Business & Human Rights Summer School, Pisa - Save the Date and Application link

 

 

My dear friend and colleague Chiara Macchi (Assistant Professor of Law (Tenure Track); Jean Monnet Centre of Excellence on Corporate Sustainability and Human Rights Law; Wageningen University – Law Group) also on behalf of Angelica Bonfanti, Marta Bordignon and Marco Fasciglione, has just distributed information about the 2025 Business and Human Rights Summer School (an undertaking that is now in its 8th year) which I am delighted to pass along:

I’m very happy to announce the dates for the 8th edition of the Summer
School Business and Human Rights, taking place on June 23-27, 2025. I’m
even happier to announce it will take place in my home town, Pisa, at the
Sant’Anna School of Advanced Studies, with the generous collaboration of Dr
Giuseppe di Vetta.

The application link is already active and can be found here, together with
all deadlines and fees:
https://www.santannapisa.it/en/alta-formazione/BHR-Summer-School-2024-2025

We are working on the programme, which will be published in the next few
weeks, once most of our invited speakers will have confirmed their
participation. I will share it with you then. In the meantime, the
programmes of the past editions can be found on the Summer School’s
website: https://www.bhrsummerschool.com/

Please, circulate to anyone who might be interested, keeping in mind that
the Summer School can be relevant to both academics and practitioners.

Course description and program information follows below.

 

Mr. Biden Delivers his Farewell Address; Full Text and Brief Reflections

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Since the founding of the American Republic many presidents have chosen to deliver farewell addresses. They serve many purposes; some of them fading into well deserved obscurity (if only because they were precisely and intensely relevant to their time and place), some deservedly so for other reasons, and some have acquired a substantial space in shaping the narratives that have helped shape the lifeworld (lebenswelt) of this Republic. These farewell addresses have become far more common from the 20th century--enhanced perhaps by the availability of technology that made both their production and impact potentially far greater. That appears prominently in a current tabulation of Presidential addresses all delivered live, the transcription of which lingering afterwards as a memorial of the event and the projection into the future of the text. (The American Presidency Project).

George Washington	September 19, 1796	n/a	(written)	6073
Andrew Jackson	March 4, 1837	n/a	(written)	8247
Modern Era: Broadcast on Radio and Television
Harry S. Truman	January 15, 1953	10:30 pm	Oval Office	3748
Dwight D. Eisenhower	January 17, 1961	8:30 pm	Oval Office	1843
Lyndon B. Johnson *(1)	January 14, 1969	9:05 pm	House Chamber	4146
Richard Nixon *(2)	August 8, 1974	9:01 pm	Oval Office	1796
Gerald R. Ford *(3)	January 12, 1977	9:10 pm	House Chamber	4724
Jimmy Carter	January 14, 1981	9:00 pm	Oval Office	2167
Ronald Reagan	January 11, 1989	9:02 pm	Oval Office	3305
George Bush	January 5, 1993	1:22 pm	West Point	3298
William J. Clinton	January 18, 2001	8:00 pm	Oval Office	1109
George W. Bush	January 15, 2009	8:01 pm	East Room	1862
Barack Obama	January 10, 2017	9:02 pm	Chicago	4751
Donald Trump	January 19, 2021	videotaped	Blue Room	2773
Joseph R. Biden, Jr.	January 15, 2025	8:00 pm	Oval Office	2428

(The American Presidency Project)

Some presidents in more recent times chose to avoid the spectacle (and perhaps the possibilities or risks) of a farewell address. Gerhard Peters, for the American Presidency Project, explains, for example that " Lyndon B. Johnson chose to deliver a "State of the Union" Address as his farewell in 1969; Richard Nixon's resignation announcement is often considered to be his "farewell" address. The next day he delivered a farewell to the White House staff. Those remarks may be considered by some to be his "farewell", and although the remarks were broadcast to the nation, the remarks are directed to his staff. These remarks are available here: "Remarks on Departure from the White House"; Gerald R. Ford chose to deliver a "State of the Union" Address as his farewell in 1977." (The American Presidency Project).

Certainly, George Washington's and Dwight Eisenhower's speeches have acquired a prominence that have made then important elements of the American political discourse. Washington's speech (1796), of course, is famous for the armed neutrality (perhaps morphing into a peace through strength theme from the time of its incorporation into the speeches of Ronald Reagan in the 1980s))--one that remains prominent in political discourse and might have appeared in contemporary guide as a strong (though changed) normative principle of the incoming Trump Administration--as well as for its exhortations against foreign influence of national politics and the deleterious effects of mis- dis- and mal-informaiton (though framed in the terms common to the late 18th century).

Eisenhower's speech (1961), fresher for the contemporary American polity though still quickly receding into the mists and veils of history, was equally famous for its caution against a military-industrial complex.

This conjunction of an immense military establishment and a large arms industry is new in the American experience. The total influence-economic, political, even spiritual-is felt in every city, every state house, every office of the Federal government. We recognize the imperative need for this development. Yet we must not fail to comprehend its grave implications. Our toil, resources and livelihood are all involved; so is the very structure of our society.  In the councils of government, we must guard against the acquisition of unwarranted influence, whether sought or unsought, by the military-industrial complex. The potential for the disastrous rise of misplaced power exists and will persist. Eisenhower's speech (1961),

Pix credit: St Anthony the Hermit tormented by Demons (1426)

It is in this light that one might then approach the farewell address of Mr. Biden (the NY Times Transcript of which follows below). Like its predecessors, the context in which the speech was framed was in its own way unique, the extent and consequences of which remain to be fully understood, much less debated and incorporated into the Republic's political self-cognition. For Mr. Biden, the great adversary turned out to be Mr. Trump, and perhaps vice versa; but Mr. Biden appeared to feel and to act, and to measure his actions as a function of an inverted WWTD ("what would Trump do"). In that context, it was necessary to reify Mr. Trump as something larger than life--the sort of demon figure that for generations before had been a role filled by Mr. Nixon and his Watergate antics. The irony, as I have argued elsewhere, is that Mr Biden and his supporters and allies. The fight against contemporary manifestations of the Great Satan came to dominate much of Mr. Biden's discourse and helped shape not just policy but the political calculus that might well have cost his party substantial support in the 2024 elections. But that is for historians to debate decades from now in a clearer manner. 

These manifestations of great evil--foundational threats to the Republic as he saw them (though like all humans also curiously blind to the manifestations of threat that might have been asserting themselves far closer to home and among friends)--came also to be generalized. Those generalizations, of course, required a human face (even if that face represented an essentialized and reductionist amalgamation as a class or group threat, one for which it seems Mr. Biden (or his speech writers) might have been tempted to draw from and update from Mr. Eisenhower's military-industrial reification. This reified threat now focuses on American (or perhaps, following Rosa Luxembourg, the global class of plutocrats bound more to each other than to any nation-state) plutocracy.

That’s why my farewell address tonight, I want to warn the country of some things that give me great concern. And this is a dangerous — and that’s the dangerous concentration of power in the hands of a very few ultrawealthy people, and the dangerous consequences if their abuse of power is left unchecked. Today, an oligarchy is taking shape in America of extreme wealth, power and influence that literally threatens our entire democracy, our basic rights and freedoms and a fair shot for everyone to get ahead. We see the consequences all across America. And we’ve seen it before. (farewell address of Mr. Biden)

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These folks, many of which also populate the donor classes of his own party (and perhaps as well those who formed that group that, from his perspective, might have pressured him into relinquishing the nomination of the Democratic Party for his re-election campaign). But Mr. Biden is not that indiscreet; and rather than make that allusion he chose to merge the long campaign to demonize Mr. Trump with the warnings about the danger of plutocracy that appears to be one of the demonic characteristics of the prior administration. Mr. Biden hearkened back to the glorious battle against the "Robber Barons" of the post Civil War period, and the glorious and successful campaign to make "the wealthy play by the rules everybody else had (farewell address of Mr. Biden). And then, consciously drawing parallels with Mr. Eisenhower's warnings, Mr. Biden becomes much more specific about which class of plutocrat he is particularly concerned:

You know, in his farewell address, President Eisenhower spoke of the dangers of the military-industrial complex. He warned us that about, and I quote, “The potential for the disastrous rise of misplaced power.” Six days — six decades later, I’m equally concerned about the potential rise of a tech-industrial complex that could pose real dangers for our country as well.

Of course, and again, that threatening class is well marbled within the donor-consultant-complex that has deeply penetrated both of the major political parties. But one can suppose that there are always nice plutocrats, or reformed plutocrats. Those details would have to be worked out by the intelligentsia fueled by donor money. And then of course one gets a headache. Still the point is a valuable one as a general proposition: the arrogance of wealth, like that of any collective that believes by its status or authority or material condition to be superior to others and thus with respect to whom the general expectations of social relations and the rules through which that may be manifested do not apply, ought to be challenged, opposed and curtailed. Yet the systemic nature of hierarchy and the expectations--one that runs throughout all social and political orders, that people up any hierarchy are entitled to a deference that is different that that allowed their inferiors (however that is measured) remains substantial problem.

That is not Mr. Biden's point--he tends to speak (through his speech writer) in the lower case. He means instead to draw a line from scary plutocrats in the even scarier tech industry to his national and) international rules based order. Fair enough, but the tension between intent and language permits a bit of artistry in the construction of meaning for those willing to take the time and who find in that exercise a useful instrument to be put to whatever task they think appropriate.

That brings us back to Mr. Biden's malevolent spiritual representation of the evil descried--Mr. Trump. One cannot, in this sense, read Mr. Biden without reading in parallel Mr. Trump, who represents the mirror against which Mr Biden found it useful in its last years of politics to see the world--encouraged, of course, by those inner circle leaders of the Democratic Party and their consultants, intellectuals and donors. It makes sense, then, in some perverse way, to consider Mr. Trump's farewell speech as an important element of the speech that signaled the end of Mr. Biden's presidency. Both are bookends on the current state of the discourse and cognitive possibilities of the Republic, and neither appears to be going away. 

 

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And, it might follow, and perhaps as a summary of the great legacy of Mr Biden's presidency, that the construction of his own vision as a function and a reaction to the norms, values, ideas, impulses, and social constructions which have been poured into the body of Mr. Trump. For good or ill, and I am not in a position to judge, and in a large sense one might, at last and in its most mature manifestation, seethe way Mr. Biden's vision is constructed against its antithesis (the Adversary and their manifestations oozing throughout the body politic); and thus makes the antithesis-Adversary an essential element of the vision itself. This is of course the great risk of all visions that are built against another thing (vision etc.), the risk that in that building one incorporates as an essential element the thing that one seeks most heartily to purge. The text of the speech follows (along with the parallel farewell address of Mt. Trump ) and links to the texts of the Eisenhower and Washington farewell addresses both of which play a role here. Judge for yourselves.

"Taking Steps to Support the Cuban People": Mr. Biden Removes Cuba From List of State Sponsors of Terrorism and Cuba Frees 553 Prisoners

 

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And people say there is no room for state market based transaction at the state level.. As the hours wind down to the end of his Presidency, and much as Mr. Trump did  as his also wound down in 2021 (and so back to the 1790s) the exiting U.S. President used their final hours in office to entrench their agendas or build barriers to the development of those of their successors.

Cuba is an easy space in which to act in this context.  using the traditional fetish term "supporting the Cuban people" (one that is richly represented in statute, regulation, and activity of the American state sector) Mr. Biden had announced for him (through a Statement from Press Secretary Karine Jean-Pierre on Steps to Support the Cuban People which is set out in full below) announced a set of strategically last minute "steps" that are designed to hobble the ability of the incoming administration to quickly implement their own policy preferences (a tactic certainly not unique to this presidency).

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The three steps were part of a deal that appeared to be brokered through the Catholic Church (a role the Church has played in connection with US Cuba affairs before). That was smart in the sense that ot makes it harder to describe the measures as purely strategic and instrumental; though one can recall that the current Pontiff has long made known his position (and thus the position of the Church--as far as that goes given the power and longer lasting authority of the curia). The three steps, in this light are hardly unexpected--and their timing are meant to produce maximum negative impact on the incoming administration. Still, the effort to align this last minute set of policy decisions with the position of the Catholic Church and to some extent to use the Church as a shield for national political decision making may be something that requires some deeper thinking. That does not mean it is bad, it just suggests significance and unintended consequences; and this administration has appeared to show a remarkable inability to consider unintended consequences. In this case the shielding will mask rather than reduce opposition. The counter thrusts will come from the flanks.

In any case earlier roll out of these measures especially during the election would have been thought imprudent because it might have been thought  to affect the outcome of the election.  But given that outcome, the taking of the measures now suggest its political and partisan nature. Again fair--that has been the essence of American politics at this level from time to time and not unexpected.  BUt like all of these moves it will both be remembered and in the countering perhaps cause greater harm to the perfectly good intentions behind them. 

"First, today we notified Congress that President Biden determined Cuba should no longer be designated as a State Sponsor of Terrorism. Secondly, we notified Congress that the President issued a waiver for Title III of the Helms-Burton Act, otherwise known as the Libertad Act, for a period of six months. Finally, President Biden rescinded the 2017 National Security Presidential Memorandum 5 on Cuba policy to eliminate the so-called “restricted list” and by extension the additional regulations on engagement by U.S. persons and entities with Cuban persons and entities, beyond that which is currently prescribed in U.S. legislation. We have also been informed by the Catholic Church that the Cuban government will soon begin releasing a substantial number of political prisoners." (Statement from Press Secretary Karine Jean-Pierre)

 

In some sense one light read this as a personal and nicely wrapped present to Senator and perhaps soon Secretary of State Marco Rubio, whose views  on US Cuba issues (and well as US China issues. . . .as well as US-Cuba-China issues) are well known. But this is the kind of short term "gift" that will keep on giving.  That may weigh less on the consciousness of a person at the sunset of a long and historic career. But those who will be around to bear the consequences might have a different view.

At least in this case the quid pro quo was honored in its own way by the Cuban State.

Cuba freed 553 political prisoners Tuesday after the Biden administration announced it was removing Cuba from the list of state sponsors of terrorism and taking other “goodwill” actions. The Catholic Church had been negotiating with the communist-run government over the release of the prisoners. Most of them were jailed following unprecedented islandwide protests in July 2021. A brutal crackdown initially led to the arrests of more than 1,000 people. Many faced prison sentences of up to 30 years. "I thank all those who contributed to the decision announced today by the United States to remove Cuba from the list of state sponsors of terrorism, where it should never have been," Cuban President Miguel Díaz-Canel wrote on X. "Together with two other measures adopted, they have had a high cost for the country and Cuban families." (Cuba frees 553 prisoners after Biden removes it from state sponsors of terrorism list)

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And, at least with respect to the listing of the designation of Cuba as a state sponsor of terrorism there is a remarkably delightful twist of the revenge screw. It was Mr. Trump, after all, who  had designated Cuba as a state sponsor of terrorism shortly before he left office in January 2021; that, in turn reversed a decision of the Obama administration removing the designation.  What that suggests is that this development might have a very short half life. Of equal interest was the waiver of Title III of the Helms Burton Act, but that might be more for show than for its effect--for the moment the rate of actions under Title III have not been as significant as initially feared (here)--so heat and smoke but a smaller fire. On the other hand, and given its longer term effects, it might be most useful to measure the value of this action by the number of prisoners freed, many of them involved in the popular protests that surged throughout Cuba from 2021. Some some perspectives, for this objective, the price paid in other respects was quire reasonable (for the Cuban response here as reported in CiberCuba).

Except--now Latin American states have a curiously interesting bargaining chip in their own negotiations with an incoming Trump administration that is looking for something from Latin American states that are traditionally more significant to U.S. external policy. That is where the actions sting most. In all of that cycling Cuba, as it has since independence from Spain, continues to serve as a tool of virtually everyone else in its relationship with its North American neighbor--but tellingly also with its powerful regional friends.  And, as always, the best way to manipulate the incoming administration is to challenge it--a lesson well worn in the US since the transition from the Adams to the Jefferson Administration.  

It is interesting, and I end with this, to consider in this light, an opinion essay that appeared in the English language version of the Cuban Communist Party News Organ--Granma (A march against imperial ignominy (17 December 2024). It was written on the eve of a stage managed protest march of the masses against the Untied States and its policies.

In addition to the considerable damage caused to the economy, finances and trade by this aberrant policy, there are the restrictive measures derived from the decision to include Cuba, in a treacherous manner, in the infamous arbitrary and illegitimate list of countries that allegedly sponsor terrorism. It was a perverse move by the Trump administration, a few days before leaving the White House. * * * In May 2024, the State Department removed Cuba from the list of states that "do not fully cooperate" with the United States in the fight against terrorism, further highlighting the infamous and opportunistic nature of the 2021 designation. In defending the rational change of attitude, the Secretary of State, Antony Blinken, not only argued the current position of the Colombian government, but also highlighted Cuba's police cooperation and the non-existence of terrorist elements in Cuban territory. * * * President Biden can put an end to this lie and heed the call of dozens of governments, numerous former presidents and prime ministers, hundreds of parliamentarians, the U.S. Conference of Catholic Bishops and other religious leaders, and thousands of organizations around the world and in the United States itself. In his remaining days in office, President Biden can remove Cuba from the List of Sponsors of Terrorism; he has the authority to do so. If he wants to leave some decency as a legacy in the last days of his political life, he can take that symbolic step. There is still time to do so.

 The response of the Cuban State organs to the action was immediate, and brief--and delivered in the style of the first Trump admnistraiton, via social media and then reported in its Party organ

El Primer Secretario del Comité Central del Partido Comunista de Cuba y Presidente de la República de Cuba, Miguel Díaz-Canel Bermúdez, en la red social X, agradeció «a todos los que contribuyeron a la decisión anunciada por EE. UU. de excluir a Cuba de la lista de Estados patrocinadores del terrorismo, en la que nunca debió estar y que, junto a otras dos medidas adoptadas, ha tenido un alto costo para el país y las familias cubanas» (Gobierno de EE. UU. retira a Cuba de injusta lista de Estados patrocinadores del terrorismo)

Of course, at some point it will be interesting to see how or whether this converges with another area of US relations (eg here).

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Delighted to pass along information about an upcoming ABA Webinar sent by Kristi Bruckner from the ABA Section of Environment, Energy and Resources, Climate Change Committee. The webinar, this  Thursday, January 16 at 11 am ET, is organized in the form of a Community Conversation "COP29 Report Back and Next Steps for Climate Action." This informal conversation is an opportunity to hear from a set of ABA Delegates to COP29 in Baku and discuss next steps for U.S. and global climate action.

Speakers include:Samuel Fonseca de Carvalho Pace University (Attended in Person)
Kristi Disney Bruckner Initiative for Responsible Mining Assurance
John Dernbach Widener University
Amy L. Edwards Holland & Knight
Kamran Jamil U.S. District Court for the Southern District of California
Adam Orford University of Georgia and CLIMA Centre for Climate Change Law & Governance, University of Copenhagen
Uma Outka University of Kansas
Ben Stansfield Gowling WLG

 Register today for this FREE event at: https://ow.ly/XSqK50UFnG9

Just Published: "Edited Transcript of Panel on "How to Become a Full-Time Law Professor--A Workshop for Aspirants"Journal of Legal Education Vol 73(1)

 

 Though it seems like a lifetime ago, but during the last pre-COVID People of Color Conference held at American University, a group of us was asked to discuss our views on becoming a full time law professor. Panelists included Craig Konnoth, Melinda Molina, Anita Sinha and myself.The panel was moderated by the marvelous Alfreda Robinson. An edited transcript of that panel event, including questions, has just recently been published in the Journal of Legal Education Volume 73(1). I was delighted to have been part of the discussion; and in looking back on my own comments I can see how much seems  have changed, though in many ways stayed the same.  In any case an extraordinary group of speakers on an important topic. Great thanks to Ezra Rosser for helping to make this possible.

The Panel edited transcript will be posted online to the Journal of Legal Education's website in short order. My own contribution to the panel follows below and may be accessed on SSRN here.

So-Called Sonic Weapons (Anomalous Health Incidents): Office of the Director of National Intelligence Releases Unclassified Updated Assessment of Anomalous Health Incidents

IThe National Intelligence Council issued an updated Intelligence Community Assessment, an unclassified executive summary of which was approved for release by the Office of the Director of National Intelligence on 9 January 2025, and released for public consumption on 10 January 2025 (ICA 2025-00008-B) an "Updated Assessment of Anomalous Health Incidents" (December 2024). ODNI issued its usual terse announcement on its website as follows:

This Intelligence Community (IC)-drafted and coordinated Intelligence Community Assessment (ICA) addresses the IC’s evaluation of new information possibly related to anomalous health incidents (AHIs) since the publication of the ICA Updated Assessment of Anomalous Health Incidents, ICA 2023-02286, on 1 March 2023.

Download the report here.

About the National Intelligence Council: The National Intelligence Council (NIC) plays a central role in coordinating intelligence products and is responsible for leading analysis across the IC to inform immediate and long-term policy deliberations. National Intelligence Officers (NIOs) serve as the principal subject matter experts to the DNI and national security decision makers on all aspects of analysis related to their regional and functional roles.

Some media organs have taken notice because, once one parses  through its grey and well modulated language, there is an indication that there may be a growing difference of views (or at least likelihood assessment) within the intelligence community (IC) with respect elements of Anomalous Health Incidents.  As Shane Harris put it in reporting for The Atlantic: 

"New information has come to light causing some in the intelligence community to adjust their previous conclusions. And a new report reopens the possibility that a mystery weapon used by a foreign adversary caused Havana syndrome. At the White House, senior Biden-administration officials are more convinced than their colleagues in the intelligence agencies that Havana syndrome could have been the result of a deliberate attack by an American foe. The geopolitical consequences are profound," 

The essence of the fracture (if that is what wants to call it), is in two paragraphs, nicely highlighted in the Executive Summary:

• In judging that it is “very unlikely” that a foreign actor is responsible, five IC components place emphasis on sensitive intelligence reporting continuing to point away from foreign involvement in AHIs, the IC’s investigations of key incidents reported as possible AHIs, and a review of foreign intelligence and research regarding the development of novel weapons. Two components still have moderate-to-high confidence in this judgment, and three components still have moderate confidence. These components also judge it is “very unlikely” a foreign actor has used a novel weapon or prototype device to harm even a subset of the USG personnel or dependents who reported medical symptoms or sensory phenomena as AHIs.

• In contrast, one IC component judges there is a “roughly even chance” a foreign actor has used a novel weapon or prototype device to harm a small, undetermined subset of the USG personnel or dependents who reported medical symptoms or sensory phenomena as AHIs. Another IC component judges there is a “roughly even chance” a foreign actor has developed a novel weapon or prototype device that could have harmed a small, undetermined subset of the USG personnel or dependents who reported medical symptoms or sensory phenomena as AHIs. However, this component continues to assess it is unlikely a foreign actor has deployed such a weapon in any events reported as possible AHIs. Both of these IC components have low confidence in these judgments. These shifts are based on reporting they evaluate to indicate that foreign actors are making progress in scientific research and weapons development.

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The analytic trick here is to read beyond the first couple of lines--a practice that is increasingly difficult in an era  where the brain is equipped only for short bursts of text, and to avoid general summaries that flatten the complexities of their inputs. Moreover, the notice of fracture hides more than it discloses.  One is unaware of who has shifted positions, and more importantly why. 

One key issue seems to revolve around novel weapons.  But novel weapon or prototype suggests the underlying institutional mechanisms and premises that make the design and production of something novel and certainly its prototype possible. One wonders whether, if that is what one is looking for, one may not be looking in the right places. There is even a museum for this that might be as useful for learning about the cognition of gadgetry as it might be about the gadgets themselves (here).

Another may revolve around foreign actors: much of the reporting still embraces 20th  century sensibilities--focusing on State actors.  But surely as events in 2024 make now unavoidable--the hyper-focus on formally constituted state actors as either sources or exclusive users is now somewhat outdated.  Any clever individual  with a very little bit of money can now repurpose all sorts of items in the most curious ways. 

While the stylized fantasy narratives of 007's "Q" represent the high end work of well financed institutions committed to innovation, assuming such things exist, most likely within tightly interlinked systems of cooperation among any number of actors, the 14 year old in their parent's spare room in some part of the world where the gaze of monitoring forces are indifferent can sometimes surprise.   And the crudeness of AHI injury might well suggest not some sophisticated engineering or science, but something far more makeshift. Again one can find only what one is looking for, and if one narrows one's gaze one cannot find what one has dismissed as implausible. 

The mirror cracks. . . . .

In any case, one can only welcome this sort of update. One hopes that further developments will be as revealing as possible, though in that respect national security, and our own interests, may make that impossible. In that case, again, what may be in order at a minimum is a robust program of aid to those affected. 

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Announcing New Multi-Volume Project: International Handbook of Legal Language and Communication (SPRINGER; Anne Wagner, General Editor)

 

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My friend and colleague Anne Wagner (Lille) has undertaken an extraordinarily ambitious and necessary project-- The International Handbook of Legal Language and Communication--all volumes to be published by Springer in the coming years. As the press release notes:

This comprehensive 10-volume handbook features up to 900 entries from leading experts worldwide, making it the most extensive resource in the field of legal language, semiotics, and communication. The international handbook is designed to integrate perspectives from a wide range of jurisdictions globally, ensuring its relevance across diverse legal systems and contexts. This unique international handbook provides in-depth coverage of key topics related to legal language and communication, from foundational principles to cutting-edge developments.

The breadth of subjects covered is quite broad, and as a first step the gist of each of the proposed ten volumes follows:

 

And Speaking of National Security or 'Wie man mit dem Hammer philosophirt' (How to Philosophize With a Hammer)--The Enterprise Ownership, the Domestication (Used in Every Sense) of TikTok and the Apotheosis of the 1st Amendment

 

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I have been writing about the transformation of the national security exception, which appears to be roaring back to life after a generation of efforts to reduce it to insignificance with the parameters of the so-called Washington Consensus, the social collective premises of the EU, and to some extent version 1.0 of China's Reform and Opening Up (eg here, but also here). This apotheosis of the national security exception from historical relic to a more vigorous role in the functioning of social-political-economic systems has not been undertaken without a vigorous rearguard action by forces which, once were the vanguard of progressive sentiment and now are in the ironic position of seeking to defend a system, and its cognitive presumptions, which appear, like Brunhilde in Götterdämmerung, to be riding their horses into the funeral pyre of a system of perceiving the world and its forward pathways that is in the process of dying. 

Or perhaps, it might best be understood as Nietzsche came to see it--as Götzen rather than Götter-dämmerung. That is, that the apotheosis of national security from out of the ashes of the failures of that intensely beautiful vision of convergence that held elites somewhat together for almost a generation, signifies the fall of fetishes (idols; of artifice with divine features) divinities rather than of the Gods themselves  who oer whatever they might be for  the community in which the ordering concepts are going up in flames (Götze versus Götter). But an apotheosis of that sort does not come easy; and the rearguard might, in the process of defending the past, create (perhaps without regard to its wider implications) an even more ostentatious conflagration into which to immolate the system it seeks to defend. 

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These are the thoughts with which I approached the inversions and transformations that have swirled around the April 2024 Protecting Americans from Foreign Adversary Controlled Applications Act (Public Law 118-50) (set out below).  On its face, it represents the determination by those elements of the elected organs of the United States to order certain ownership divestment of a company a product of which has been both wildly popular and also perceived to be a source, or a potential source, of national security vulnerability. It requires divestment within a fairly short period of time and gives the President the authority to extend those time limits once by 90 days. Ostensibly it is completely indifferent to the platform's content and use by its consumers (to the extent that no other laws, properly applied, are violated), nor does it directly seek to shut down the operations of the entity and its much used product (TikTok). However, the operations would be shut down if at the end of the divestment period the ownership of the company within which TikTok is operated continues substantially unchanged (at least with respect to ultimate ownership by or through or traceable to a ‘foreign adversary country’’ defined in 4872(d)(2) of title 10, United States Code as including the Russian Federation, North Korea, the People's Republic of China, and the Islamic Republic of Iran). 

Traditionally, as in Europe and, in their own way, like other systems, States have reserved to themselves some sort of a power (vested somewhere within their constitutional premise universe) an authority to protect the State against adversaries foreign and domestic in accordance with the principles and constitutional orderings of their domestic legal orders (eg here)--and in the modern era also subject to their applicable international legal obligations, when it suits them. Traditionally, the principal issue around this authority has not been its existence, but rather it application. Since 1945 the jurisprudence around national security exceptionalism and its manifestation (as well as the processes under which it may be lawfully asserted) have varied widely by action of courts (determine the factors that might be balanced and the value to be assigned to each, as well as to develop an overall set of expectations about its use) (see eg here, here, here, and here). 

It is here that the battle over the assertion of the national security exception takes an interesting turn:

TikTok, ByteDance, and a group of TikTok creators challenged the ban in the District of Columbia Circuit Court of Appeals on May 7, 2024. They argue that the law violates TikTok’s and its users’ First Amendment rights by shuttering a unique speech platform. TikTok also argues that by unfairly singling out a single platform for adverse treatment, the law violates its Fifth Amendment equal protection rights. The government has defended its effort to ban TikTok by citing concerns that the Chinese government might direct ByteDance, which is headquartered in China, to covertly manipulate the content that U.S. users view on TikTok or might demand access to Americans’ sensitive data collected by the app. (David Leonhardt, 'Good morning. Today, we’re covering the TikTok arguments at the Supreme Court this morning,' New Yorok Times 10 January 2025).

The appellate court in that suit, TikTok Inc., et al. v. Garland, eventually upheld the Statute (No. 24-1113 (D.C. Cir. 2024)). Thereafter, a collection of users, producers of content and those who make money from that platform sought a temporary injunction before the U.S. Supreme Court. Briefs were filed in late December 2024 and a hearing before the Justice occurred in early January 2025 (as a sideshow of sorts the President elect sought some sort of cool down period until he and his incoming administration could focus on this or perhaps use it strategically in light of policy going forward, making for a motley collection of the enemy of my enemy; President-elect Trump's Amicus may be accessed HERE and follows below). 

As the ACLU and its partners explain in their amicus briefs, under the First Amendment, we all have the right to speak freely and to receive information from others. To ban an entire communications platform used by tens of millions of Americans, the government must meet an extraordinarily high bar: It must show that the ban is the only way to prevent serious, imminent harm to national security, and that the ban limits no more speech than necessary to accomplish that purpose. But the government has not put forward actual evidence of impending harm—only speculation about what might occur—nor has it shown that banning TikTok is narrowly tailored to address its concerns. The government’s invocation of “national security” does not lessen its burden under the First Amendment. To the contrary, history has shown that courts must be vigilant in the face of broad claims that national security requires trampling on Americans constitutional rights. (ACLU Explainer and Virtual Press Release, TikTok Inc., et al. v. Garland (Amicus)

Much of this is well worn territory. On the one hand there are the traditionalists, like the ACLU, to seeks to preserve and apply a host of cases and the balancing and valuation sensibilities of an era  most of the survivors of which are now deeply into their Social Security years. On the others there are the national security progressives who, having witnessed the dissipation of the old order are seeking a broader and contextually relevant application of those standards, or the adoption of others, that are relevant to this moment and this stage in the historical development of the United States. As a matter of jurisprudence, either side makes plausible claims--plausible as a matter of jurisprudence, judged by American standards at least. The decision, then, will have to be based on the way that the justices choose to apply, weigh, and balance criteria today.

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The more interesting element is also as old as the revolutionary movements of the 1960s, again, the survivors of which are now close be becoming purely historical figures--and thus transformed into an idea detached from whatever body has now given way to the inevitability of time--can be trotted out and recast to suit their users.  This of course is an ironic twist on the object of the litigation--a platform that excel (among other things)--in doing just that. And that is the foregrounding of speech in a case that is about corporate ownership.  Or from their perspective, avoiding the fatal fallacy of viewing the case as one touching on issues of property and ownership when in fact, the primary element of the case is grounded in the divinely ordained power of the American (and other) public(s) to produce and consume speech, speech acts, and their virtual reproduction, etc. The irony here, of course, is that is precisely what conservatives were able to argue successfully in another corporate speech case--Citizens United (2010)--a case that focused on the right of people in the US to consume speech wherever it is produced, even by organs grounded in the property rights of shareholders but detached from their direct operational control (in public companies sometimes at least) the ACLU does not like (to put it mildly) but which it might use to advantage here (and in the Pro-Hamas protest issues cases, but perhaps to disadvantage elsewhere). In a sense, the arguments can be understood as a repurposing of the arguments the ACLU opposed in 2010 but now finds useful with respect to  platforms whose producers and consumers find appealing. Curiously the amicus of the President elect ignores Citizens United, and the ACLU brief (p. 24)  cites it in passing. The ACLU amicus may be accessed here (38 pages). The main briefs suggest the disconnect between the changing situation on the ground and the way that people within the High Court's jurisprudential bubble continue to operate--in the manner of charming debates in Versailles in early 1789. TikTok (brief here and below)) makes a sort of "too big to fail" variant argument and the more hilarious argument that it is enough that they tried to meet the State's objection. They do use Citizens United both for its  brushing up against speech but also for the standard that ought to be applied to corporations--yet it remains sadly unsatisfying as corporate law (pp. 22 et seq.). The State (Brief below), oddly, appears both to overplay its hand (no 1st amendment issue here) or underplay it (the careful weighing of national security to protect the people that are its object). Moreover, no one seems to be interested in the obvious--to save the platform while detaching it from its unhappy ownership connection. But that takes creativity--and cash. Though there was plenty once upon a time when the State was bailing out all sorts of other forms when it suited them. 

What makes these briefs even more interesting is that they continue to evidence the growing fracture of jurisprudence within complex environments driven by techno-bureaucracies seeking to advance policy. A quick example--in the jurisprudence of business and human rights many actors, including those defending the banality of TikTok's ownership and control structures, have been champions of a transformative world view in which corporations are viewed as instruments either of capital (amorphously understood, perhaps  like the Nibelung in Wagner's Ring). For them, and the law and policy they have championed, primarily as international law and norms and most successfully in the more mature techno-bureaucratic administrative management system in Europe, the technical applicaiton of the law and principles of legal personality, asset partition, and the like ought to be swept away in favor of a more flexible connections test grounded in impact--or rather the potential risk of impact (with a very low threshold (in  organs like the Ethics Council of the Norwegian Pension Fund Global have been intellectual leaders). And yet none of that is in evidence here. Instead, in their balancing, petitioners adhere to what in other spaces they deride as reactionary positions of demanding solid proof of actual effect and rejecting the notion that potential adverse impact to national security has any place in the analysis. To those ends, the risk protection analysis shifts from ownership and exploitation structures (the essence of the national security waiver) to the potential effect on users as a function of something that comes close to a First Amendment uber allles standard (except of course with respect to those speech acts that they might fins offensive or potential dangerous--a contradiction reserved for another time).  The point isn't that petitioners are wrong, one speaks here about the discovery and application of standards and judgments on a specific case (at its narrowest), and their arguments are plausible in that context--it is that (ironically) from a techno-bureaucratic perspective, short term strategic gain may adversely impact all sorts of other policy goals with respect to which these actors have an interes, and these sorts of contradictions cannot but eventually explode in the face of the social collectives on which they are imposed. 

However the case is decided, and my sense is that the law will be upheld, given the trajectories of the reconstitution of global space into fractured imperial operational pathways, and the growing authority of discretionary based systems of techno-bureaucratic management that is in a far more advanced stage in Europe and China than in the US. That done, the parties can all proceed to the political question that has been generously lost in the babble of jurisprudential scholasticism--how does one preserve a useful platform while eliminating the connection between it and foreign forces now deemed a threat. It is that that point that one will witness either Götzen or Götter dämmerung.

Now this is how to philosophize with a hammer!

Some Form of the National Security State Comes to Europe?: "Does the Commission Cross the Rubicon? Legalising ‘Pushbacks’ on the Basis of Article 72 TFEU"

 

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Perhaps it was inevitable, though twenty years ago  it might have seemed incredible.   States have always reserved to themselves the right to take measures to protect their national security.  By the 1990s, that national security exception, in many places, including the E.U. appeared to be shrinking to the point where it might have been thought to become vestigial.  Courts in OECD states and in political collectives like the EU, continued a process of revaluing the value of national security. That was possible given the normative tenor of the times--one that saw as almost inevitable the closer integration of a global community under the aegis of shared economic and human rights values. This global convergence suggested  national security as both an anomaly and as an instrument of reactionary forces. Certainly it might still be possible to successfully interpose national security as an exception, but national security  would not be valued as highly as other competing policies--integration, convergence, international law and comity, and the universalizing presumptions of human rights and economic regimes. That certainly appeared to be the case of the evolving jurisprudence of national security within the EU and in the European Court of Human Rights.

All of the started to change in noticeable ways  after the financial crisis of the first decade of the 21st century.  At first it was barely noticed in the core of "convergence land."  But it became more and more important  among Marxist-Leninist States, post-colonial and developing states, and eventually the United States, though in each case for sometimes vastly different reasons and to support vastly different projects. National security could come to mean the protection of social stability, it could be aligned with the needs of development, it could be asserted to protect cultural and social norms against homogenization (even if that homogenization was code for international normative projects sourced in the New York and Geneva international establishments). And it could mean the preservation of national capacity to defend itself against attack.  From after the start of the Russo-Ukrainian War in 2014, and with it the evolution of warfare as practiced (rather than as theory), the understanding of all of these concepts changed and expanded to suit the realities emerging as a function of technology and the instrumentalization of virtually every aspect of social relations as a means of offensively projecting power into a foreign state. 

Every region experienced this change differently.  For the U.S. it focused on tech and multi-use of products that could be used against U.S. interests; for China it centered on the protection of information and the integrity of its political-economic order against external threat; for much of the post-colonial world it centered on a variety of threats, internal and external. In each of these cases a more robust assertion of national security to justify counter measures and national security infused policy could run up against the older jurisprudence and expectation of the use and limits of national security.

In Europe, the tender underbelly of national security might be migration (which presents itself differently than in the US).  The emerging issues were quite effectively considered in a a short but quite interesting essay, Daniel Thym, 'Does the Commission Cross the Rubicon? Legalising ‘Pushbacks’ on the Basis of Article 72 TFEU,' published 10 January 2025 in EU Immigration and Asylum Law and Policy Droit et Politique de l'Immigration et de l'Asile de l'UE (with thanks to my friend and colleague Francisco Javier Zamora Cabot,  Emeritus Professor of Private International Law, Universitat Jaume I for the reference). The article is reproduced below and is well worth a read, especially for its excellent job of sketching out the European context of what appears more clearly as a global trend. What makes the European context especially interesting is the way that these changes affect a substantially large ecology of regulation, constitutional and quasi-constitutional rules and norms, and the remedial mechanisms (including the standards) used to define and protect rights that may be adversely affected by assertions of national security to justify deviations from general rules or expectations. Thym concludes, quite correctly, 

Even if the ECtHR’s Grand Chamber found pushbacks to be legal, Member States would not be free. Governments would have to convince the Court of Justice that the strict requirements of Article 72 TFEU are being complied with and that the interference with the right to asylum fulfils the requirements set out in Article 52(1) of the Charter. Exceptions must be ‘provided for by law’, rather than being simple administrative practices. This double assessment leaves judges multiple options to limit state discretion. Exceptions must be ‘provided for by law’, rather than being simple administrative practices, to comply with Article 52(1) of the Charter. The CJEU might also conclude, like in the judgment on Lithuania, that border procedures are enough to respond to security concerns or that the derogations in the future Crisis and Force Majeure Regulation are sufficient.

The final analysis might boil down to a proportionality test and the necessity of drastic state measures, both under Article 72 TFEU and Article 52(1) of the Charter. Judges may instruct Member States to exempt specific categories of persons, such as minors or vulnerable groups, mirroring existing exceptions in Finnish, Lithuanian, and Polish legislation. They might also require a basic triaging identifying people with evident protection needs who are not being pushed back. They would also have to ascertain the bearing of the nebulous category of the ‘essence’ of fundamental rights (see also here, point 137 without giving any reasons). The concept of ‘essence’ was borrowed from German constitutional law where, tellingly, it does not have much practical bearing besides the proportionality test.

The real issue may be that, even if the standards remain unaffected, the way they are interpreted and applied, and the way in which values are considered and balanced may change significantly. That remains to be seen, but certainly whatever happens, the old expectations and applications may now be ripe for re-interpretation.