Monthly Archives: February 2012

Aggression v. Atrocity in the History of International Law: From the Tokyo Trial to the Vietnam War

Samuel Moyn, From Antiwar Politics to Antitorture Politics, available at SSRN.

Columbia University history professor Samuel Moyn (visiting at Yale Law School in the spring term of 2012) has recently posted his paper From Antiwar Politics to Antitorture Politics on SSRN, a paper I heard him present at a November session of the Critical Analysis of Law workshop at my law school, the Faculty of Law, University of Toronto.  I write about it here on JOTWELL because it is an excellent paper, which law professors might not otherwise hear about, offering an extremely thoughtful intervention on the recent history of international law.

Moyn’s thesis is that international law in the human rights era has moved from a Nuremberg-informed concern with the crime of waging aggressive war to a preoccupation which he thinks first developed in the later stages of the Vietnam War with crimes committed in the conduct of war itself, with the means and methods of warfare so familiar to us now in post-9/11 debates about the detainment and torture of prisoners in the “War on Terror.”  Until My Lai in 1969, Moyn argues, Americans were shockingly cavalier about illegal military acts committed in the Vietnam War that were widely known to be occurring – mistreatment of POWs (direct military shootings and torture of suspected South Vietnamese subversives), search and destroy missions that made little or no effort to distinguish between combatants and civilians, and massive aerial bombardments, including unauthorized bombings in Cambodia and Laos.  When American lawyers entered the debate about the legality of the war, Moyn shows that they paid little attention to crimes committed in the conduct of the war.  Here he focuses on the activities of “The Lawyers Committee Concerning American Policy in Vietnam” between 1965 and 1969.  This group concentrated on aggression and the legality of American intervention in Vietnam and nowhere addressed the law governing the conduct of warfare.  Things did change.  Moyn gives a central place in his story to Richard Falk, a member of this group and an academic lawyer who eventually became very vocal in his opposition to the war, including an emphasis on illegal methods of conducting it.  The second person who features prominently in his paper is a more conservative critic, Telford Taylor, a military man who had been a prosecutor at Nuremberg, whose popular book Nuremberg and Vietnam: An American Tragedy (1970) condemned the war.  Taylor made the allegations of war crimes committed in Vietnam “respectable,” as he could not be seen as relying on spurious accounts from the far left or dismissed as a Communist sympathizer.  Taylor followed the post-My Lai trend of emphasizing war crimes, casting doubt on the whole idea of aggressive war from Nuremberg.  Taylor appreciated that “unlike at Nuremberg where it was obvious who had started World War II, the Vietnam era showed that one man’s aggressor was another man’s victim (and vice versa).” Continue reading "Aggression v. Atrocity in the History of International Law: From the Tokyo Trial to the Vietnam War"

The End of “Notice and Consent” as Meaningful Privacy Protection

Scott Peppet, Unraveling Privacy: The Personal Prospectus & the Threat of a Full Disclosure Future, 105 NW L. Rev. (forthcoming 2012), available on SSRN.

Scott Peppet’s article Unraveling Privacy: The Personal Prospectus & the Threat of a Full Disclosure Future has offered a fundamental challenge to reigning privacy paradigms in cyberlaw.  The old privacy law assumed that the right set of laws could help individuals hide embarrassing facts or disable invasive tracking.  The encroaching “full disclosure future” ensures that those who try to maintain secrets look like they have “something to hide.”  We used to be afraid of shadowy watchers collecting incriminating “digital dossiers;” now we worry over not measuring up when rivals reveal better “personal prospectuses” than our own.  Peppet’s elegant interweaving of social science and law renders us unable to rely on old privacy paradigms like “notice and consent” online.

Something to Hide

Traditionally, privacy law experts have assumed that a combination of markets and law can preserve privacy.  Firms will compete to offer more or less privacy.  Data collectors will provide customers with various “privacy settings” that tailor online services to optimize self-disclosure.  Some have proposed “personal data vaults” to manage the emanations of sensor networks that track movements and actions in real space.  Jonathan Zittrain’s classic article on “privication” proposed that the same technologies used by copyrightholders to monitor or stop dissemination of works could be adopted by patients concerned about the unauthorized spread of health information. Continue reading "The End of “Notice and Consent” as Meaningful Privacy Protection"

The Copyright Law is An Ass: A Brash New Installment in this Fascinating Ongoing Series!

Yvette Joy Liebesman, Downstream Copyright InfringersKan. L. Rev (forthcoming), available on SSRN.

This article is a fine example of smart and accessible copyright scholarship that identifies and clearly describes a perplexing aspect of the current law, and then succinctly proposes sensible solutions.  The somewhat startling problem that Saint Louis University Law Prof Yvette Joy Liebesman identifies is this: A consumer who purchases authorized downloads of musical recordings, intending to behave legally and in consummately copyright law compliant manner, may actually be guilty of copyright infringement if the songs she purchases in digital format turn out to infringe the copyrights of other songs, such as by including unauthorized samples of vocal or instrumental riffs.

Liebesman points out that based on the ways the pertinent statutory provisions of the Copyright Act were written and interpreted, had the same people purchased the same songs, but with the copies embedded in vinyl or written on a compact disk, they would not be vulnerable to liability infringement for owning them.  But the recording industry has been so eager to frighten off prospective unauthorized downloading of music that it persuaded Congress and the courts to construct a legal regime under which even legal downloaders are at risk, facing strict infringement liability for completely innocent acts of (e.g.) purchasing songs from iTunes and loading them on an iPod.  This group of potential defendants includes me, and most of you reading this. Continue reading "The Copyright Law is An Ass: A Brash New Installment in this Fascinating Ongoing Series!"