April 01, 2011
icon Getting Out of Libya
Posted by William Birdthistle

The glister must surely be flaking off Qaddafi’s garish dictatorship if his most senior co-conspirators are defecting now.  Bolting today, in the absence of promises of immunity and in the presence of military gains on the ground, appears to bespeak deep rot at the core of the regime.  For the sake of Libyans eager to rebuild their country, let’s hope that the collapse is quick and complete.  Autocrats the world over, alas, seem to asymptote their dotage along for unwelcome decades.

Ideally, Qaddafi would leave Libya like so many of the rest of us who have departed in the past thirty years: in a headlong sprint.  Like Moussa Koussa and the other defectors, my own family caught the first jet out of Libya when were evacuated in 1981.  Keeping track of US-Libyan encounters is difficult, but 1981 was not the airstrikes on Qaddafi’s compound that killed his daughter (1986), nor was it the Lockerbie bombing (1988), it was the Gulf of Sidra incident.  In August 1981, Qaddafi declared a “line of death” across the Gulf of Sidra, which prompted US naval forces to sail in what the United States declared to be international waters.  After a day or two of airborne handbags, two Libyan jets fired upon U.S. jets, which then promptly shot down the Libyan jets.

Those expatriates wandering around in the desert below were quickly invited to get out.  Esso, the company my father worked for, chartered a DC-10 from KLM and gave us a day or two to evacuate.  The airstrip in Brega is too small for a plane of that size, so all the town’s women and children convoyed up the coastal highway -- the same one hosting today’s fighting -- to Benghazi, where we boarded the plane and flew to Amsterdam.  As I recall, the plane had no flight attendants but very well stocked trolleys: I remember a surprising spirit of hilarity amongst the mothers.  Fathers remained in Brega for a short time to shut down the refinery.

If Libya rids itself of Qaddafi, I’ll look forward to returning someday soon.  I have no insights about how to improve relations with the Middle East, but I’m always a little less pessimistic when I think of my school in Brega.  Both Libyan and expatriate pupils attended Esso Elementary School, and we shared a yearbook -- the Darbuka (a goblet drum) -- which had a wonderful design.  The front cover and first half of the book was in English; the second half and back cover in Arabic.  This layout gave primacy to English readers, of course, but also to Arabic readers, who read from right to left.  Perhaps the collapse of Qaddafi’s rule may allow for a similar alignment of the interests of Western and Arab peoples.

The bone-dry Sahara in Libya is an excellent curator.  Along with the scars from World War II, the desert preserves some of the finest ancient ruins in the world: magnificent Roman buildings in Leptis Magna and unspoiled Greek settlements in Cyrene.  When the sand has soaked up all the blood Qaddafi has spilt, I hope Libyans will be able to excavate a society inspired by those republican and democratic inhabitants of their land.

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icon Tiger Cub is Harvard Bound
Posted by Usha Rodrigues

Fans of our Tiger Mom Book Club may be interested to know that Amy Chua's eldest, Sophia, was accepted at Harvard.  The ATL piece is adulatory:

You can criticize all you want, but you can’t argue with success. Above the Law has confirmed that Sophia Chua-Rubenfeld, the oldest daughter of Amy Chua and fellow YLS professor Jed Rubenfeld, received her Harvard acceptance earlier this week. Sophia has already made up her mind that Harvard is where she’ll attend college. (Can you blame her for wanting to trade New Haven for Cambridge?)

Some readers of Amy Chua’s book wondered whether it was premature of her to “end a parenting story when one child is only 15,” in the words of Elizabeth Chang of the Washington Post. Well, now we know how the story ends — very, very happily. As I previously observed, speaking from my own personal experience, “to Asian parents, sending a child to a top college is the ultimate vindication.” And colleges don’t get more “top” than Harvard (which is #1 in the current U.S. News rankings; but even if it weren’t this year, it would still be #1 in the minds of many Asian parents). 

I don't want to diminish Sophia's many accomplishments, which are extraordinarily impressive.  But all this excitement over Harvard seems a bit overblown.  For my particular brand of Asian upbringing--Indian by way of Goa--Harvard was never that big a deal.  The advice I think I'm going to give my daughters when they're Sophia's age (many, many  moons from now) is not to focus too much on getting into the "best" undergraduate institution.  Save that stress for graduate school, where it really matters.  But maybe I'm wrong?  I have nary a hint of Ivy in my education, a conscious choice.  Am I foolishly discounting the value of getting into Harvard? (HT: Dahlia Lithwick)

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March 31, 2011
icon Consumer Protection in an Era of Globalization, by Coglianese, Finkel, and Zaring
Posted by David Zaring

I've co-edited a book on the topic, with Cary Coglianese and Adam Finkel.  Here's the abstract of the introduction - you should order the book, but you should download this part too, now available on SSRN:

With expanding global trade, the challenge of protecting consumers from unsafe food, pharmaceuticals, and consumer products has grown increasingly salient, necessitating the development of new policy ideas and analysis. This chapter introduces the book, Import Safety: Regulatory Governance in the Global Economy, a multidisciplinary project analyzing import safety problems and an array of innovative solutions to these problems. The challenge of protecting the public from unsafe imports arises from the sheer volume of global trade as well as the complexity of products being traded and the vast number of inputs each product contains. It is further compounded by the fact that as products move across jurisdictional boundaries regulators face a host of legal, cultural, and practical obstacles. We argue that import safety problems require rethinking domestic regulation, whether through improving the targeting of traditional government inspections, building stronger public-private partnerships, or making changes in products liability standards. International cooperation will also be needed but will be even more challenging. At every step in the supply chain, regulators face questions of what level of safety to aim for, what form of regulatory standards to adopt, and how compliance with such standards should be monitored and enforced – and yet different countries tend to answer these questions differently. This chapter not only raises the key questions regulators and the public confront in tackling a vexing global challenge, but it also previews Import Safety’s analysis of institutional capacity and a range of potential regulatory responses that can harness market actors to drive improvements in product safety.

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icon New Arizona Law Against Discrimination in Abortions
Posted by Christine Hurt

[About once every six months, I blog on something completely out-of-the-box, for which I will probably experience regret or remorse.  I can see Gordon wince as I type.  This is one of those times.]

Arizona is no stranger to controversy over passing uncommon laws, and this week is no exception.  Arizona has passed a law criminalizing an otherwise legal abortion if the abortion is motivated by the fetus' gender or race.  (The Susan B. Anthony and Frederick Douglass Prenatal Nondiscrimination Act of 2011 -- a pretty gutsy use of names of the deceased for your own purposes.)  Here is the justification:  "Backers of the measure said the ban is needed to put an end to sex- and race-related discrimination that exists in Arizona and throughout the nation. They insist the issue is about bias rather than any broader stance on abortion."

I am going to throw the flag here.  Not because of any strong feelings I have about a woman's right to an abortion for or against, or any insight I have into the law's constitutionality, but because of strong feelings I have about logic.

1.    The law is obviously about abortion, not about gender bias or racial bias.  I don't see a companion law criminalizing seeking to adopt a child of a particular gender or race.  There doesn't seem to be any mention of use of techniques of either the high-tech or old wives' tale varieties to attempt to influence the gender of a hoped-for fetus.  And of course, we have no laws requiring individuals to be color-blind when choosing a mate, or even a sperm donor.  Therefore, if sex-selection or race-selection is permissible in cases of adoption, artificial insemination or plain old coupling, then this law seems pretty much just about abortion.  (Also, the law doesn't mention an equally troubling scenario of a woman postponing the choice of whether to keep a baby or put it up for adoption depending on what race the child is.)

2.      This law seems impossible to enforce.  How would a prosector prove that a woman had an abortion due to sex-selection or race-selection?  The mere fact that the woman had an ultrasound prior to the abortion?  (Note that in eighteen states, legislators want women to be required to see an ultrasound prior to having an abortion.)  Won't any woman have either a mixed motive or a facially neutral explanation?  Would we have to use circumstantial evidence (Married, well-off, with four boy/girl children and the fetus was the same gender)?  And what about race?  Can race show up on an ultrasound?  (I had a "4-D" ultrasound, and my baby looked gold.  I decided having a gold baby was fine with me.)  I suppose that the situation we are looking for is one where a woman has more than one partner or various races, but possibly prefers to stay in a relationship with one of the partners, who is Race A.  If woman finds out that baby is of Race B, then she jeopardizes the relationship, so she aborts.  I would assume this would require some sort of DNA test whereby she can ascertain the actual father?  Perhaps race was just thrown in here to make the law look more "discrimination-y" than "anti-abortion-y."

3.    This law seems impossible to enforce, Part 2.  Discrimination suits, either in employment or in jury selection or possibly other areas, are hard suits to prove.  Employers always have other reasons for firing/hiring, and attorneys always have other reasons for striking/challenging jurors.  So, to make a claim forceful, the accuser has to point to patterns of discrimination -- out of the last 30 people hired/fired, out of all the jurors you struck in the jury pool, etc.  Hopefully we won't have too many cases of women with multiple abortions, so I'm not sure how a pattern of discrimination could ever be shown.

4.    This law seems impossible to enforce, Part 3.  The law criminalizes the performing of the abortion by the doctor.  The discrimination is on the part of the mother.  I would think the doctor would have to know the reason.  Willful blindness?  Seems like some messy cases on the horizon.

5.    The law encourages frivolous lawsuits.  The father or the maternal grandparents in some cases may bring a civil suit for damages against the doctor, but not the mother.  I try not to be cynical, but there could be some fraud opportunities there.

6.      Is this really a problem in Arizona?  Yes, this type of discrimination may happen in other countries where abortion is easily obtained after the gestational age where gender is apparent and where certain genders are economically preferable.  In the U.S., we have no culture where sons or daughters are uniformly more advantageous.  And, in many states it is more difficult to have later abortions.  Apparently, no statistics of this phenomenon in the U.S. were proffered as evidence.

7.    I'm sure there are Constitutional Law issues here, but I'm already outside my expertise.

An identical bill with the same name was introduced into the U.S. House of Representatives in 2009.

Oh, well, back to corporate law.

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icon Drafting Long Hand
Posted by Erik Gerding

A few months ago, I argued that typing legal documents on the computer leads to sloppier product, less careful legal thinking, and perhaps even greater risk when compared to writing long hand (or typing on a typewriter) in the good old days.  Here is an article from noted professor and critic Witold Rybczynski exploring whether a similar dynamic of using computers to draft has led to similar sloppiness in architecture. 

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icon Libya: Brega on the Border
Posted by William Birdthistle

How curious that news being tweeted from reporters and rebels in Libya –- overwhelmingly hostile to Qaddafi’s regime –- still regularly includes links abbreviated with bit.ly.  That’s “.ly” as in “Libya.”  Presumably, Qaddafi isn’t eager to drive away any more foreign investment these days, though it’s peculiar to read about his atrociousness via his own handy web domain.

The headlines today report that Qaddafi loyalists have pushed the enthusiastic if inept rebels back once again, with Brega emerging as the frontline du jour.  All this foxtrotting back and forth along the coastal highway is remarkably reminiscent of Monty and Rommel’s tug-o-war seventy years ago -– the terrain seems to lend itself to outbursts of unsustainable gusto.  Or, under a more favorable reading of the latest rout, perhaps the rebels are merely enticing Qaddafi’s forces into exposed pursuit on a highway under NATO’s gunsights.

Being a child somewhere doesn’t, alas, teach mature insight, military or diplomatic.  I didn’t learn Arabic (beyond counting to ten).  I don’t know anything about competing tribal identities (though clearly the nomadic Berbers who sold dangerous-looking camel whips at itinerant suqs had little in common with the Arab Libyans who lived in Brega, but that’s a crude distinction common in most countries of the Magreb).  I didn’t even learn a good recipe for delicious Libyan shorba, the national spiced soup.  So my own position on U.S. policy is just as ill-informed and reflexive as most everybody else’s these days.

Many hands have been wrung about the U.S. engagement and what it may reveal about an incipient Obama doctrine.  My sense is that bombs are falling less because of Obama and more because of Qaddafi –- he clearly ran afoul of the Saddam doctrine, which compels the United States to rain furious hell upon old antagonists foolish enough to expose themselves to UN censure without the prophylaxis of nuclear weapons.  (Note to acolytes of Mohamed Farrah Aidid: you’re on the list.)

Now that we have committed the Sixth Fleet -– which watched over my own evacuation from Libya -– I hope its engagement is quick and decisive.  Americans cannot be comfortable at the prospect of Qaddafi left alone atop a nation purged of dissent with little left to do in life but spend billions on his deep rolodex of mercenaries. 

More selfishly, if the situation does bog down into stalemate, I hope Brega will lie in liberated Libya.  The country was closed to Americans for the twenty-five years between the day my family was evacuated in 1981 and the rapprochement in 2006.  I think it’s fair to assume that any territory remaining in Qaddafi’s hands after this contretemps will be similarly inhospitable.  And I would like to be able to return someday to show my children evidence for those stories about Una Wilson being bitten by a pye dog and needing a month of rabies injections and how Grandma sifted flour for weevils.  (No need to sift Corn Flakes, as Klim floats them to the surface for easy removal.)

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March 30, 2011
icon The Two Year Tour: When Academics Return from (or Depart for) the Beltway?
Posted by Erik Gerding

In 2008, a number of Professors joined the Millionaires and Skippers (and perhaps a few Gilligans, Mary Anns and Gingers) for the fateful trip to go work for a new Administration.  Because of many University leave rules, their cruise will soon end as a two year tour.

What happens when law professors return to the academy after a stint in public service?  Does it give them a fresh perspective after seeing the sausage in production, one that enriches their scholarship?  Might the experience occasionally have some offal results - if a professor feels compelled to dull a critical edge and engage in political apologia? 

I respect the integrity of the professors I know who went to work for the Administration.  But a close examination of the experience of policymaking professors remains ripe for exploration.  What happens when professors can't just theorize about the "tensions" inherent in a rule, but need to make hard decisions about concrete rules?  What happens when these same professors return to the academy?

These types of issues came to the fore when academics returned from the George W. Bush Administration.  But the highly charged nature of law professors involvement with that Administration's national security policy may frustrate a careful examination of the broader phenomenon of academics as policy makers.

Similar concerns about the critical edge of legal scholars extends to other non-academic endeavours.  I had a professor in law school whose criticism of some of his colleagues active in appellate advocacy stuck with me, even if I didn't agree with it.  He argued that the prospect of returning to argue in front of the bench meant that these professors necessarily were careful not to make scholarly commitments that might come back to haunt them in future oral argument.  One reason this criticism may have stuck with me is that it struck me as slightly odd coming from someone who believed law was not at all distinct from politics.

But this criticism came back to me last month when I was drafting an amicus brief (more on that in a subsequent post).  Although I did not have a client (the brief was on behalf of law professors), the brief needed to be true to my scholarly views and the views of the other signatories.  At the same time, legal scholarship is an inherently critical enterprise.  The same exercise in the Socratic classroom of exposing the inconsistencies and difficult application of legal rules marks good scholarship.  But judges need to make decisions.   

The tensions between scholarship and policymaking or advocacy also come to the fore when scholars are nominated to executive positions and they face questions about their scholarly positions.  Elizabeth Warren, again a lightning rod, serves as Exhibit A.  Of course, nominated professors can offer the defense that their role as an academic differs fundamentally from their would-be role as judge or official.

Yet the example of Elizabeth Warren and the criticism of her scholarship also merits closer examination.  Aside from the substantive criticism of her views and work, there may lie an unease with the vein of advocacy itself in her scholarship.  Of course, advocacy is a part of much if not all legal scholarship.  Legal scholarship is not natural science.  Moreover, it is by nature a lot more applied than much of the social sciences.  We would delude ourselves if we would think rhetoric and advocacy could be neatly removed from legal scholarship.  But we would also be deluded if we thought there were not some deep tensions between advocacy and truth-seeking inherent in legal scholarship.

A better explication of these tensions will have to come from more scholars with more philosophical training.  But for now, consider the proposition that scholars embarking or returning from policymaking can lead us to ask some very intriguing questions about the nature of our enterprise and what we do when we do scholarship.  We can't answer the question about whether political experience affects the quality of scholarship (or whether scholarship is a barometer for fitness for a policymaking position) without confronting the the legal academy's unease about what makes scholarship "good" or without looking anew at old questions about the law's relationship to politics and ideology.  Those law professors passing through the veil of the academy offer very personal vehicles to explore these questions.

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icon Incentive Compensation for Officers of the Court (aka Prosecutors)
Posted by Christine Hurt

As usual, my colleague Larry Ribstein is already all over the agency problems endemic with paying government prosecutors bonuses based on an annual conviction percentage (or number of convictions), as is the plan in Denver, CO.  Because of my recent foray into thinking about incentive compensation (Regulating Compensation) and whether it increases risk-taking or possibly encourages excessive risk-taking, I can't help but balk at the thought of "conviction bonuses."  A million years ago I also wrote about attorney fees for transactional lawyers, arguing that transactional lawyers should not have incentives to close a deal when they may have a duty to tell their clients to walk away (or disclose more, etc.)  Here are may thoughts, many of which have already been voiced by others:

1.  Prosecutors are officers of the court and have legal and ethical duties that have nothing to do with winning a conviction.  If we believe that option-based compensation might make officers at Enron and elsewhere fudge the numbers, then do we want that same incentive to cloud judgment about exculpatory evidence, suborning perjury, etc.?

2.  As others have mentioned, this incentive could have unintended consequences, such as prosecutors pleading out fewer cases, cherry-picking easy cases, going for "low-hanging fruit" offenses, etc.  I would hate to be facing a trial date in December.

3.  As with executive officers, whether a prosecutor wins or not turns on a lot of factors, many of which aren't related to the hard work or talent of the prosecutor.  Perhaps the police officers and detectives did a good job investigating facts, locating witnesses, etc.  On the other hand, the prosecutor may have had some tough, time-consuming trials that were lost on the facts but brought down her "percentage."

4.  The Dodd-Frank Act wants corporations to have some system of clawbacks, whereby executive officers would have to repay incentive compensation if things go poorly down the line.  Incentive compensation, particularly in financial institutions, has a timing mismatch problem whereby the profitability of certain decisions will not be determined until much after the compensation has been paid.  So, if convictions are overturned on appeal, does the prosecutor face clawback?

5.  Finally, criminal defense attorneys aren't allowed to defend cases on a contingency, so it seems strange that it would be ethical the other direction.

As Larry points out, with prosecutors, we fear that skewed incentives will impact people's liberty, not just a corporation's profitability.

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icon What Is Going On In Investment Law?
Posted by David Zaring

There are two important forms of adjudication in international economic law.  One may be found in the WTO, the other in the welter of treaties that permit resort to tribunals in international investment law, which often reference an ad hoc right of review, often to a tribunal set up by ICSID.  This matters to foreign investors because it means that if the country in which they have invested treats them, say, differently than domestic investors, they needn't go to the local court, but can drag the sovereign into arbitration in DC, or Stockholm, or Paris, or wherever the investment treaty provides for a remedy.  At the annual meeting of the American Society of International Law, there was some sense of ferment in this latter form of adjudication.

  • You can't appeal an adverse decision in these cases - or can you?  The very technical and limited means that you could use to complain about a ruling - a decision was never issued, or the panel was constructed incorrectly - has recently, maybe, given way to "the panel didn't explain its decision," which is sort of close to "didn't explain why our argument wasn't correct."  If a right of appeal exists in this sort of law, it looks a little less like arbitration and a little more like, well, law.
  • What is the same treatment as between foreign and domestic investors anyway?  Is it the same thing as the national treatment principle in the WTO?  There was a panel at ASIL considering that very question, which I'm pretty surprised is still an open one.  My own view is that international finance is well on its way to adopting a national treatment principle sotto voce, but if various courts think that the principle means very different things, then finance's legal achievement will be limited.
  • And it's not even clear whether there's a common approach to fee and cost shifting in investment law.  Consider Susan Franck's recent paper, here's the abstract, which is a good way to familiar yourself with the latest greatest:

International investment and related disputes are on the rise. With national courts generally unavailable and difficulties resolving disputes through diplomacy, investment treaties give investors a right to seek redress and arbitrate directly with states. The costs of these investment treaty arbitrations — including the costs of lawyers for both sides, as well as administrative and tribunal expenses — are arguably substantial. This Article offers empirical research indicating that even partial costs could represent more than 10% of an average award. The data suggested a lack of certainty about total costs, which parties had ultimate liability for costs, and the justification for those cost decisions. Although there were signs of balance and a preference for parties to be responsible for their own costs, there was neither a universal approach to cost allocation nor a reliable relationship between cost shifts and losing. Awards typically lacked citation to legal authority and provided minimal rationale, and the justifications for cost decisions exhibited broad variation. Small pockets of coherence existed. Tribunals typically decided costs only in the final award; and as the amount investors claimed increased, tribunal costs also increased. Such a combination of variability and convergence can disrupt the value of arbitration for investors and states. In light of the data, but recognizing the need for additional research to replicate and expand upon the initial findings, this Article recommends states consider implementing measures that encourage arbitrators to consider specific factors when making cost decisions, obligate investors to particularize their claimed damages at an early stage, and facilitate the use of other Alternative Dispute Resolution (ADR) strategies. Establishing such procedural safeguards can aid the legitimacy of a dispute resolution mechanism with critical implications for the international political economy.

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March 29, 2011
icon Almost Family Film Blogging: The King's Speech
Posted by Christine Hurt

So, this may take some explanation.  I took my two oldest children, seventh grade and third grade, to see The King's Speech.  What is somewhat odd about this is that we are fierce monitors of our children's media exposure -- TV, film, music, internet, etc.  But we've always felt that external ratings are barely prima facie evidence of what is suitable.  We have a strange but consistent set of criteria on what makes things off-limits.  Our TV "parental controls" wants to lock out Top Gear but let through Suite Life of Zach and Cody.  We disagree.  So, though The King's Speech was Rated "R," I canvassed many people and various websites to see if it might be suitable.  If you've seen the film, you know that its rating is earned primarily because of out-of-context curses spewed forth during speech therapy (and of course, words that are curse words in England, but oddly not here).  We had a brief conversation about how of course we don't use these words and that my taking them to see the movie was not any evidence that I approved of these words, etc., and off we went.

What a movie!  I am so glad that I was able to see it and that I could share it with them.  My third grader, the history buff, was literally on the edge of his seat the whole time.  Of course, they were also fascinated that both Dumbledore and Bellatrix LeStrange were in it!  (Carter:  "But she usually plays really bizarre characters!"  Me:  "Oh, no, dear.  She first made a career of playing sweet English girls.")

To sum up, Bertie (soon-to-be George VI) stammers, presumably because of a particularly harsh childhood and various family-of-origin issues.  As radio is becoming ubiquitous, it seems clear that any public figure will need to be a competent public speaker, particularly political figures.  Lionel Logue is hired to be his speech therapist, though his techniques are unorthodox and controversial.  The movie is historical, but it's really a buddy movie, with Bertie and Lionel establishing a friendship of equals. 

So, a few interesting conversation starters:  First, as a child I formed an opinion that King Edward's abdication of the throne from Wallis Simpson was quite romantic and selfless.  This seems to be a quite Americanized interpretation.  In the movie, Edward VIII (David) seems supremely selfish, abandoning his family and his country at the brink of wartime, all for a seemingly juvenile infatuation with a married woman, leaving his brother, who is at this point incapable of speaking in public, to pick up the pieces and assume the throne.  Bad form.  Second, I also wondered why no one suggested that someone else "be the voice" of Bertie.  There were many who suggested that King Edward secretly keep Simpson as a mistress, so it's not like subterfuge was below these power brokers.  I would think in that era that very few knew what the monarchs actually sounded like, and at the end Bertie broadcasts his speech from a private room.  Remember, President Roosevelt was keeping a pretty big secret from the public at the same time with little trouble.  And lastly, why didn't Bertie just wear headphones with music playing during his broadcast, if that seemed to cure the stammer?

In sum, it was a great movie.  And, on the way home, we had a fascinating conversation about the role of a monarchy in a modern democratic society and the history of the Windsors.  Much better than The Suite Life of Zach and Cody.


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icon Libya: Oil & Powder
Posted by William Birdthistle

Amidst the recent flood of reports of revolution from alien datelines across North Africa, news of gunfighting at the airstrip in Brega wrenched powerful memories out of me.  Expatriates such as myself -- from Houston, Dublin, Sydney, the world over -- relied upon that piddling lick of tarmac as a lifeline to home.  That airstrip is where we put our faith in the ancient, propeller-driven Fokker F-27s of Libyan Arab Airlines to ferry us 500 miles to Tripoli for long-haul flights.  That airstrip is where my sister broke her leg twirling around an iron bar.  And that airstrip is where my brothers, bound for boarding school, hugged my crying mother goodbye.

Brega was a terribly challenging place to raise a family but a wonderful place to be a child.  My parents were very young, very far from their verdant homeland, and very much hounded by their pack of four children under the age of eight.  One general store, one clinic, no church, no television, and no disposable nappies.  Libya is home to the world's highest recorded temperature (136 degrees in Al Aziziyah in 1922) and is a true desert.  When I first came to America many years later, a friend of mine showed me what she called the Arizona desert: majestic saguaro, abundant juniper, and teeming wildflowers.  Zoom out from this map of our house in Brega (1169 Cyrene Street) to see the Libyan desert: no vegetation, just rock, salt, and sand. 

View Brega, Libya in a larger map

In fact, powder was the textural motif of my youth.  Our milk was powdered Klim (the exact opposite, in so many ways, of real milk); orange juice was powdered Tang; and despite inch-thick metal sandstorm blinds to protect our house from ghiblis, our home was always coated with a fine layer of silt.

Kids, of course, loved it.  We were almost completely unchaperoned.  What could happen to a small child?  Crime in a small village where everyone knew each other was non-existent, and any wayward youngster inclined to wander into the Sahara could easily be tracked down.  We played all hours amidst the massive pyramids of gas pipes and swam and sailed in the Mediterranean just beyond the picturesque sand dunes.  True, the beach was often spotted with tar that washed ashore from a pumping buoy that filled the regular queue of oil tankers.  But petrol is very handy at removing sticky tar from skin, and we had lots of petrol.  Teenagers learned to drive on the nearby salt flats, where no amount of indiscretion could convert a twenty-year-old Fiat into something dangerous.

Our parents could take their exercise by either scorching themselves on the pair of infernal tennis courts or duffering their way around the nine-hole golf course composed entirely of sand.  (Local rules permitted all shots to be played off a portable piece of astro-turf, and the "greens" were rendered puttable with oil sprayed and rolled into a firm crust.)  We were, in effect, blissfully isolated in a 1950s beach resort.

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icon Outbidding "Sugar Daddies" in Malawi: Sometimes Incentives Work
Posted by Christine Hurt

Here is an interesting study experimenting with AIDS prevention outreach in Malawi, a country I am returning to this September.  Sub-Saharan Africa has a well-known AIDS crisis, and in Malawi, one in eight adults has HIV.  Malawi is a small, land-locked country with few resources, and only 2% of houses have water, and the same percentage have electricity.  Most Malawians survive on $1 a day.  Faced with very view opportunities, young teenage Malawi women without "food security" (a nice development euphemism for "enough food not to starve") are tempted to accept the attentions of "sugar daddies," (their word, not mine) who give them money.  The average amount is $6.50 a month.  This phenomenon cannot help the prevention of AIDS, given that 20% of Malawian men in their 30s have HIV.

So, what if you gave teenage girls $10 a month to stay in school and paid their school fees?  Well, you might just cut the incidence of AIDS by over 60%.  Some commentators in the story feel like it is a necessary solution in the world of few alternatives, as healthcare-related interventions falter.  Others believe it is abhorrent.  I think I agree with the former.

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March 28, 2011
icon From Ireland to Libya.
Posted by William Birdthistle

When you grow up in a village of a few hundred expatriate families at the edge of the Sahara, you can be reasonably certain you’ll never hear its name spoken aloud on American radio.  But about a fortnight ago, with twin toddlers clamoring for breakfast and spoons of porridge poised in mid-air, I was proven wrong.

After weeks of Libyan disintegration featuring the unwelcome revival of Qaddafi’s ugly cabaret, fighting has for the second time reached the dusty hamlet of Marsa el-Brega.  Forces rebelling against the soi-disant Brotherly Leader and Guide of the [1969] Revolution have, at latest report, retaken the airstrip and port in this small wellhead on the Mediterranean coast.  Thirty years ago, forces loyal to Qaddafi formed a farewell escort for those of us plucked from the country during the last evacuation of Americans off the shores of Tripoli.  What was a site of childhood adventure for me has become a grim pit for Libyans who, it seems, must either remove Qaddafi or die for trying.

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When my father first accepted a posting from his hometown in County Cork to Libya in 1963, the country was ruled by King Idris and scrap metal.  The king was first and last monarch of a nation newly cobbled together from antique provinces of Ottoman vintage: Tripolitania, Cyrenaica, and Fezzan.  Idris I was ushered into office after World War II by Allies grateful for his resistance to Axis forces and ushered out again in 1969 by an ungrateful army captain with latent penchants for sunglasses, costumery, and despotism.

The scrap metal, Libya’s first export, was the detritus of materiel from the Desert War, when Field Marshals Montgomery and Rommel fought their tanks back and forth through many of the same towns being fought over today: Benghazi, Tobruk, and Ajdabiya.  One of the first tasks for my father’s company more than fifteen years after the war was to clear the beaches of mines.  Many decades later, carcasses of vintage bombers and fighters still served as landmarks in the desert and curios beneath the pristine waters of the Libyan coastline.

During the war, soldiers on both sides assumed their enemy was poisoning the drinking wells when they routinely found oil floating atop the water.  But in Libya, petroleum oozes from the ground, which is why families like mine spent decades living in tiny outposts like Brega to harvest it.  The few amenities in such places shrank dramatically when Qaddafi took power with his long-forgotten religious zeal that outlawed haraam items like alcohol and pork.  Happily, an oil refinery is essentially a massive distillery, so my father and and his co-workers miniaturized their expertise to produce “flash,” a high-octane violation of Qaddafi’s edict.  (Upgraded to “Cointreau” with an orange rind, “Kahlua” with a scoop of Sanka, and “Scotch” with some wood chips.)  My mother and her children became adept at hiding Clonakilty sausages and bacon in brassieres and underwear too mortifying for customs officials to search.

When I learned of bullets being fired and people dying in this tiny town, known to few others than those of us who lived there and loved it, I realized that Qaddafi had completed his metamorphosis from farcical clown to wicked menace.

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icon A Law Professor's Childhood in Libya: a Guest Series from William Birdthistle
Posted by Erik Gerding

We are fortunate to have our frequent guest, William Birdthistle, return for a series of guest posts this week.  Many know him for his expertise in the regulation of mutual funds and other investment funds.  But fewer know that Professor Birdthistle grew up in Marsa el-Brega, Libya, site of heavy fighting in recent weeks in the Libyan civil war.  We are looking forward to hearing his thoughts this week on watching the land of his childhood become engulfed in war. 

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March 27, 2011
icon Two Links
Posted by David Zaring
  • Here's an interesting take on the Fed's new mortgage broker rule.
  • I quite enjoyed this long post on the natural selection of regulators, though it is pretty clearly wrong (ask yourself who creates agencies):
    • Regulators have no natural predators
    • Once regulation is established, it is remarkably difficult to remove it. This is largely a consequence of the same human tendency as discussed above: the attentional focus on catastrophe. Anyone who argues against regulation will be seen as being so cold-hearted or cavalier as to not care about the catastrophe that led to regulation being set up. 

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