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The Liberty to Spy
Get PDFMany, if not most, international legal scholars share the ominous contention that espionage, as a legal field, is devoid of meaning. For them, any attempt to extrapolate the lex lata corpus of the International Law of Intelligence (ILI), let alone its lex scripta, would inevitably prove to be a failed attempt, as there is simply nothing to extrapolate. The notion that international law is moot as to the question of if, when, and how intelligence is to be collected, analyzed, and promulgated, has been repeated so many times that it has become the prevailing orthodoxy.
This paper offers a new and innovative legal framework for articulating the law and practice of interstate peacetime espionage operations, relying on a body of moral philosophy and intelligence ethics thus far ignored by legal thinkers. This framework diagnoses the legality of covert intelligence at three distinct temporal stages: before, during, and after. In doing so it follows the traditional paradigms of international law and the use of force, which themselves are grounded in the history of Just War Theory. Adopting the Jus Ad, Jus In, Jus Post model is appropriate, given the symbiosis between espionage and fundamental U.N. Charter principles.
This paper focuses on the first of these three paradigms, the Jus Ad Explorationem (“JAE”), a sovereign’s prerogative to engage in peacetime espionage and the right’s core limitations. Examining a plethora of international legal sources, the paper exemplifies the myriad ways by which peacetime intelligence gathering has been already recognized as a necessary pre-requisite for the functioning of our global legal order. The paper then discusses the nature of the JAE. It argues that the right to spy is best understood as a privilege in Hohfeldian terms. It shows how understanding interstate intelligence operations as a weaker “liberty right” that imposes no obligations on third parties to tolerate such behavior helps capture the essence of the customary norms that form part of the practice.
Recognizing the liberty right to spy opens the door for the doctrine of “abuse of rights” to play a role in constraining the practice. By identifying the only two legitimate justifications for peacetime espionage— advancing the national security interests of States and promoting an increase in international stability and cooperation—we are able to delimit what may constitute abusive spying, defined as exploiting one’s right to spy not for the purposes for which the right was intended. The paper concludes by introducing four categories of unlawful espionage: (1) spying as a means to advance personal interests; (2) spying as a means to commit internationally wrongful acts; (3) spying as a means to advance corporate interests; and (4) spying as a means to exploit post-colonial relations
Do Blockchain Technologies Make Us Safer? Do Cryptocurrencies Necessarily Make Us Less Safe?
Get PDFThis essay is based on a presentation made on January 24, 2020 at the invitation of the Texas Journal of International Law and the Strauss Center for National Security at the University of Texas. That presentation focused on the two questions mentioned in the title of this essay – Do Blockchain Technologies Make Us Safer? And Do Cryptocurrencies Necessarily Make Us Less Safe? The essay presents answers to the two questions: “yes” and “probably yes.” This essay begins with some level-setting on different types of blockchain technologies and of cryptocurrencies, and gives some background materials on global and national responses to certain cryptocurrencies, such as El Petro sponsored by Venezuela’s PDVSA and Facebook’s Libra
In Memoriam: Remembering Maurice Holland, former Oregon Law dean and professor
No full textA profile of Holland published on the University of Oregon\u27s Law School website after his death in 2020
Information Matters in Tax Enforcement
Get PDFMost scholars recognize both that the government needs information about taxpayers’ transactions to determine whether their reporting is honest, and that third third-party reporting helps the government obtain that information. Given governments’ reliance on tax collections, it would be risky to think that information or third third-party reporting is not needed by tax agencies. However, a recent article by Professor Wei Cui asserts that “modern governments can practice ‘taxation without information.’” Professor Cui’s argument rests on two claims: (1) “giving governments effective access to taxpayer information through third parties does not explain the success of modern tax administration” because, he argues, some important taxes taxes—such as the value added tax (VAT) VAT)—do not involve information reporting; and (2) modern tax administration succeeds because “business firms” are “sites of social cooperation under the rule of law,” fostering compliance. Both arguments are mistaken. As this Article demonstrates, third third-party information reporting is highly effective, third third-party reporting is used to enforce VATs, and firms are not inherently compliant. In fact, where individuals report on firms, firms’ compliance increases. This supports the intuitive notion that third third-party reporting increases tax compliance and t hat information matters in tax enforcement
Chiafalo: Constitutionalizing Historical Gloss in Law and Democratic Politics
Get PDFWe make one central point in this Article. Justice Kagan’s opinion in Chiafalo uses historical gloss to entrench a particular and modern view of political participation—which is best reflected by American political practices— by rejecting an alternative and anachronistic view—which is best reflected by the text and structure of the Constitution. Part I argues that Chiafalo is not a textualist opinion because Article II, Section 1 does not support the majority’s conclusion that states have the power to limit elector discretion. The majority’s reasoning to the contrary is not persuasive, even on its own terms. Part II argues that Chiafalo is best understood as the latest case from the Court to apply the approach of “historical gloss” to interpreting the Constitution. However, unlike past cases where the Court has used gloss to interpret the Constitution when the text is ambiguous or silent, in Chiafalo, Justice Kagan deploys historical practice in the face of a clear constitutional text which leads to a different conclusion than the evidence from historical practice. Part III examines why Justice Kagan relies on gloss in Chiafalo and explains, from the vantage point of law and democracy, that the Court deploys gloss instrumentally to constitutionalize a particular view of political participation and representation. Chiafalo updates and modernizes our understanding of representation and political participation. Chiafalo is thus as much about the future as it is the past. It is about entrenching a different conception of democratic politics. Part IV explores some problems that are raised for the historical gloss literature when gloss is used in this way to interpret the Constitution. Finally, we conclude with some questions about the robustness and potential of the Court’s right of political participation
Chiarella v. United States and its Indelible Impact on Insider Trading Law
Get PDFInsider trading cases, which are typically prosecuted as securities fraud, carry a mystique rarely present in securities litigation. As a former U.S. Attorney for the Southern District of New York once observed, the cases involve \u27basically cops and robbers. . . .[d]id you get the information and did you trade on it? It is no wonder that each insider trading case featured in this symposium presents a captivating story. But for two distinct reasons, Chiarella v. United States occupies a special place in history. It was the first prosecution under the federal securities laws for the crime of insider trading. And the U.S. Supreme Court\u27s iconic holding--regarding the circumstances under which insider trading constitutes securities fraud--not only profoundly changed the law in 1980 but also continues to define insider trading\u27s contours right up to the present day.
Chiarella\u27s facts are straightforward and memorable. The defendant was employed by a financial printing firm hired to publish announcements of takeover bids. On several occasions he managed to deduce from code names the identities of the actual companies, and then used that confidential information to surreptitiously purchase stock in the acquisition targets. After settling a civil securities fraud action brought by the Securities and Exchange Commission, Chiarella was indicted in New York federal court for criminal securities fraud, found guilty by a jury, and unsuccessfully appealed to the Second Circuit. The Supreme Court, however, overturned his conviction.
While the case is famous, important aspects of Chiarella have gone unnoticed or been long since forgotten. This essay sets out to explore these aspects in order to better understand how a seemingly mundane SEC settlement involving just over $ 30,000 in ill-gotten gains morphed into a groundbreaking insider trading prosecution and Supreme Court decision. The exploration draws from a close analysis of the civil and criminal litigation record as well as interviews with most of the principal attorneys involved in the case at its various stages, all of whom went on to extraordinary careers in public service, private practice, or law teaching (with many toggling between two or all three). This distinguished cadre includes: Stanley S. Arkin, Judge Frank H. Easterbrook, Ralph C. Ferrara, Robert B. Fiske, Jr., Paul Gonson, Professor Donald C. Langevoort, Judge Jed S. Rakoff, Lee S. Richards III, John S. Siffert, and John Rusty Wing, and extends as well to their remembrances of Stephen Shapiro.
Insider trading law in the U.S. is routinely depicted as judge-made or judicially created. The description is apposite. Although Congress statutorily authorized the SEC rule prohibiting fraud in connection with the purchase or sale of any security, it is courts that must determine, as a matter of federal common law, whether securities trading on the basis of material nonpublic information constitutes a deceptive device or contrivance under Section 10(b) of the Securities Exchange Act of 1934 (Exchange Act), and thus a fraud within Rule 10b-5\u27s prohibition. But the description also leaves unacknowledged the essential role of the SEC, DOJ, and defense attorneys in framing the arguments on which the judicial rulings are based.
Nowhere have attorneys influenced the development of insider trading law more profoundly than in the various phases of the Chiarella litigation. This story therefore suggests, with no hint of exaggeration, that Chiarella\u27s indelible impact results as much from the case\u27s lawyering as from the ruling announced by the Court in its landmark decision
Internet Architecture and Disability
Get PDFThe Internet is essential for education, employment, information, and cultural and democratic participation. For tens of millions of people with disabilities in the United States, barriers to accessing the Internet—including the visual presentation of information to people who are blind or visually impaired, the aural presentation of information to people who are deaf or hard of hearing, and the persistence of Internet technology, interfaces, and content without regard to prohibitive cognitive load for people with cognitive and intellectual disabilities—collectively pose one of the most significant civil rights issues of the information age. Yet disability law lacks a comprehensive theoretical approach for fully facilitating Internet accessibility. The prevailing doctrinal approach to Internet accessibility seeks to treat websites as metaphorical “places” subject to Title III of the Americans with Disabilities Act (ADA), which requires places of public accommodations to be accessible to people with disabilities. While this place-centric approach to Title III has succeeded to a significant degree in making websites accessible over the last two decades, large swaths of the Internet—more broadly construed to include Internet technologies beyond websites—remain inaccessible to millions of people with a variety of disabilities.
As limitations of a place-based approach to Title III become clearer, a new framework for disability law is needed in an increasingly intermediated Internet. Leveraging the Internet-law literature on perspectives, this article recognizes the place-centric approach to Title III as normatively and doctrinally “internal,” in the terminology of Internet-law scholars. It offers a framework for supplementing this internal approach with an external approach that contemplates the layered architecture of the Internet, including its constituent content, web and non-web applications, access networks operated by Internet service providers, and devices and the role of disability and other bodies of law, particularly including telecommunications law and attendant policy issues, such as net neutrality, in making them accessible
Changed Science Writs and State Habeas Relief
Get PDFFor decades now, the 1996 federal Antiterrorism and Effective Death Penalty Act (AEDPA) has limited the scope and influence of federal courts in post-conviction case review, forcing convicted individuals to rely instead on state habeas proceedings for conviction relief. Due in large part to the 2009 National Academy of Sciences Report, petitions for conviction relief increasingly include challenges to the government’s scientific evidence at trial. These petitions analyze that evidence by comparing the trial evidence to the advancement of scientific findings and scientific knowledge in the years since the trial. State habeas petitions thus provide an avenue for relief from misused and misrepresented scientific evidence.
State courts, however, can only reexamine faulty scientific evidence, and reverse unconstitutional convictions, if the legislature provides the tools to do so. One such tool is the ability to review post-conviction relief petitions based specifically on faulty science, a tool known as changed science writs.
This Article reviews the growth of state-level changed science writs and examines how other states can adopt this tool to review habeas petitions based on scientific evidence. This Article posits that changed science writs both incentivize greater reliability of evidence at trial by creating a process of review, and help to identify wrongful convictions based on inaccurate, misrepresented, or faulty scientific evidence
