human rights

Ideologies Undermine Attorney-Client Relationship, National Sovereignty, and Protection Against Crime

by Hans Bader on April 27, 2011

in International, Legal

At the Washington Examiner, I discuss the implications for the attorney-client relationship of a law firm’s decision to dump a client after signing a contract to represent it in the litigation over the Defense of Marriage Act. I also discuss the ideological double standards at work in the legal profession, and the potential implications of the decision for civil defendants in lawsuits. The Washington Post criticizes the firm’s about-face here. Law professor Jonathan Adler comments here.

At the Examiner, I also recently discussed the role of nebulous, fabricated , ideologically-driven norms of “customary international law” in undermining countries’ criminal-justice systems and sovereignty, and the courts’ seeming lack of empathy for victims of violent crime in places like Illinois.

Regulation of the Day 142: Ladies’ Night

by Ryan Young on June 15, 2010

in Nanny State, Personal Liberty, Regulation, Regulation of the Day

Ladies’ night bar specials are illegal in Minnesota. They are unfair gender discrimination, according to the Minnesota Department of Human Rights.

Of course, few of the people actually affected by this blatant discrimination have a problem with it. Women save money on drinks. Men who buy women drinks save money. And by increasing the female-to-male ratio, ladies’ nights make men happy for other reasons.

If anything, enforcing the ladies’ night ban is a waste of state resources at a time when Minnesota is facing a severe budget crunch.

So why are regulators bothering? Blame lawyers. A separate case in New York has brought publicity to this divisive issue:

New York attorney Roy Den Hollander has for years made his living filing gender discrimination complaints for men, including himself.

Who cares? He does.

“[Men] have to pay more for the services [clubs] offer just because an accident of nature made them one sex or another?” he said. “That’s the basis of discrimination, and it shouldn’t be allowed.”

Or Mr. Hollander could simply choose to patronize bars that don’t do ladies’ nights. Other people seem to enjoy that particular form of gender discrimination. Let them.

Corporate Human Rights?

by Ryan Young on October 6, 2009 · 1 comment

in Deregulate to Stimulate, Economy, International, Legal, Regulation, Tech & Telecom

Over at the Detroit News, Hans Bader and I explain why corporations have human rights despite not being human. The reason why? Transaction costs.

This has implications for everything from Intel’s EU antitrust battle to newspapers’ free speech rights.

Do Corporations Have Human Rights?

by Ryan Young on September 10, 2009

in Deregulate to Stimulate, Economy, International, Legal, Regulation, Tech & Telecom

Intel’s defense in its EU antitrust case has taken the surprising line that the company’s human rights were violated. Over at Real Clear Markets, CEI colleague Hans Bader and I take a closer look. We conclude that Intel actually has a pretty good argument.

Corporations have human rights because doing so greatly reduces transaction costs: “suppose your company wants to buy some computer chips from Intel. You could have each shareholder sign the sales contract – good luck finding them all – or you could treat Intel as a person with the right to sign a contract, and the obligation to honor it. To deal with one person or millions? That is why corporations have legal standing as individuals.”

In short: no corporate rights, no modern economy. No exaggeration. There is a reason why legal conventions emerge as they do, even if they appear strange at first glance.

Iain Murray was kind enough to point out to me that the idea of corporate human rights has very deep roots. The 18th-century legal scholar William Blackstone, in his revered analysis of the English common law, wrote that corporations have the right “[T]o sue or be sued,, implead or be impleaded, grant or receive, by its corporate name, and do all other acts as persons may.”*

*William Blackstone, Commentaries on the Laws of England, Volume 1: Of the Rights of Persons, (Chicago: University of Chicago Press, 1979 [1765]), p. 463.

Why Intel’s Billion Dollar Fine Violates Human Rights Convention

by Hans Bader on August 10, 2009

in Intellectual Property, International, Legal, Odds & Ends, Tech & Telecom

Intel alleges that its due process rights were violated by a massive $1.45 billion fine recently imposed as a result of a one-sided antitrust investigation that excluded evidence of its innocence. It says that a biased investigation by the European Commission violated the European Convention on Human Rights. Despite its title, the Convention protects not just humans but also “non-governmental organisations” like corporations, as its text and many court rulings confirm.

I think Intel has a strong case. But some commentators have greeted Intel’s argument with scorn. They say it can’t rely on human rights because it is a corporation and not a human being. They also say that the fine can’t be challenged because it is civil, not criminal — even though the Convention protects due process in both civil and criminal proceedings, and treats massive penalties like the one imposed on Intel as criminal, not civil, because of their punitive nature.

In May, the European Commission fined Intel a record-setting $1.45 billion dollars for violating EU antitrust law for allegedly using rebates to potentially penalize clients who purchased too many computer chips from a smaller rival. “Intel is the world’s biggest computer chip maker and controls roughly 80% of the computer chip market.”

Recently, however, the Commission’s proceedings against Intel were criticized for unfairness by the EU’s own ombudsman: “The European Union’s ombudsman has issued a rare rebuke of the bloc’s antitrust regulator, saying it failed to record ‘potentially exculpatory’ evidence from a witness in its investigation of chip giant Intel Corp.”

Despite this unfairness, Intel has been criticized for even raising a due process claim, under the theory that companies don’t have “human rights.” A writer in Forbes Magazine claimed that “the chip giant is grasping for straws with its ‘human rights’ appeal against Europe’s $1.5B fine,” since the “idea of a company appealing to recognize its ‘human rights’ sounds a little odd.” Intel’s argument drew a hail of scorn among commenters in response to a blog post at Ars Technica, including the following reactions: “Please destroy corporations who claim their human rights were violated,” “I had never laughed that hard . . . .before,” and “Any corporation that claims personhood for the purpose of asserting human rights opens a very scary Pandora’s Box.”

But the text of the European Convention on Human Rights is clear that it does not apply just to humans, stating in Article 34 that “any person, non-governmental organisation or group of individuals claiming to be the victim of a violation” may seek redress. For that reason, court rulings have routinely applied the due-process protections of Article 6 of the Convention to corporations. See Michael Addo, Human Rights Standards and the Responsibility of Transnational Corporations (1999) at pp. 194-95 (discussing four such cases, including (1) Dombo Beheer v. Netherlands (1993), (2) Editions Periscope v. France (1992), (3) Union Alimentaria Sanders SA v. Spain (1989), and (4) Societe Stenuit v. France (1992)).

It is odd to see the media disparage the idea of a company having rights, given the fact that media companies constantly invoke the First Amendment and other constitutional rights, like the right to a public trial. The most important First Amendment cases in the past half century have been brought by media companies, such as New York Times v. Sullivan (1964), which overturned a damage award against a media company for libel (and in the process radically cut back the reach of American defamation law), and New York Times Co. v. United States (1971), which ruled in favor of two media companies seeking to publish the Pentagon Papers. Most constitutional rights have been held to apply to corporations (and corporations in general, not just media corporations).

Denying a corporation like Intel the ability to raise human-rights challenges would harm human beings: its shareholders, whose quarterly earnings were wiped out by the massive fine imposed on it by the European Commission, leaving them with a $398 million loss. Allowing due process violations to go unremedied is particularly dangerous in antitrust cases, since antitrust law is often vague and unpredictable and subject to differing interpretations.

And as lawyer Kimberly Curtis notes, Intel is not alone in protesting the EU’s handling of antitrust cases. “Intel and a growing number of other companies argue that the EU method of investigating antitrust violations is contrary to European human rights law since it is a political appointee who oversees the investigation and decides guilt,” in an administrative proceeding in which an appointee acts as prosecutor, judge, and jury. This “calls into question the EU’s practice of having a political appointee — the current antitrust commissioner is Neelie Kroes of the Netherlands — who supervises investigations, and then decides whether the company is guilty and what the punishment should be.”

Moreover, the exclusion of exculpatory evidence in the Intel case was strikingly similar to a human-rights violation found in a landmark case decided by the European Court of Human Rights, in Dombo Beheer B.V. v. Netherlands (1993) 18 EHRR 213. In that case, the court found that the legal system of the Netherlands had violated the due-process rights of a corporation under Article 6 of the European Convention on Human Rights through a one-sided proceeding that excluded one side’s evidence, while permitting the other’s. It also made clear that the right to a fair trial applies not just in criminal cases, but also in civil litigation: “The Court agrees” that in “litigation involving opposing private interests . . . each party must be afforded a reasonable opportunity to present his case – including his evidence – under conditions that do not place him at a substantial disadvantage vis-a-vis his opponent.”

Huge administrative fines such as Intel’s are subject to particularly exacting scrutiny under the Convention both because of their size and punitiveness, which makes them “criminal” in nature, and the fact that they were imposed in an administrative proceeding that combined “investigative and judicial functions.” That’s the lesson from the European Court of Human Rights’ June 11 decision in Dubus S.A. v. France, which found a violation of a corporation’s rights despite a much smaller penalty and seemingly less egregious facts, where an administrative agency had the power to award potentially large sanctions using procedures similar to what the European Commission uses in antitrust cases.

The court found that the “potentially” “high amounts” of the penalties the agency could impose made its proceedings criminal in nature, and that its “combination of investigative and judicial functions” — a feature shared with European Commission antitrust proceedings — subjected its proceedings to heightened human-rights scrutiny. The court ruled that the French Banking Commission violated an investment company’s rights under Article 6 of the human-rights convention by subjecting it to disciplinary proceedings that lacked “independence and impartiality”:

“The Court of Human Rights found that there was no clear distinction between the functions of prosecution, investigation and adjudication in the exercise of the judicial power vested in the French Banking Commission. While the combination of investigative and judicial functions was not, in itself, incompatible with the need for impartiality, this was subject to their being no ‘prejudgment’ on the part of the Banking Commission. The Court stated that there was a need for strict controls, to avoid giving the impression that guilt had been established from the very start of the disciplinary proceedings. The Court of Human Rights also found that Dubus could reasonably believe that it was prosecuted and tried by the same people, and consequently could entertain doubts about the impartiality of the decision of the Banking Commission, which, in its various capacities, had brought disciplinary proceedings against it, notified it of the offences and imposed the penalty. Interestingly, the Court of Human Rights also held . . . that the penalties in the form of fines were penal in character given the high amounts that could, potentially, be imposed.”

As the EU Law Blog notes, this ruling is “significant” for antitrust cases like Intel’s “because the procedure used by the European Commission in antitrust cases is rather similar (but not identical) to the one applied by the French Banking Commission.

Similarly, Kimberly Curtis notes, “the massive size of recent fines” in EU antitrust cases

“suggests that the fines are ‘deterrent and punitive’ and therefore implies that they are criminal in nature. Cases from the European Court of Human Rights in Strasbourg detail what constitutes a criminal case, and one factor is the severity of the punishment. . . billion dollar fines are quite severe. But criminal cases are overseen by an impartial tribunal and defendants are allowed to present a defense, two things guaranteed under European human rights law through the European Convention on Human Rights and two things that the current EU antitrust system lacks.”

It may well be that European courts will be reluctant to overturn what the European Commission has done to Intel, given that a ruling in its favor might call into question the Commission’s handling of other high-profile antitrust cases that have likewise led to large fines. Forbes reports that “in an interim hearing on this case, the president of the Court of First Instance” refused to grant Intel the relief it sought.

But since that hearing, the EU Ombudsman has rebuked the Commission for its unfair treatment of Intel. Indeed, Intel seems to have been treated worse than other litigants whose rights under the Convention were found to have been violated. In light of the strong evidence that Intel’s rights were violated, the European courts may have no principled alternative other than to rule in favor of Intel.

Tourism Bill to Be Combined With Anti-Civil-Liberties Hate Crimes Bill

by Hans Bader on June 16, 2009

in International, Legal, Nanny State, Odds & Ends, Personal Liberty, Politics as Usual, Sanctimony

If you were a tourist, would you like to come to a country where you could be tried twice for the same crime — even if you were found innocent the first time around? Not me. But the Senate will likely attach a bill that promotes such reprosecutions to the Travel Promotion Act, reports the Christian Science Monitor. Liberal Senators plan to amend the Travel Promotion Act, a bill to attract international tourists to the U.S., by combining it with a deeply controversial federal hate-crimes bill. The hate-crimes bill’s supporters want to allow people who have been found not guilty in state court to be reprosecuted all over again in federal court.

By adding the hate-crimes provisions as an amendment to an unrelated bill, they hope to prevent the hate-crimes provisions themselves from being amended by Senators seeking to limit the reach of federal hate-crimes law. The hate-crimes legislation will likely “be amended to the Travel Promotions Act . . . which is scheduled to be voted on this week. The report cites a Democratic source as saying the legislation would be approved by Wednesday.”

On April 29, the House voted 249-to-175 to pass the federal hate crimes bill, which the bill’s supporters explicitly want to use to prosecute people already found innocent in state court all over again in federal court. Such reprosecutions are, sadly, allowed under a Constitutional loophole known as the “dual sovereignty” doctrine, which says that state and federal governments are different sovereigns, and that double jeopardy only applies when you are prosecuted twice by the same sovereign. (This loophole was established in the Supreme Court’s 5-to-4 Bartkus decision, over a stinging dissent by Justice Black).

In the past, the possibility of reprosecutions was viewed as a vice, not a virtue, and civil-rights advocates and lawmakers alike have sometimes cited this risk in opposing bills broadening the reach of federal criminal laws. But civil-rights groups now view double jeopardy as a virtue when it comes to people accused of hate crimes. They consider hate crimes so terrible that not even innocence should be a defense.

The latest example of this comes from the Leadership Conference on Civil Rights (a coalition of hundreds of liberal civil-rights groups including the ACLU), and the Mexican American Legal Defense and Educational Fund in a May 5 blog commentary entitled, “Pennsylvania Teenagers Acquitted of Hate Crime; Federal Law Needed.” It approvingly quotes the General Counsel of MALDEF arguing that the federal hate-crimes bill is needed based on not-guilty verdicts like the recent acquittal in state court of teenagers accused of a hate crime against an illegal alien from Mexico: “Last week, the House of Representatives passed the Local Law Enforcement Hate Crime Prevention Act, which will . . . give federal government jurisdiction over prosecuting hate crimes in states where the current law is inadequate. ‘[T] his verdict underscores the importance of the passage of this Act,’ said Henry Solano, MALDEF interim president and general counsel. ‘It is time for the Department of Justice to step in and bring justice to the Ramirez family and send a strong message that violence targeting immigrants will not be tolerated and will be prosecuted to the full extent of the law.’ The Justice Department is currently investigating whether to prosecute the two teenagers under federal civil rights statutes.”

By contrast, four members of the U.S. Civil Rights Commission opposed the federal hate-crimes bill in an April 29 letter, calling it a “menace to civil liberties,” since its “most important effect” will be to circumvent double-jeopardy guarantees. The full U.S. Commission on Civil Rights subsequently decided to oppose the bill.

MALDEF and the Leadership Conference on Civil Rights are not alone in seeking to reprosecute people found innocent in state court. Many supporters of the hate crimes bill want to allow those found innocent to be reprosecuted in federal court. As one supporter put it, “the federal hate crimes bill serves as a vital safety valve in case a state hate-crimes prosecution fails.” The claim that the justice system has “failed” when a jury returns a not-guilty verdict is truly scary and contrary to the constitutional presumption of innocence and the right to trial by jury.

But it is a view widely shared among supporters of the hate-crimes bill. Syndicated columnist Jacob Sullum pointed out in 1998 that Janet Reno, Clinton’s Attorney General, backed the bill as a way of providing a federal “forum” for prosecution if prosecutors fail to obtain a conviction “in the state court.”

Supporters of the hate crimes bill also see it as a way to prosecute people even in cases where the evidence is so weak that state prosecutors have decided not to prosecute. Attorney General Eric Holder has pushed for the hate crimes bill as a way to prosecute people whom state prosecutors refuse to prosecute because of a lack of evidence. To justify broadening federal hate-crimes law, he cited three examples where state prosecutors refused to prosecute, citing a lack of evidence. In each, a federal jury acquitted the accused, finding them not guilty.

Advocates of a broader federal hate-crimes law have pointed to the Duke lacrosse case as an example of where federal prosecutors should have stepped in and prosecuted the accused players — even though the state prosecution in that case was dropped because the defendants were actually innocent, as North Carolina’s attorney general conceded, and were falsely accused of rape by a woman with a history of violence (including trying to run over someone with her car) and making false accusations.

Civil libertarians like Wendy Kaminer and law professors like Gail Heriot have criticized the federal hate-crimes bill for taking advantage of a loophole in constitutional double-jeopardy protections.

The hate-crimes bill also violates constitutional federalism safeguards, such as the Supreme Court’s decision in United States v. Morrison (2000).

Supporters of the hate-crimes bill have all sorts of lame rationalizations for disregarding not-guilty verdicts. Hate-crimes activist Brian Levin, who testified before Congress, claims reprosecutions are needed because local jury pools are biased. NOW Legal Defense Fund told Congress that reprosecutions are appropriate if local prosecutors had “inadequate resources” or were of “questionable effectiveness.” (These rationalizations make no sense and have no principled limits: there is no evidence that state juries are more biased than the federal juries that would hear federal hate-crimes cases, or that they are typically biased; and even well-funded prosecutors have complained of having inadequate resources).

Given the politically-charged nature of many hate-crimes trials, Kimberly Potter of New York University was probably right when she told Congress back in 1998 that if the federal hate crimes bill is enacted, “the acquittal of [hate-crimes] defendants in state court will frequently trigger demands for federal prosecution.”

The bill’s sponsors seldom talk about that controversial aspect of the bill, however, when addressing the general public. Instead, they trumpet the fact that the hate-crimes bill would include gays, lesbians, and transgendered people among the classes of people it covers (the existing federal hate-crimes law only covers race, but not gender, sexual orientation, or disability, and it does not reach most hate-crimes, but rather only those that involve federally-protected activities).

The bill’s supporters, such as the National Center for Lesbian Rights and the ACLU, claim the law is needed because of the case of Angie Zapata. Zapata is a transgender woman whose lover killed her when he found out she was biologically a man. But this argument makes little sense, given that Zapata’s killer was swiftly convicted and sentenced to life in prison without the possibility of parole by a Colorado state court, which found the killer guilty of both murder and hate crimes. (The federal hate crimes bill does not provide for the death penalty, and its maximum penalty is the same one that Zapata’s killer got: life without parole).

But precisely for that reason, a federal hate-crimes law is duplicative and unnecessary. Moreover, even the few states that don’t have hate-crimes laws, like Wyoming, still punish hate criminals under their laws against murder and assault. The killers of Matthew Shepard were given life sentences, which is the maximum penalty available under the federal hate-crimes bill. (Ironically, the Wyoming prosecutor wanted them to get the death penalty, while liberal groups like Lambda Legal, which supports the federal hate-crimes bill, oppose the death penalty in all cases). There is no evidence that any state gives people who commit hate crimes lesser sentences on average than people who commit similarly violent crimes not motivated by bias.

There are plenty of reasons to oppose the federal hate crimes bill, which is known as the Local Law Enforcement Hate Crimes Prevention Act of 2009. But since it was used as a political wedge issue in the 2008 election by both the Democratic Party and President Obama, who support it, there is little doubt that it will pass Congress and be signed into law by the President.

The ACLU long opposed the loophole in Constitutional double-jeopardy protections that the bill is designed to exploit. But it switched its longstanding position in order to back the federal hate crimes bill, apparently believing that civil-liberties must be sacrificed in order to fight hate.

The ACLU’s support for the federal hate-crimes bill is hypocritical for another reason: the bill seeks to circumvent double-jeopardy protections recognized by a treaty called the International Covenant on Civil and Political Rights (ICCPR), which the U.S. ratified (albeit with a long series of reservations, understandings, and declarations — including one dealing with double jeopardy) in 1992. The ACLU has also long argued that the United States should not only comply with that treaty but give it a very expansive interpretation, and not seek to hide behind any reservations made by the U.S. in ratifying the treaty.

Article 14 of the treaty specifically prohibits double jeopardy, without any exception for the loophole relied on by supporters of the federal hate crimes bill, mandating that “No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted.”

But the ACLU conveniently ignores the treaty when it comes to the federal hate-crimes bill, even though the ACLU has sought to stretch the treaty’s language to achieve a host of liberal political goals, such as mandating “affirmative action” in the U.S. The ACLU also has argued for an expansive interpretation of the treaty to require benefits for illegal aliens. For example, the ACLU criticizes the U.S. Supreme Court’s decision in the Hoffman Plastics case, which refused to award illegal aliens backpay against employers who fired them. The ACLU’s bizarre interpretations of the treaty conflict not only with its language, but also with the longstanding practices of most ICCPR signatory countries.

Federalism and Opposition to Illegal Immigration Are Signs of Subversion, Obama Administration Claims

by Hans Bader on April 14, 2009 · 2 comments

in International, Legal, Personal Liberty, Politics as Usual

The Obama Administration’s Department of Homeland Security has developed new profiles of potential terrorists. Its definition of “right-wing extremism” is so ridiculously broad that you yourself may be branded as an extremist! For example, being “dedicated” to opposing “illegal immigration” is considered a hallmark of right-wing extremism by a new DHS report.

I’m a peaceful, Harvard-educated, constitutional lawyer married to an immigrant, but I am included in the list, too. That’s because I urged curbs on “federal authority in favor of state or local authority,” which DHS says is a sign of right-wing extremism. Specifically, I was one of the lawyers who got the Supreme Court to strike down a federal law (42 U.S.C. 13981) as a violation of states-rights (in United States v. Morrison (2000)). (That was only the second time in 70 years that the Supreme Court struck down a law passed under the Constitution’s Commerce Clause, so liberal critics claimed that my federalism-based argument was “extreme” — even though it was later vindicated by the Supreme Court).

I guess I shouldn’t be surprised about these false claims, given that the Obama Administration has lied about Supreme Court rulings and broken campaign promises, such as Obama’s pledge to enact a “net spending cut” and not raise taxes on people making less than $250,000 a year.

One would have thought that a belief in federalism, or enforcing immigration laws, would be viewed as an exercise of First Amendment rights, not a harbinger of terrorism. Government agencies that investigate people for their “politically incorrect” views can be held liable for violating the First Amendment, as happened in White v. Lee (2000), where a federal appeals court held that federal fair-housing officials could be sued individually for punitive damages for investigating citizens who spoke out against a group home for the disabled (in that case, mentally-ill substance-abusers).

The Department of Homeland Security’s incompetence is legendary.  It damaged airline security, which already was badly in need of improvement after 9/11, through its poor oversight over the federal Transportation Security Administration. The TSA fails to catch fake bombs three times as often as private security companies, and 2.5 times as often as the private companies the TSA replaced after 9/11. Obama would make things worse by implementing collective bargaining at the TSA — making it even harder to dismiss incompetent employees.

The Administration is no more competent overseas, where an indecisive White House is one factor in the spread of piracy. Piracy is rampant in the crucial shipping lanes off the coast of Somalia partly due to restrictions in a treaty that the U.S. has not ratified yet — but which is often described as “customary international law” binding on all nations. Partly as a result of the LOST Treaty, billions of dollars worth of cargo, and human lives, have been lost due to piracy. Harold Koh, nominated by Obama to be the State Department’s chief lawyer, argues that “customary international law” like LOST is binding on the U.S., even when it is reflected in treaties that the U.S. has refused to sign. Bizarre European human-rights conventions also are thwarting action against the pirates.

International “human rights” norms have been twisted into a restriction on freedom, rather than a way of protecting it. It’s now frequently claimed that hate speech, defined to include criticism of any religion, is a violation of international human-rights norms. Self-styled “human-rights” lawyers also claim that “customary international law” dictates a host of controversial requirements that few countries would voluntarily adopt on their own, like banning Mother’s Day as sexist, and mandating quota-based affirmative action. An international committee has claimed that human-rights norms require “redistribution of wealth,” “affirmative action,” “gender studies” in academia, government-sponsored “access to rapid and easy abortion,” “comparable worth,” and “the application of quotas and numerical goals and measurable targets aimed at increasing women’s political participation.”