Cranes and skyhooks

In his latest contribution to MoneyLaw, Jeff Harrison minces no words in expressing disdain for legal skyhooks:

Monroe Freedman describes some writing about legal ethics as comparable to engineers writing about sky hooks. . . . In short, it is completely irrelevant to anyone but about 10 people who are genuinely intrigued or building resumes. His comments could be applied to all areas [of legal scholarship].

Jeff's rightful condemnation of skyhooks reminds me of Daniel C. Dennett's 1995 masterpiece on the philosophy of science, Darwin's Dangerous Idea: Evolution and the Meanings of Life. Dennett says this of skyhooks: ""Skyhooks would be wonderful things to have, great for lifting unwieldy objects out of difficult circumstances, and speeding up all sorts of construction projects." Id. at 74. Alas, skyhooks not only don't exist; they can't ever exist.

An unhealthy reliance on skyhooks is fatal to any scientific enterprise. That includes law. Dennett's prescription for biology is one that we lawyers would be well served to embrace. For every skyhook on which we have wagered our professional lives, we must strive to build a genuine crane. In biology, that means finding molecular building blocks for every process. Nothing quite that concrete drives legal science. But we would be remiss if we did not seek, in every act of pedagogy and scholarship, (1) to affirmatively propel the enterprise of subjecting human behavior to the governance of rules, (2) by means of a crane real enough to be falsified by empirical tools at the hands of an independent and politically honest broker. In law as in any other scientific discipline, skyhooks have no place. We're too busy building things to accommodate such idle indulgences.

Sky Hook -- One or Two Words?

That actually may be the title of an 80 page law review article with 300 footnotes.  That article has not been written but, if it were, it might be more interesting than most of what is published.

It has been some time since I wrote to complain about the surplus of law review articles. I've forgotten what it came to when I multiplied it all out but, lets see: 200 law schools, 2 reviews per schools, 4 issues per year, 5  articles per issue. I think that is 8000 per year. Five articles per issue is probably high but not when you throw in student notes and comments.

That seems like way too many to be of any use especially if you agree with my friend who said to me: "Jeff, what are we doing? Law schools are not good professional schools, they are not really graduate schools, and the vast majority of teachers are not scholars." I would have put the last part of that a bit differently. I'd say, whether they are or could be scholars, they do not do that much scholarship. By that I mean something other than a brief for one side of an issue or another.

So, 8000 articles but it gets worse. In a recent article, Monroe Freedman describes some writing about legal ethics as comparable to engineers writing about sky hooks. Plus, they write about the implications of sky hooks for air traffic. In short, it is completely irrelevant to anyone but about 10 people who are genuinely intrigued or building resumes. His comments could be applied to all areas.  In fact, the most skyhooky article I have ever seen was about the efficient breach and recently published by the Virginia Law Review.  I think these articles are mainly written by privileged people who would be happier in other departments but the money and jobs are not there. While not  privileged, I do not exclude myself. I can spend hours wondering about the efficient breach when I actually do not think it exists and, if it did, we would not know it. But it still spins around in my head (but perhaps not in print since my own offering is still looking for a home).

Oh no, it gets even worse than worse. What we do to the people we hire? We tell them to add to the total or they will lose their jobs. In short, they are required to make a bad situation worse in order to get a life time job making it worse still.

And thanks to the pandering to U.S.N & W.R. it gets even  . . . .  worse. If your school is like mine, it is all about numbers. Three articles of almost any quality are better than one very fine article. I would be hesitant to tell a new hire to write one very fine article and expect to get promoted. Like teaching, flash has replaced substance as the standard.

So, is there a point at which this crashes and burns or has it already and what we have now is the debris?

Palestinian article 12(3) declaration headed to the ASP?

Professor John Dugard – together with a number of eminent “scholars and teachers of international law and international criminal law” (including Max du Plessis) – has written to the President of the Assembly of States Parties (ASP) of the International Criminal Court requesting the referral of the question of Palestinian statehood to the ASP. You will recall that in January 2009 the Palestinian Authority lodged a declaration pursuant to article 12(3) of the Rome Statute purporting to grant the ICC jurisdiction over “acts committed in the territory of Palestine since 1 July 2002”.

Earlier this year, the outgoing Prosecutor Mr. Moreno Ocampo (finally) decided that he lacked the competence (under the Rome Statute) to decide whether Palestine qualified as a “State” for the purposes of article 12(3). Noting that the “competence for determining the term ‘State’ within the meaning of Article 12 rests, in the first instance, with the United Nations Secretary General who, in case of doubt, will defer to the guidance of the General Assembly”. (See Bill Schabas’ analysis here)

The Prosecutor added however:

“The Assembly of States Parties of the Rome Statute could also in due course decide to address the matter in accordance with article 112(2)(g) of the Statute. In interpreting and applying Article 12 of the Rome Statute, the Office has assessed that it is for the relevant bodies of the United Nations or the Assembly of States Parties to make the legal determination whether Palestine qualifies as a State for the purpose of acceding to the Rome Statute and thereby enabling the exercise of jurisdiction by the Court under article 12(1).”

Taking this as their lead, the “scholars and teachers of international” have requested that the matter be placed on the agenda of the ASP at its November session in The Hague. They do so in the belief that “it is in the interests of international criminal justice and the reputation of the International Criminal Court that the question of the statehood of Palestine for the purposes of Article 12(3) of the Rome Statute be properly resolved as soon as possible.”

The experts don’t let the former Prosecutor off the hook for his obfuscation, noting:

“From 2009 to 2012 the former Prosecutor gave the impression that it was for his Office to decide the question of Palestinian statehood for the purposes of Article 12(3) of the Rome Statute and encouraged international jurists to express their views on the statehood of Palestine for the purposes of making such a determination . We are disappointed that after three years the Prosecutor should decline to answer this question and instead refer it to the United Nations or the Assembly of States Parties.”

The letter was endorsed by: Georges Abi-Saab, Susan Akram, Ove Bring, Eric David, Anton du Plessis, Max du Plessis, Mathias Forteau, Vera Gowlland Debbas, Larissa van den Herik, Victor Kattan, Michael Kearney, Marcelo Kohen, Chantal Meloni, André Nollkaemper, Roger O’ Keefe, Alain Pellet, Bill Schabas, John Quigley, John Reynolds, Jean Salmon, Ben Saul, Nico Schrijver, Iain Scobbie, Carsten Stahn, Sébastien Touzé, Paul de Waart, William Thomas Worster, and Liesbeth Zegveld.