Moral Culpability and Institutional Violence

I got to thinking after talking to my friend David. We were discussing LeGarrette Blount, the Oregon running back who punched a Boise State player after a game Oregon lost--specifically, whether he should be suspended for the entire season, as was initially stated by Oregon, or if he should be reinstated after a few games, as Ducks coach Chip Kelly is now saying he'll do if Blount meets certain conditions.

David was arguing that "you have to admit that there is a hypocrisy in kicking him off the team and essentially ruining his professional football career (which he would certainly have had) because he punched somebody--that we allow these kids to knock each other around for 3 hours, then tell them they have to be peaceful little angels as soon as the game is over seems silly to me." In the context of Blount, I think David's right. The infraction was relatively minor and Blount should be allowed to play after a mandatory suspension and meeting the conditions his coach sets--no need to suspend his entire season and destroy his chances of playing pro ball.

But the broader question implied by David's argument is whether, if an institution encourages certain kinds of violent behavior, does this reduce the culpability of an individual who then commits an unrelated violent act?

One way to analyze this might be along the level of violence, including both intrinsic and institutional violence. Intrinsic violence refers to the level of violence in the act itself, for example murder or rape as opposed to a relatively minor crime/tort like assault and battery. Institutional violence means the violence in the institution an individual is participating, such as military unit or a football team. Comparing low and high institutional and intrinsic violence levels yields four scenarios (fig. 1).

Institutional violence
Intrinsic | Low/High "B" | High/High "D" |
Violence | Low/Low "A" | High/Low "C" |

The example David and I were talking about--one person punching another (relatively low intrinsic violence), when they are both football players (relatively low institutional violence), falls into the lower left hand quadrant, Scenario A.

Scenario B would be like a soldier who gets in a fight at a bar.

Scenario C would be a football player committing a major crime--such as murder or rape.

Scenario D would be a soldier committing a major crime.



I think this actually opens up quite a few questions. What do you guys think?

• To what extent should football players and/or soldiers be held to a different standard, as a result of their institutional training, which teaches them to be violent? Should the standard be one of reduced or increased culpability?



• It's clear that a soldier murdering another person, totally unrelated to his military service, should be classified in D. But how would you classify a soldier killing an enemy combatant? Is it low intrinsic violence, because killing an enemy combatant isn't "wrong" in some important sense? Low institutional violence, because it is expressly condoned, even encouraged by the institution? Or is it simply another Scenario D--the fact that the person being killed is classified as enemy having no bearing on the culpability of the killer?



• When comparing Scenarios A and B, who has less culpability--the football player or the soldier? Does the solider have less, because the institution is more violent and so it is more "expected" to cause ancillary violence? Or should the soldier be held up to a higher standard, because his violent institution also emphasizes discipline--that because he is trained to use a great deal of violence and force, it is even more important that he only use it in a proper way?



• Does anyone think there might be a different model to analyze this than the four scenariosI laid out?

I know this is pretty long-winded and abstract, but thanks for reading if you got this far. Let me know what you think!

Arlen Specter's Proposed Vicarious Fraud Liability Law Is Fundamentally Unfair

Going Concern reports that Arlen Specter supports a law which would attempt to overturn the Supreme Court precedent set in Stoneridge Investment Partners LLC v. Scientific-Atlanta Inc. and Central Bank of Denver v. First Interstate Bank of Denver. Specter's proposed bill would allow the imputation of civil liability for an intentional act such as fraud, when the person to be held liable had no intent. In so doing, it threatens to make an innocent party pay for another's bad acts.


"Substantial assistance" in merely providing otherwise legal professional services, without notice of or direct participation in the fraud is not sufficient to meet due process requirements. One of at three situations should be present before liability could attach: Actual or constructive notice that the fraud was occurring; violation of the relevant state's code of professional ethics; or a direct undertaking with the intent of committing or furthering a fraud. There must be a foundational requirement that is satisfied before indirect liability can be imposed in. Especially since we are dealing with a malicious act, like fraud, which requires intent--it doesn't make sense to impose vicarious liability on a party which lacked any form of malice, intent, or even knowledge. Perhaps a negligence standard would be appropriate. Even then, the negligence would have to have been about the fraud itself--i.e., if it would have been reasonable to make further inquiries when something seemed a bit off, or if there was actual notice that fraud had occurred--maybe then liability could attach. At any rate, imposing strict liability on professionals who happen to work for crooks--and extremely convincing crooks at that--creates a fundamentally unfair burden, and one that would have serious chilling effects on business.

Senator Specter would be wise to remember that the lawyers, accountants, and others who worked for Mr. Madoff and Mr. Dreier, were defrauded just as everyone else was--bilked out of millions in fees for services provided, and many of them were investors as well. Further, many good people doing solid work without a clue that they were operating a ponzi scheme are now unemployed. The great evil of both Madoff and Dreier is that they fooled everyone. It would be fundamentally unfair to impose a further burden on indirectly related parties who do not bear culpability, and frequently have also been harmed by the fraud.




Source: http://goingconcern.com/2009/08/arlen-specter-not-pandering-to.php

The Nexus of Public and Private in Foreign Direct Investment: An Analysis of IFC, MIGA, and OPIC

My student note from law school:


Abstract:

This Report provides an exposition of the most recent activities of three of the most important public supporters of foreign direct investment (“FDI”): the International Finance Corporation (“IFC”), the Multilateral Investment Guarantee Agency (“MIGA”), and the Overseas Private Investment Corporation (“OPIC”), with a focus on their regional and sectoral investment patterns. While not a panacea to the incredible challenges in achieving reductions in poverty, FDI is an essential element in the overall strategy to ensure successful, sustainable development. It is also an element that, especially in the least developed countries (“LDCs”), has suffered from consistent underperformance.

Part I will provide a background, including a sketch of relevant theories underlying the international law of development (“ILD”), examining their origins and content. It will then discuss FDI as a method to achieve sustainable development, and the unique problems of risk and accountability that are associated with it.

Part II will address existing sources of public support for private sector development through FDI. It will discuss the IFC and MIGA, the private sector branches of the World Bank. It will then look at OPIC, a United States government agency that addresses development in a similar manner.

Part III will examine the three agencies’ most recent activities, with a focus on their annual reports. It will provide regional and industry breakdowns of each agency’s portfolio and evaluate the regional and sectoral exposure of the agencies in light of the concerns of the ILD.


Available on Lexis or Westlaw as 32 Fordham Int'l L.J. 1698.

Page proofs available here: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1444193

Measurement Methodologies for Legal Empowerment of the Poor

Abstract:

In the summer of 2008, following the launch of the Commission on Legal Empowerment of the Poor’s final report, UNDP began to address the specific recommendations of the Report. The question of measurement was a major recurring question. This paper draws on existing methodologies and theoretical frameworks and argues that a narrowly defined, subject-centric approach to measurement of legal empowerment is key to the monitoring of progress towards legally empowering the poor. It argues that broad macroeconomic indicators and top-down assessments are fundamentally incapable of examining important aspects of legal empowerment, and that only by seeking the immediate experiences of those who are the subject of empowerment can we begin to identify the most important barriers to development and analyze their causes.

The complete paper may be found at the UNDP's Oslo Governance Center Website: http://www.undp.org/oslocentre/docs08/Measurement-Methodologies-for-Legal-Empowerement-of-the-Poor.pdf

It is hosted at: http://www.undp.org/oslocentre/overview/legal_empowerement_poor.html

Cite as: Adam L. Masser, Measurement Methodologies for Legal Empowerment of the Poor (UNDP Oslo Governance Center 2009).

How to Get a Job at the UN

A friend recently send me an email asking how I got my internship athe UN, so I thought I'd share it with a wider audience The text follows, slightly edited:

Hey man,

Yeah it was really an amazing experience and I'd highly recommend anyone who can get an internship at the UNDP to take one.

Getting it was a bit tricky and took some luck and a lot of persistence. It began at fall On Campus Interviews ("OCI") 2007, at the beginning of my second year at Fordham Law. I skipped 2007 OCI to stay an extra week in Paris, where I was working at the OECD, at the end of my 1L summer. Working at a law firm wasn't something I thought I wanted to do at the time, so I was intent on doing another public interest summer. At any rate, throughout almost my entire second year, I didn't have a job lined up for the summer. Since I knew most application deadlines hadn't even passed, I wasn't nervous--feeling pretty confident I would find something good. I applied to the UN, the World Bank, the IMF, the US Dept. of State, IFC, OPIC, and MIGA, as well as countless other NGOs, IGOs, and GOs.

During my second year, I took three classes with professor Galizzi: International Law of Development, an independent study, and MDG: Ghana, the course that brought me to Ghana for 3 weeks. For the two classes with a lecture component, there were a few guest lecturers, one of whom, Naresh Singh, was the executive director of the Commission on Legal Empowerment of the Poor, an independent commission that was hosted by the UNDP. I volunteered to help out on the UNDP side for the 5th Commission Meeting, spring semester of my second year at Fordham Law. I used this as a networking opportunity--I got to know Naresh quite well and he introduced me to several people, one of whom, Maaike DeLangen, was eventually designated as the person at the UNDP who would be receiving the commission report and start implementing it.

I asked Maaike if she was interested in having an intern. She said she hadn't thought about it, but was open to the possibility. I sent her my resume, a cover letter, and some other supporting documents. She interviewed me, basically told me I was hired but that she had to check with the hierarchy at UNDP. She found out there were some UN internship rules which had to be complied with. The rules stated Maaike had to announce the internship position and receive other applications. I was really anxious at this point, because time was getting short: it was mid April and I STILL didn't have a summer job for my 2nd summer. Maaike eventually got back to me and told me I was hired, after which there was a great deal of paperwork because the UN has so much bureaucracy. The job was very interesting, challenging, and eye-opening. Maaike ended up being a really great person to work with.

And that is the story of how I got my internship at the UNDP.

Take it easy bro.

~a

How to Save the Auto Industry, the American Economy, and the Planet: A Ten Step Plan

1) Nationalize Chrysler and GM. They have received huge sums of government money and are about to fail. The reason we have attempted to save these two companies is not for the managers or the shareholders, but for the American economy as a whole, and the job loss that would result. To that end, it makes more sense to nationalize those industries and ensure that they can provide jobs, rather than continue to reward the management of these companies, who have utterly failed to present a coherent vision of the future. Their management is extremely poor, yet they are vital to the economy. It would be far better to nationalize these industries and turn them to the good of the American People than to let them crash and burn, taking out the American economy. Further, in the case of a clearly failing company, nationalization isn't even economically harmful to the shareholders and owners--regardless of nationalization, they are set to lose all value.

2) The nationalization should proceed through Congressional creation of a Parastatal Corporate Structure ("PCS"). The PCS would consist of a now-existing or newly created Executive Agency("EA") which will act as the "Board" of the Nationalized Companies ("NCs"). In its capacity as the Board, the EA will hire individuals for high management positions, such as CEO, CFO, COO, Legal Counsel, and other upper-level management. The Management will in turn implement the policies directed by Congress and the EA in order to achieve the goals of the Nationalization: economic stimulus, job creation, environmental protection, and debt and trade deficit reduction.

3) Once nationalized, Chrysler and GM should be directoed to produce electric vehicles, hybrid vehicles, and other high fuel economy vehicles("HFEVs") exclusively. They should use the technology available, right now. The increase in sales volume of the products required for assembly of HFEVs will lead to better economies of scale, and lower prices for both production and final sale price.

4) The majority of the profits should go towards further research and development into green technology. This can occur both within Chrysler and GM and the United States as a whole, through grants to research projects and tech startups with promising proprietary technology they want to attempt to commercialize. Until such time as there are profits realized, the U.S. government should invest sufficient amounts of capital to the country-wide research project in order to spur the technical and manufacturing innovation required to get us out of the recession.

5) Any later profits, in an amount to be determined by Congress or the EA should be applied to service and reduce the enormous U.S. debt.

6) Ford, and other profitable carmakers, should not be nationalized. Only companies which are vitally important to the U.S. economy and are funadamentally flawed and unprofitable require the drastic step of nationalization.

7) Private market and capitalist fundamentals should still apply--and, in fact, the government should do its best to encourage competition with the state-owned car companies. The should achieve this by freely licensing Intellectual Property Rights ("IPRs") on the fruits of the research to any U.S. entrepreneur who will create jobs in the United States. The IPRs would spur competition, and allow the companies that are best able to organize to make parts or entire vehicles would always be capable of using the best research in the world. In doing this, we would create a vibrant and cutting edge industry able to comepte with carmakers around the globe, and being to increase our exports and reduce our trade deficit. The release of new, high quality IPRs into the American economy will lead to a real addition of value--that much freely licensed and readily available technology will do a great deal to spur innovation and provide opportunities for entrepreneurship.

8) Free licensing of the research is the key, allowing the American auto industry as a whole to move in a more eco-friendly and energy independent direction favored by most Americans. Essentially, Chrysler and GMs earning potential should be harnessed to provide the surviving automotive companies--i.e., Ford and the parts manufacturers--with the cutting edge technology they need to succeeed in a global market.

9) Once the NCs are profitable, they should be returned to the private sector. They should be restored to the stockholders at this time--the nationalization of the companies is an abrogation of their rights--it is, however a constitutionally legal one coming at a time of great crisis. This does not mean, however that the stockhodlers should receive any loss greater, or more permanent, than is required in order to serve national interests. THe goal of stimulating the U.S. economy and preserving jobs achieved, the industries should be returned to their erstwhile owners to elect a new board of directors and drive onto a new course, the road paved by the economic improvements over the duration of the nationalization period.

10) This plan will allow us to save the auto industry while saving and creating jobs, all while investing in a green future and reducing the national debt and trade deficit. It will also promote the kind of intellectual property advantage the United States has had in previous eras and help to provide for a long term healthy and competitive private market. It will advance numerous goals of the United States and should be implement post-haste.

This idea I had once.

http://cooperationstudy.wikidot.com