a religious state (theocracy)
-But a slave state
-Multiracial
*First instance of the idea that peace is built through economic interdependence.
-that idea later gets taken up in the European Union.
*Limited government
-of enumerated powers (named powers)
Preamble to the U.S. Constitution is not a source of binding law.
Preamble Does have interpretive value to determine other laws.
No provision for plebiscites in the U.S. federal constitution.
Constitutional Rights
Arose out of the idea of non-binding hortatotory programmatic goals – Anspornendes Recht
These became increasingly seen as binding law.
Constitutional Principles:
A federal government of enumerated limited powers.
A presumption that federal power does not exist.
Federal powers are in the field of international relations, interstate commerce, international commerce.
There are lots of parallels between German and U.S. constitutional law.
There are also important differences.
There are no social rights (Vornahmerechte) in the U.S. federal constitution.
The federal constitution only contains protections against state power (Abwehrrechte) NOT protection against private power. There is no Drittwirkung (third party effect) in the U.S. constitution.
There is no principle of the social welfare state (Sozialstaatsprinzip) or of “essential human dignity” (Menschenwürde) in the U.S. federal constitution.
U.S. Constitution is written in simple English and is intended to be understood by the ordinary person.
Bold are terms already in the legal language (stuff I did not make up)
Italic or plain text are my translations
Vocabulary: These two are inexact.
Objektives Recht – Objective law ; Executory rights
Subjektives Recht – Vested Rights; Rights in personam
These are exact. Genau.
Materielles Recht – Substantive Law – Substantives Recht
Verfahrensrecht – Procedural Law
Formelles Recht – Formal law; Procedural Law
Positive Law – Geltendes Recht; Positives Recht
These are exact but are also my own translations of German terms.
Abwehrrechte – Freedoms from State power
Vornahmerechte – Affirmative Claims to state resources
Mitwirkungsrechte – Rights of political participation
Teilhaberrechte – Participatory Rights
Tonights lecture: Judicial Review
The U.S. and French revolutions were revolutionary because they brought back Aristotle’s idea of government by consent instead of government by divine right of kings.
the story of the rise of fundamental rights is the recognition of fundamental rights politically and then the legal implementation (Umsetzung) of the politically recognized fundamental right.
Why was there a revolution? U.S. Declaration of independence
The declaration is not “binding” law in the sense that it creates no rights or duties
but IS persuasive in that it explains Why the U.S. government was formed; it can be used as an aid to interpret other laws.
“Soft law” is not directly binding but has persuasive value.
1) Taxation – the colonies were only indirectly represented in London.
a) Lots of colonists were tax evaders, pirates, privateers.
2) Land expansion in the West. The British wanted to get along better with the natives so restricted colonization of the west.
3) Violent suppression of riots
4) Slavery is tough. The Crown opposed slavery. The industrializing Northern also opposed slavery. The rural agrarian South supported slavery.
a) This would later result in the U.S. Civil War.
Interestingly religion was Not one of the causes of the revolution. The principle of religious tolerance existed de jure (By law) in some of the Colonies (Rhode Island is the famous example) and de facto (in practice) in others (New York). The British crown had catholic colonies – Quebec, Maryland.
One key idea of the U.S. revolution was the idea that if the constitution is law then the ordinary laws are subject to the constitution.
This view of the relationship between ordinary law and the constitution did not prevail in England. In England the doctrine of parliamentary supremacy prevailed.
This is the issue of the “direct effect” of public law on private persons
The public law may have no effect,
indirect persuasive effect
or direct binding effect
and that effect may be between
two governing bodies
the state and the private law person
two private law persons
THIS ISSUE OF WHEN AND WHETHER PUBLIC LAW HAS EFFECTS ON PRIVATE LAW RELATIONS IS STILL A VITAL CENTRAL CONCERN OF LAW.
It is an open issue! Controverted!
In Germany, e.g. there is now the AGG.
SOURCES OF LAW AND HIERARCHY
Laws have a legal presumption of being consistent with each other
(Vermutung der Vereinbarkeit der verschiedenen Gesetze)
So, when interpreting laws, courts will always interpret them so as to be not in conflict.
Furthermore whoever wishes to argue that a law is unconstitutional must prove their case: when in doubt, whoever has the burden of proof loses.
Sometimes laws conflict with each other and courts cannot avoid facing the fact that two different laws are in conflict.
How to resolve the conflicts?
There is a hierarchy. (Einstufung)
U.S. Federal Constitution
Ordinary federal law and International Law are next and are equally ranked.
International law may be
-customary international law is directly effective
-international treaty law only has direct effect if ratified
-some treaties codify customary law. Vienna Convention, Convention on Rights of Child, Law of the Sea Convention
Ordinary federal legislation
State Constitution
State Legislation
Customary Law
Case Law
Case law (Rechtsprechung; Richterrecht) is properly speaking customary law. It IS a source of law.
What is Not in this list?
Legal scholarship. It is NOT a source of law.
General principles of law (Allgemeine Rechtsgrundgsätze) – are also not a source of law!
*Caveat: General principles of law and legal scholarship ARE sources of international law. So they exceptionally occur in Anglo-American common law.
Customary Law = Actual pratice coupled with sense of binding obligation.
Direct effect is the idea that a law creates enforceable rights. The entire story of constitutionalization of law is the finding a) that a right exists b) that the right is held by a certain person c) that the person who holds the right can enforce it.
Not all rights are held by persons!
Not all right are enforceable!
There is an international law against kidnapping (=abduction; Entführung): no State may kidnap any person.
States do sometimes kidnap people! Eichmann, Argoud, various terrorists.
Guess what? The right not to be kidnapped is NOT held by an individual. It is held by their State. Your only remedy if you are Eichmann is to beg the German government or the Argentine government to save you.
Further, not all rights are enforceable! Some rights are
a) programmatic — they set out a goal for the government
b) hortatory (Anspornend) — they inspire, exhort.
Hortatory and programmatic laws may however have persuasive value for the interpretation of other laws.
The story of constitutionalization starts with:
1) The question whether national public law (the constitution) can apply to private persons (Vertical direct effect of national law)
-the U.S. said “yes”
-Britain said no.
2) Then the question whether the national public law (the constitution) can apply to the relations of private parties inter se (Horizontal direct effect)
-the U.S. said “no” (No third party effect).
-Germany said “yes”
(Bundesarbeitsgericht: Unmittelbare Drittwirkung der Grundrechte;
BVerfG Mittelbare Drittwirkung der Grundrechte)
3) The current question is whether and when international public law — treaties — can have direct or indirect effects into national law.
a) Ius cogens — clearly yes
b) Customary international law — Yes in the U.S. and Germany and probably France
c) International treaty — direct effect only if so intended and ratified. May have indirect effect depending on the national law.
What is the origin of the State?
Organic/Historical Theory: ARISTOTLE
Family, Extended Family, Clan, Tribe, Polis, League of Polises
Seems historically tenable.
Per Aristotle:
-Man is a rational talking social animal, inherently curious
-Slavery is natural and good
-Happiness is the highest goal of life in political society. The object of the state is to attain the good life for all.
*”We do not allow a Man to rule but Rational Principle, for a Man decides in his Own interested — and thus becomes a Tyrant.”
–First idea of the rule of law State.
Contract Theory
-Requires capacity to contract
-How is will manifested?
-Why does contract bind succeeding generations?
-“State of Nature” (SON) never existed: Humans by nature are social and interdependent.
Hobbes SON – “poor, nasty, brutal and short”, a war of all against all, the law of the jungle, natural right to self defence
Citizens alienate right to self defence to a strong man. “a common power to keep them all in awe”.
Rousseau’s SON – primitive communism, instinctive, natural, comfortable, plentiful, no property. (influences Marx)
Locke’s SON – like the garden of eden, impoverished but peaceful.
Social Contract NOT historically tenable BUT corresponded fairly accurately to the U.S. colonial experience!
U.S. a “great experiment” “novus ordo saeclorum”.
*Multiracial (Natives, Europeans, Africans)
*Multinational (Britons, Germans, Dutch, Swedes, French)
*Several religions (various Protestant sects, Catholics, Jews, Natives)
*Secular State – because European religious wars caused European refugees to flee for their lives to the Americas.
*No Aristocracy – they thought about whether to have a king, (elected: for life tenure?) and decided not to.
*Limited Self Government – since the state is not a giant family it does not and cannot do everything
-Plenty of dictatorships still exist.
-Plenty of aristocratic states still exist.
*Freedom of Trade
All these things were revolutionary and led to the revolutions in France,(1789), Europe (1848), Russia (1917) and China (ca. 1920-1949).
Written Constitution, unlike Britain’s which was unwritten.
Thus: judicial review possible. This implies:
*Enforceable constitutional rights. Constitutional rights Not as political claims but as enforceable legal rights.
MODERNITY (NEUZEIT) IS THIS:
The replacement of war by politics, (negative sum)
the replacement of politics by law, (zero sum)
the replacement of legal conflict with economic trade. (positive sum)
Rise of Judicial Review (Revisionsverfahren)
The reason is because people’s lives and liberty are at stake, not just their property. Public law is the law of “go to jail” “go to war” “pay that tax” and so on. Thus, it is hotly contested.
Because the stakes are much higher and hotly contested the law itself is more conflicted.
I try to impose structure into this area of law in these ways:
1) Look at law as four branches: Public, Private, National, International
Our course is public national law, though we look to analogies from private national and public international law.
2) Structure the term “right”
“Substance” versus “Procedure” (Materielles Recht oder Verfahrensrecht)
“Substance” versus “Procedure” (Materielles Recht oder Verfahrensrecht)
“Rights to” versus “freedoms from”
Civil and Political Rights (Bürgerrechte)
Economic and Social Rights (Vornahmerechte)
*Objektives Recht – der Begriff leider gibt’s nicht im Englischen.
*Subjektives Recht – etwa “Vested right”) so
Vested
Executory
In personam
In rem
Hortatory
Positive (Positives Gesetz)
Natural (Vernunftrecht)
3) Hierarchize norms:
a) What is the source of the norm?
b) What is the purpose of the norm?
4) Impose a hierarchy of interpretion (Savigny’s four step “Waltz”)
5) Presumptions and burdens of proof.
6) Impose structure using the “general rule” versus “specific exception” distinction
7) Judicial parsimony
(“Nur entscheiden, was entscheiden werden muss; Achtung! Urteilstil! Nicht für Prüfung geeignet!)
8 Stare decisisis: i.e. the rule of precedent.
Sometimes I am confronted by the fact that
Public law is essentially more complex than private law.
It is.
The reason is because people’s lives and liberty are at stake, not just their property. Public law is the law of “go to jail” “go to war” “pay that tax” and so on. Thus, it is hotly contested.
Public law is essentially more complex than private law.
It is.
The reason is because people’s lives and liberty are at stake, not just their property. Public law is the law of “go to jail” “go to war” “pay that tax” and so on. Thus, it is hotly contested.
Because the stakes are much higher and hotly contested the law itself is more conflicted.
I try to impose structure into this area of law in these ways:
1) Look at law as four branches: Public, Private, National, International
Our course is public national law, though we look to analogies from private national and public international law.
2) Structure the term “right”
“Substance” versus “Procedure” (Materielles Recht oder Verfahrensrecht)
“Substance” versus “Procedure” (Materielles Recht oder Verfahrensrecht)
“Rights to” versus “freedoms from”
Civil and Political Rights (Bürgerrechte)
Economic and Social Rights (Vornahmerechte)
*Objektives Recht – der Begriff leider gibt’s nicht im Englischen.
*Subjektives Recht – etwa “Vested right”) so
Vested
Executory
In personam
In rem
Hortatory
Positive (Positives Gesetz)
Natural (Vernunftrecht)
3) Hierarchize norms:
a) What is the source of the norm?
b) What is the purpose of the norm?
4) Impose a hierarchy of interpretion (Savigny’s four step “Waltz”)
5) Presumptions and burdens of proof.
6) Impose structure using the “general rule” versus “specific exception” distinction
7) Judicial parsimony
(“Nur entscheiden, was entscheiden werden muss; Achtung! Urteilstil! Nicht für Prüfung geeignet!)
8 Stare decisisis: i.e. the rule of precedent.
THE PROBLEM WITH FUNDAMENTAL RIGHTS IS THAT THEIR EXTENT IS AMBIGUOUS
This is why we tried to distinguish rights as:
substantive
procedural
vested
executory
hortatory
in personam
in rem
civil and political (Bürgerrechte)
social rights (Vornahmerechte)
Why ambiguity?
Because the terms are general.
Because different private persons’ fundamental rights can conflict.
HOW TO GET RID OF AMBIGUITY?
1. LEGAL PRESUMPTIONS.
2. LEGAL HIERARCHY.
1) If it is possible to interpret federal or state legislation, the federal constitution, and internationally consistently then such an interpretation will apply.
It is only where there is an unavoidable conflicting interpretation where the court is compelled to choose that the hierarchy of law:
1. LEGAL PRESUMPTIONS.
2. LEGAL HIERARCHY.
1) If it is possible to interpret federal or state legislation, the federal constitution, and internationally consistently then such an interpretation will apply.
It is only where there is an unavoidable conflicting interpretation where the court is compelled to choose that the hierarchy of law:
constitution,
federal and international law,
state constitution,
state law
Is this even a personal right? If there is no right we don’t have to figure out its extent.
In principle the addressee of the federal constitution is the federation, not the states nor the people.
Thus, the fundamental rights listed in the bill of rights did not apply to the states
until the XIVth Amendment (Civil War).
*When does a fundamental right apply to the states?
It is the same question as whether the constitution applies overseas! Or to foreigners!
Public Private
National 1 2
International 3 4
Monism-Dualism
U.S. Monist as to customary international law
(custom = actual practice + belief such practice is legally binding)
U.S. Dualist as to treaties:
Unratified treaties do not have direct domestic effect.
Ratified treaties have direct domestic effect.
Treaties with direct domestic effect may also create rights among private persons (third parties)
*against the state (vertical direct effect)
*against other private persons (horizontal direct effect)
Direct Effect / Self Executing / Transposition
The German word for “elector” (as in “electoral college) is: Kürfurst. When the President is elected, the voters in each state vote for an elector, who pledges to vote for their choice. Each state organizes its own elections for the President. In practice, each state is “winner take all”. Each state has a number of electors assigned to it based on its population. This is why you can have a majority of U.S. persons voting for Gore, yet have Bush elected (See: Bush v. Gore, 531 U.S. 98 (2000)).
State parties to a treaty are first and second parties.
Signature of a treaty creates legal rights and duties between states as a matter of *international* law.
(horizontal effect)
U.S.A. ———— Germany
! !
! !
! !
! !
U.S. Citizen German Citizen / National
! !
! !
! !
U.S. Citizen German Citizen / National
(third parties)
There are several related separate questions, namely:
I. Is the treaty/constitution directly effective in national law?
A. If the treaty/constitution is directly effective in national law:
1) Does the treaty create rights between the state and the citizen? (Vertical direct effect)
2) Does the treaty create rights between citizens? (Horizontal direct effect)
If the treaty does not create directly effective rights and duties in national law,
or if the treaty does not create directly enforceable righs of private persons,
the treaty may nonetheless have indirect effect as a persuasive evidence of other positively binding rights. (Indirect effect)
Notice that whether it is a treaty or a constitution we are asking the same question! Does the public law instrument create binding rules? If it does, may individuals invoke the public law document to secure their private rights?
I.e. “Does Marbury have a right?” “If he has a right, can he enforce it?”
U.S. is monist as to customary international law.
1. Customary international law is directly effective before U.S. courts.
U.S. is dualist as to treaty law.
2. As a general rule, Exceptionally, some treaties are transposed into domestic law. Ordinarily a treaty does not create rights or duties which may be enforced before U.S. courts by private persons.
The U.S. regards the U.S. constitution and ordinary federal legislation as hierarchically superior to international law.
One can make a good argument however that the ordinary legislation of the several states is inferior to international law because of the nearly exclusive federal power over international relations.
At the same time, one can argue that the constitutions of the several states are superior to international law, because the several states were international legal persons prior to the constitution of 1787.
However:
1) All laws are presumed to be coherent and not in conflict. Whoever wants to argue that laws are in conflict bears the burden of proof that they are and if the laws can be interpreted in a non-conflicting way the court will interpret them not to be in conflict.
2) These questions are rarely litigated due to the “political question” doctrine. They are often considered non-justiciable. That’s because the federal government, specifically the presidency, has nearly exclusive power over foreign relations.
Some people see international society as a “state of nature” — the law of the jungle (terrible!) — that is less and less the case because of the U.N. and a vast network of international treaty law.
TYPES OF RIGHTS/FREEDOMS
Fundamental human rights had often been seen as political claims, not as legally enforceable rights.
Political claims in a democracy are enforced at the ballot box – by voting.
“Declaration” or “Resolution” means *non binding*. No one who wrote the French declaration of rights of man thought that they were creating legally ence of rights, and can be and are invoked as a guide to the extent of other positively enforceable legal rights.
Hortatory (Anspornsrechte)
License (Erlaubnis)
Executory (etwa wie eine Anwartschaft)
Vested (sicher begründete Rechte)
Fundamental freedoms from State action (Civil and Political Rights) (Abwehrrechte; Freiheitsrechte)
Positive claims to state resources (Economic and Social Rights)
Civil Rights (Bürgerrechte)
Rights in Personam
Rights in Rem (Sachenrechte)
STRUCTURE OF THE GLOBAL LEGAL SYSTEM
National Law — International Law
private law
——————————————–
public law
STRUCTURE OF THE U.S. FEDERAL SYSTEM
Executive — Legislative — Judicial
Federal
………………………………………..
State
In this course we are mostly looking at conflicts between the branches or between the federal and state governments and at conflicts between individuals and the state or federal government.
STRUCTURE OF ARGUMENTS
Text (what does this term mean? what does this term Not mean?)
Grammar, Structure (Context)
Legislative History
Teleology (what would this lead to? where do we want to go)
THEORIES OF LAW
Conceptual jurisprudence (Begriffsjurisprudenz)
-deduction of legal will from the legal code
-rules
-conditionals “if … then”
Legal process interest balancing (Interessenjurisprudenz)
-standards, norms, policies
-interest balancing (Interessenabwägung)
*identify interested parties (plaintiff, defendant, state, stakeholders)
*identify competing interests
*evaluate interest, i.e. assign a “weight” ($) to the interest
*compare the competing interests
Creative Legal Arguments
*History
*Economics
*Legal Theory
*Comparative Law
Reductio argument: “Look what it would lead to” – counterfactual reasoning (“imagine”)
Law is split into four quadrants:
Public — Private
National
International
This is related to two questions:
1) Does the (public)(international) law apply domestically (Anwendbarkeit)
2) Can the (public) (international law) be enforced by private persons? (Unmittelbar) or instead only by States (Mittelbar).
Unmittelbare Anwendbarkeit in English is
Direct Effect.
This question is more often referred to in U.S. law as “the State Action doctrine” or “the color of law”.
The law of state organization is public law. Thus, in principle, it governs the relations of public law bodies.
To structure our own thinking — which makes our arguments more persuasive — we make the doctrinal (=Rechtsdogmatik) distinctions public/private national/international.
stare decisis – precedence rule (Präzedenzfall – Richterrecht): In common law judges “expound” the customary common law (custom = actual practice + belief the practice is legally obligated or permissible). Cases are analogized to each other (case A is like case B so the same rule 1 which governed case A should govern case B) or distinguished from each other (A is NOT like B for these reasons… and so rule 1 which applied in case A may not apply to case B.)
As well as teaching you law, I am trying to teach you how to think creatively about law: part of that is “counterfactual” reasoning. “What would it lead to”. “What if”.
Read everything you can, but especially read those things which you are curious about.
I. the plain text (plain meaning, Wortlaut des Gesetzes) to
II. context (grammar and structure), then
III. legislative history (Rechtsgeschichte, Travaux préparatoires) and ends with
IV. teleology – the purpose of the law (sinn und Zweck des Gesetzes).
We can contrast vested rights with executory rights. An executory right requires further action to vest. For example, I have an executory right to my pay, which vests when I finish lecturing this semester and fill out my time sheets.
We can also consider hortatory rights (Anspornsrechte). The hortatory right is not binding. It is a desired social goal. But even though a hortatory right creates neither vested nor executory rights it may be used in the interpretation of other rights.
We can also consider hortatory rights (Anspornsrechte). The hortatory right is not binding. It is a desired social goal. But even though a hortatory right creates neither vested nor executory rights it may be used in the interpretation of other rights.
Customary international law has two elements: actual practice and the belief that such practice is legally binding. Hortatory rights may be evidence of the opinion that an actual practice is legally binding. Hortatory rights may also be used for the interpretation of other rights: the hortatory right may show us the purpose of the law; remember that when interpreting a statute (=Gesetz) we look first at
The literal text (Wortlaut des Gesetz).
then the context (Grammar and structure; flanking laws)
then the legislative history
then the goal of the law (teleology) (Sinn und Zweck des Gesetz).
The literal text (Wortlaut des Gesetz).
then the context (Grammar and structure; flanking laws)
then the legislative history
then the goal of the law (teleology) (Sinn und Zweck des Gesetz).
Fundamental human rights had often been seen as political claims, not as legally enforceable rights.
Political claims in a democracy are enforced at the ballot box – by voting.
“Declaration” or “Resolution” means *non binding*. No one who wrote the French declaration of rights of man thought that they were creating legally ence of rights, and can be and are invoked as a guide to the extent of other positively enforceable legal rights.
U.S. Declaration of Independence only has one positive legal effect: the establishment of the United States’ claim international legal personality.
However, the Declaration of Independence is persuasive evidence of law; it tells us goals and purposes of the United States (“life, liberty, and pursuit of happiness”).
The U.S. Articles of Confederation created a confederation: confederations are not permanent. They can be an international legal person. Confederations are
the forerunner of international organizations. Int. Orgs did not exist under international law until 1919 at earliest but by 1945 were clearly a part of
international law. One may call the U.N. *either* a confederation (my view) *or* an international organization (the majority view).
Member States of a confederation may withdraw from the confederation. Confederation is not perpetual. In contrast, federation is perpetual and Member States may not withdraw from it.
The Rise of Fundamental Rights as Legally Enforceable Claims:
Effect of Judicial Review:
1) Non-enforcement of a right (no determination of constitutionality or unconstitutionality; rather, that the right, while it may exist, is unenforceable)
2) Declaration that an entire legislative act is void
3) Declaration that a *specific provision* of the law (e.g. “§3(c), only” is void
4) Determination that the law is unconstitutional and will not be applied until amended.
Hierarchy of Norms
Federal Constitution
Ordinary Legislation – International Law
–Customary International law=directly effective=unmittelbare Anwendbarkeit
–Treaty Law – Must be ratified. Not directly effective.
State Legislation
Sources of National Law:
Legislation
Customary Law = Actual practice + Sense of legal obligation
Case law — case law is supposedly expressing customary law
International Law
Treaties = Conventions (Abkommen, Verträge)
– not directly effective (Unmittelbare Anwendbarkeit)
Customary Law = Gewohnheitsrecht
– directly effective
Separation of Powers – Gewaltenteilung
*Executive
*Legislative
*Judicial
Links to HR organizations
Plagiarism – Footnotes!
Plagiarism is the unattributed use of others works. When you use texts of others, whether quoted or paraphrased, you Must indicate such with a footnote. The footnote shows you have done your research and are not copying others work wrongly. Footnoting is good! Copying texts is ok, but Only if you indicate it with a footnote.
We are teaching you how to think; we are not teaching you what to think. We want you to learn to think for yourself, to think independently, to think creatively and critically. Yes, we expect and hope you will read and refer to other authors – explicitly! You Must say when you use any other author’s text. There’s nothing to hide. We understand how difficult it is to write in a foreign language. It’s ok to quote other’s texts, even extensively. But, such uses of others texts must be cited with a footnote. It’s only fair.
When you use any other author’s writing without citing it with a footnote it is as if you were trying to present someone else’s original work as your own. It’s not fair to that author. It’s also not fair to your reader – your reader will want to know where you got your ideas from, which other authors you read – and are responding to.
Because plagiarism is like stealing it is a serious academic offense. I know you will want to use other author’s texts. That’s fine it’s even expected and desired. BUT you Must tell us you did so – and that’s what footnotes are for. They show us you have done your research, have read and thought about other others.
The footnote should be as follows:
Author’s First name and last name, a comma, the title of the work in italics, a way to find the work, the page or pages the cited source comes from and the year of publication, a period. Then, “Available at” and a url if possible. So, for example:
Eric Engle, My Next Great Idea, 1 Journal of Law and Economics, page 17 (2010). Available at: http://lexnet.com/my-next-great-idea.htm
The footnote should be sufficient so that I or your reader can locate the original text.
If/ you have lost the source, you should indicate as much of the source as you recall. An imperfect footnote is much much better than no footnote!
presents detailed rules – including examples! – of how to cite to legal sources in U.S. Style
presents detailed rules – including examples! – of how to cite to legal sources in British Style
they are similar but not the same. Please format your footnotes in either of these styles. You should choose the style based on whether you wish to try to publish your work in the U.S. or Europe, respectively.
shows how to cite to E.U. Laws.
You want your footnotes to be as proper as possible because editors at law journals will judge your work a bit based on the quality of your footnotes. No editor wants to reformat your footnotes. But an imperfect footnote is so much better than no footnote. It’s the difference between “acceptable” (a bad footnote) and “unacceptable and thus failure” (no footnote).
Most all of your life you have been told What to think. Anyone can memorize. We do not tell you what to think but How. That’s what we are looking for, and why plagiarism is common, yet unacceptable. It’s common because 1) someone else has thought of this 2) the grammar is so hard 3) it doesn’t seem like a big deal, people copy all the time. But it is a big deal, because we need to know where you got your nice text from, to be fair to other authors, and so you don’t appear to be stealing other’s ideas and presenting them as your own.
Citation is also important because Courts will Not “just take your word on it”. The Court Must have good law, must know where the law is which you are relying on!
Prelaw Links
Videos, Legal Information Institute
These videos are optional material you may find useful/fun.
Caveat: This site==> http://www.youtube.com/user/Lawschoolsuccess is not good. It’s only a giant advertisement (Werbung). Ignore that site.
Caveat: This site==> http://www.youtube.com/user/Lawschoolsuccess is not good. It’s only a giant advertisement (Werbung). Ignore that site.
HOW TO BRIEF CASES
Rememeber, in case briefing we are looking for the facts, the rule.
http://www.youtube.com/watch?v=feucSsK_L50
This is good because he points out the link between briefing the case and the IRAC formula.
This is also about case briefing , it might be easier to follow since it is also in writing:
http://www.youtube.com/watch?v=lH1XkaFD2C0&NR=1
I sent this IRAC link in the mail earlier, I think it’s good.
http://www.youtube.com/watch?v=g6KOsHYiL3k&NR=1
This isn’t the IRAC link I sent earlier but is also good
http://www.youtube.com/watch?v=NtLV_0HRLB4
This one is good: NO CONCLUSORY REASONING show me the Reasons not just the Outcome!
http://www.youtube.com/watch?v=An-1xWBRLmM&NR=1
IRAC — I dont think this is good but you might disagree.
http://www.youtube.com/watch?v=BfcUay1xx2U&feature=related
this site^ has 2 others on irac http://www.youtube.com/user/JonesCollegeJAX
http://www.youtube.com/watch?v=FvuiFoO3Ulc
Corporation – This one is definitely relevant for my corporation course.
http://www.youtube.com/watch?v=cY2EhEYbk1U&feature=related
Affidavit – YouTube – This one is generally relevant.
http://www.youtube.com/watch?v=fT4DrWTYQD0&NR=1
Reading Cases Guide – YouTube — It’s ok, but only that.
http://www.youtube.com/watch?v=LlvGCAkM3XQ&NR=1
Legal Writing Skills Module 3: WRITING AND REFERENCING – It’s ok, but only that.
http://www.youtube.com/watch?v=KXHx5xcB6C4&NR=1
pols424: reading cases – It’s ok, but only that.
http://www.youtube.com/user/LawStudySystems#p/u
Consideration (Contracts) – Not relevant to either of my courses but really well done.
I wrote these search engines while at Harvard
http://www.law.harvard.edu/students/orgs/hela/searchengines.html
The world legal information institute http://www.worldlii.org/
has links to free online law from a variety of jurisdictions.
As of yet there is no E.U. or German L.I.I.
I would like to build one.
This link
https://docs.google.com/viewer?a=v&pid=explorer&chrome=true&srcid=0BwMRRQXBqVxjNWY1ZDk3YjUtOWE3MC00YzliLTg1NTAtODk5M2M0MzU4YTdm&hl=en_US
contains documents which indicate English, E.U., French, and German legal citation formats.
This link
http://www.law.cornell.edu/citation/
gives you the format for U.S. legal citation.
Enjoy! :S 😉
https://docs.google.com/viewer?a=v&pid=explorer&chrome=true&srcid=0BwMRRQXBqVxjNWY1ZDk3YjUtOWE3MC00YzliLTg1NTAtODk5M2M0MzU4YTdm&hl=en_US
contains documents which indicate English, E.U., French, and German legal citation formats.
This link
http://www.law.cornell.edu/citation/
gives you the format for U.S. legal citation.
Enjoy! :S 😉
Corporations and Human Rights
How to Read a Balance Sheet (The Non-Boring Version)
Understanding Annual Reports
Common Valuation Ratios | P/E Ratio
Investment Valuation Ratios: Price/Earnings Ratio | Investopedia
Price–earnings ratio - Wikipedia, the free encyclopedia
Debt-to-equity ratio - Wikipedia, the free encyclopedia
Return on capital employed - Wikipedia, the free encyclopedia
Eric Engle, Corporate Social Responsibility (CSR): Market-Based Remedies for International Human Rights Violations? 40 Willamette L. Rev. 103 (2004). Available at: {}shttp://amor.cms.hu-berlin.de/~engleeri40WillametteLRev103.htm
Cite as: Eric Allen Engle, What You Don't Know Can Hurt You: Human Rights, Shareholder Activism, and SEC Reporting Requirements 50 Syr. L.Rev. 63 (2006). Available at: http://amor.cms.hu-berlin.de/~engleeri <b>Citation:</b> Eric Allen Engle, What You Don't Know Can Hurt You: Human Rights, Shareholder Activism and SEC Reporting Requirements, 57 Syracuse L. Rev. 63 (2006). Available at: http://amor.cms.hu-berlin.de/~engleeri57SyracuseLRev63.htm
U.S. Corporate Liability for Torts of (Foreign) Subsidiaries by Eric Engle :: SSRN
Cite as: Eric Engle, Extraterritorial Corporate Criminal Liability: A Remedy for Human Rights Violations? 20 St. John's J. Legal Comment., 287 (2006). Available at: http://lexnet.co.cc/corporations/20StJohn'sJLegalComment287.htm
Eric Engle, I Get By With A Little Help From My Friends. Understanding the UK Anti-Bribery Statute, By Reference to the OECD Convention and the Foreign Corrupt Practices Act 44 Int'l Law. 1173 (2010). Available at: {}shttp://amor.cms.hu-berlin.de/~engleeri44Int'lLaw1173.htm
Green Taxation and the EU
Eric Allen Engle, Universal Human Rights: A Generational History, 12 Ann. Surv. Int'l & Comp. L. 219 (2006).
A Social-Market Economy for Rapid Sustainable Development by Eric Engle :: SSRN
Beating bribery: Small change | The Economist
WTO Proposes Slavery for Africa | The Yes MeWe will be covering a lot of material in this module and just about all of it is useful.
The “strategic” goal of the module is to understand how the rule of law can be generated through corporate activity. The “tactical” learning objectives are:
I.
How to read a company balance sheet.
Accounting methods (GAAP)
How to objectively value a company (ratio analysis)
II.
Understanding the legal structures of a business
-Capital structure (Debt, Equity)
-Governance Structures
–Boards of directors
–Shareholder’s meetings
III. Corporate Governance
A. Soft governance
1. Resolutions
2. “Soft Law”
3. Human rights
4. Corporate Compliance
B. Hard Governance
1. Tort law
2. Criminal law (economic crimes)
3. Taxation
https://www.daad.de/deutschland/studienangebote/international-programs/en/
http://www.e-fellows.net/KARRIEREWISSEN/Job-Skills/Business-Englisch/Trainiere-dein-Hoerverstehen
http://www.greenpeace.org/africa/en/News/news/Exposed-Illegal-Fishing-in-West-African-Seas/
Research Sources for Your Paper:
http://www.scholar.google.com
http://www.ssrn.com
Syllabus
Constructivist learning theory:
Introductions:
-Who has a weblog? (blog)
Teamwork?
Final exam or Final paper
Exam will have 1 essay 10 multiple choice. You can earn a passing grade with 10 correct essay answers and no essay, or a great essay and 0 correct multiple choice answers.
(number essay answers correct*10 + essay grade on scale of 1-100)/2 > 65% = pass.
Abbreviations:
HR = human rights
FP = foreign policy
LEGAL TYPOLOGY
Freedom from / Right to
Negative rights / affirmative rights
Procedural/Substantive
civil and political rights
economic, social, and cultural rights
HR and rule of law
vested right, executory right, claim
4 basic rights in EU – free movement of good, workers, capital, services.
relationship between national constitutional rights and international human rights
Are HR a “sword” or “shield” in FP?
TOPICS
Children’s Rights
Women’s Rights
Rights of Racial Minorities
Rights of Religious freedom
LGBT Rights
Right to Food
Right to Life
Right to Travel / Immigration
India – Capital punishment, right to food, GMO seeds, pesticides?
Trade/Business and human rights: sanctions? Does human rights observance give an advantage to business trade? Does HR implementation create a good business climate? Does HR observance result from a good business climate?
Refugees:
https://uk.news.yahoo.com/calais-migrant-claims-travel-uk-111742031.html#nlsALAz
NGOs:
https://www.amnesty.org/en/who-we-are/
http://www.banktrack.org/
https://www.hrw.org/
http://www.osce.org/
http://www.dw.com/en/quadriga-refugees-welcome-in-germany-2015-07-30/e-18573092-9798
Videos:
Institute for Cultural Diplomacy: https://www.youtube.com/watch?v=BkzI7CrrHfI
Germany and HR: https://www.youtube.com/watch?v=Ee8YyHNHWOo
HR in Germany (lecture six parts) https://www.youtube.com/watch?v=hDq7EAL_V-Y&list=PLSLiIwG5ylcU1HSfepjT6lfU9Mx2cVvOs
HR and U.S. foreign policy since 2000: https://www.youtube.com/watch?v=Ee8YyHNHWOo
“A tale full of sound and fury, signifying – nothing”? Criticism of implementation of German human rights policy.
https://www.youtube.com/watch?v=j-EN-8aNPf4
HR Watch
https://www.youtube.com/user/HumanRightsWatch
Germany and HR:
German President Gauck on HR:
https://www.youtube.com/watch?v=E0hThZR5HR8
The German Presidency is a basically symbolic post, more or less like the UK Queen or Canada’s Governor General. The person holding that post is meant to symbolize German unity and good values.
German Foreign Office (=State Department) on human rights (in English):
http://www.auswaertiges-amt.de/EN/Aussenpolitik/Menschenrechte/Uebersicht_node.html
Germany’s Human Rights Commissioner Strasser on HR in English:
http://www.auswaertiges-amt.de/EN/AAmt/Koordinatoren/MR-Koordinator/Uebersicht-MRBeauftragter_node.html
Business and Human Rights in Germany:
http://www.auswaertiges-amt.de/EN/Aussenpolitik/Aussenwirtschaft/Wirtschaft-und-Menschenrechte/Uebersicht_node.html
German Foreign Minister Steinmeier on human rights and business:
http://www.auswaertiges-amt.de/EN/Aussenpolitik/Aussenwirtschaft/Wirtschaft-und-Menschenrechte/Wirtschaft-und-Menschenrechte.html
German Issues
Holocaust
In popular imagination the holocaust is monolithic and tragic: factories of death, kill ’em all. Reality is more complex than that.
In popular imagination the holocaust is monolithic and tragic: factories of death, kill ’em all. Reality is more complex than that.
http://prorev.com/wannsee.htm
http://rationalwiki.org/wiki/Himmler_on_the_execution_of_Jews
http://www.unhcr.org/40f2bb884.html
http://www.bamf.de/EN/Migration/AsylFluechtlinge/asylfluechtlinge-node.html
Judicial review
https://www.germanlawjournal.com/pdfs/Vol09No10/PDF_Vol_09_No_10_1267-1296_Articles_Oster.pdf
Integration of new citizens
http://www.migrationpolicy.org/article/germany-strives-integrate-immigrants-new-policies
http://www.make-it-in-germany.com/en/for-qualified-professionals/living/integration-courses
Lampedusa:
Philosophical Questions about Human Rights (Law)
Define:
democracyhuman rights
rule of law
economic productivity
democracyhuman rights
rule of law
economic productivity
What relationship if any is there between
democracy
human rights
rule of law
economic productivity
What is the right? Who has the right? Against whom may they enforce the right?
Scholarly Commentary About human rights laws
This page is for documents which are not laws, but which discuss laws.
http://www.constitution.org/jl/2ndtreat.htm
http://oll.libertyfund.org/titles/359
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1020464
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1424691
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2344333
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2319175
http://www.constitution.org/jl/2ndtreat.htm
http://oll.libertyfund.org/titles/359
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1020464
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1424691
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2344333
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2319175