Thursday, July 12, 2012

Just enjoy the show

Moneyball movie

For nearly six years, MoneyLaw has asked us to pause in law's pleasures and count its many fears. The All-Star Break is the annual eye of the storm in the ecclesiastical calendar of the Church of Baseball. These moments provide the perfect occasion for reflection and introspection.

From the beginning, MoneyLaw has drawn its literary inspiration from Moneyball. In 2011, after at least one major false start, the big screen finally provided a home for Michael Lewis's bestselling profile of Billy Beane and his pursuit of the art of winning an unfair game.

The movie version of Moneyball is a distinct and worthy work in its own right. Among its subplots, the movie highlights the quiet heroism of Scott Hatteberg, the washed-up catcher that Billy Beane rescued, reclaimed, and repackaged as a first baseman who could run up pitch counts, draw walks, and bash long balls. Hatteberg ultimately brought more honor to the Oakland uniform than the likes of Mark McGwire, Jason Giambi, and Jose Canseco.


Perhaps the movie's most pleasant surprise was its musical Leitmotif, a catchy tune by Lenka. Those of us who admire Billy Beane know, in some cases far too personally and far too painfully, how hard it can be to win the last game of the season. For that group — for all of us who are just a little bit caught in the middle, for whom life is a maze and love is a riddle — a break in the action represents our best chance to let it go and just enjoy the show:

Wednesday, July 11, 2012

The Linda Hypothetical and Testing

Most readers are familiar with the Kahneman and Tversky  classic Linda hypothetical which involves this fact pattern and the follow-up question: "Linda is thirty-one years old, single, outspoken, and very bright. She majored in philosophy. As a student, she was deeply concerned with issues of discrimination and social justice, and also participated in antinuclear demonstrations.”

Which alternative is more probable?
 (1) Linda is a bank teller.
 (2) Linda is a bank teller and is active in the feminist movement.

Most people choose (2) over one although it is illogical to do so since it includes (1) and involves a joint and, thus, lower probability.

I've never been a believer in the Linda hypothetical. First, I am not sure it tells us as much about logic as it does interpretation. Having listed feminist as a possibility in choice (2), "not a feminist" may be inferred to be included in (1). If so,both are examples of joint probability. I am also not sure if many people know what "more probable" means. Suppose one reads that as "best" answer meaning the one that captures Linda in a more precise fashion. Finally, how about telling subjects this is a test on logic?  In short, is the test a valid test of reasoning?

For law professors, especially those using multiple choice machine graded exams the same questions are relevant.  There are many reasons for choosing a wrong answer and sometimes the answers reveal more about the teaching and testing than the students. On the typical essay exam or multiple choice with explanation test  the teacher can assess the quality of the question by examining why people missed it. Flaws in the questions are revealed. On a machine graded exam the process of "testing the test" needs to happen before the test is used. I wonder how many machine graders either copy the questions from another source and assume the questions are pretested or actually do test the questions by having a sample of students answer the questions and then debrief those giving the wrong answer. I am betting not many. Ironically, when the of issue machine graded testing comes up many of the defenses are also illogical.

Wednesday, July 4, 2012

Kiobel Amicus Curiae Brief

Max and I - along with Anton
- recently submitted an Amicus Curiae brief (available here) to
the US Supreme Court in respect of Kiobel v. Royal Dutch Petroleum Co.
As most of you will know, Kiobel is a landmark case concerning the
application of the U.S. Alien Tort Statute, 28 U.S.C. § 1350 (ATS) to human
rights violations committed outside the US. Beyond its immediate significance,
the decision of the Court will also have a considerable impact on the ongoing
Apartheid Reparations case in the Second Circuit. The brief was written at the request of the
petitioners in response to the following question posed by the Court: “
Whether and under what circumstances the
Alien Tort Statute, 28 U.S.C. § 1350, allows courts to recognize a cause of
action for violations of the law of nations occurring within the territory of a
sovereign other than the United States.”

More specifically, we were asked to consider the
extent to which South African courts would entertain delictual suits for
events taking place within the territory of foreign states and
whether the violations of the nature covered
by the ATS would be considered wrongful, and therefore actionable, as delicts
under South African law.

In essence our brief argued that under South
African law, the equivalent of the U.S. doctrine of transitory torts is embraced
as a matter of common law.

First, although incidences of doing so are
rare, South African courts can as a matter of jurisdiction consider torts—or
delicts—committed outside the territory of the Republic. Although the statutory
jurisdiction of South African courts is limited to 'causes of action' that take
place within our territory (see section 19(a) of the Supreme
Court Act
59 of 1959), under the common law there is precedent
for the exercise of 'extraterritorial civil jurisdiction' (see Hill v Wallace
[1829], Menzies’
(1828-49), Vol. I, 347; Mackay v Phillip [1830], Menzies’ Reports (1828-49),
Vol. I, 355;
Rogaly v General Imports (Pty) Ltd 1948 (1) SA 1216 (C).) Notably, while our
common law is Roman-Dutch in origin, in the recent case of
[1]Gallo Africa Ltd and Others V Sting Music (Pty) Ltd
and Others
2010 (6) SA 329 (SCA) the Supreme Court of Appeal in substance accepted
English common law's 'Mocambique rule' in respect of the exercise of
jurisdiction over immovables. The counterpoint of that rule is the doctrine of
'transitory torts', which forms the basis of the ATS.

Second, as a matter of substantive law, the
acts governed by the ATS —violations of the law of nations— would be actionable
under the South African law of delict as such conduct would be considered
wrongful. This characterization could take place in two ways: (i) Through the direct application of the relevant
customary international law norm in terms of section 232 of the South African
Constitution which provides that “[c]
ustomary international law is law in the
Republic unless it is inconsistent with the Constitution or an Act of
(ii) Indirectly,
through the classification more generally of such conduct as consequently
wrongful (i.e. against the legal convictions of the community). Here, the
criminalization of certain international human rights violations domestically,
for example under the ICC Act 27 of
2002, would be the lighthouse for a South African court considering the
wrongfulness of such conduct for the purposes of civil liability.

Moving beyond Kiobel, if
it is the case that South African law (i) allows our courts to exercise
extraterritorial civil jurisdiction, and (ii) recognizes certain breaches of
customary international law as wrongful for the purposes of civil liability, there is nothing stopping individuals from bringing claims
for extraterritorial human rights violations (such as those alleged in Kiobel) before South African courts. An
interesting prospect indeed…

The Guilded Age

From The Guilded Age (a.k.a. The End of the American Lawyer's Guilded Age), my contribution to the The Online Library of Law and Liberty:

In our time, the free movement of labor, capital, and information has created a global economy that moves by the gigahertz. In this economic milieu, education is worth what its purchaser can earn with it. . . . Legal education is what enables students to earn a living in life, and nothing more pretentious.

My commentary appears alongside two responses:

Sunday, July 1, 2012

Report: Implications of the AU Decision to Give the African Court Jurisdiction Over International Crimes

Max du Plessis has written a recent paper (ISS Paper 235) on
'Implications of the AU Decision to Give the African Court Jurisdiction
Over International Crimes'.  It is available here.

paper considers the decision by the African Union  (AU) to expand the
jurisdiction of the African Court of  Justice and Human Rights to act as
an international criminal court with jurisdiction over the
international crimes of genocide, war crimes and crimes against
humanity, as well as several transnational crimes. At an AU meeting from
14–15 May 2012 a draft protocol to effect that expansion was approved
and has been recommended to the AU Assembly for adoption.

short time frame which the AU has provided for the  complex task of
drafting the protocol occurs against the backdrop of the fractured
relationship between the AU and  the International Criminal Court (ICC).
The process of expanding the African Court’s jurisdiction is fraught
with  complexities and has implications on an international, regional
and domestic level. All these implications need to be considered,
particularly the impact on domestic laws and obligations, and the
relationship between African states parties to the Rome Statute of the
ICC, the ICC itself and the African Court.