Jack Welch: Legal Constructivist or Bully?

I am not a legal theorist (Olga?!), and not particularly enthusiastic about the comments this post might illicit, but I felt compelled to write. Last week Jack Welch remarked at a SHRM event that female professionals had the burden of making a choice: to focus on acquiring a leadership position within their company and field, or, to focus on having and raising children.

I didn’t pay much attention to the news item at the time of its release – then, it wasn't blawgable. In the interim period, the online community has been both critical and supportive of Welch (ie, ABA, Ms. JD, WSJ). The reason the news story originally sailed passed my attention is ironically the reason I write now, because I feel Welch merely remarked on the roadmap every female professional realizes exists.

I will not discuss whether this roadmap is “right,” or “fair,” or a choice a man is under the same obligation to make. But from a legal constructivist position, Welch’s comments make sense. Legal constructivism studies how law embodies norms. It makes sense, that a woman competing in any profession built by men, and for decades professionally populated by men, would have to compete by the rules those men created. And whether purposefully or subconsciously, those men would create rules that reinforced the manner in which they performed, the means by which their performance was judged, and by values their male community supported. So where a male professional had sacrificed his personal interests for the sake of his company’s interests (or alternatively, did not have to make the sacrifice because a partner supported him), it is logical that a promotion and company leadership structure would embody the same rationale, priority, and reward.


As a closing matter, Welch’s comments also make intuitive sense. If I join an athletic team, and leave work early each evening to practice, travel periodically for games, and have my mental focus divided among competing concerns, no one – not even myself – would expect a professional leadership position at work. And this is not to denigrate raising children to the level of playing baseball, but the issues of distraction and divided focus from company concerns remain the same. We grew up as kids knowing we couldn’t have it all, right? That our choices and actions had consequences? (And this is a personal and truthful reflection): why, then, does it come as such a shock when Jack Welch says it out loud?

(Photo courtesy of Re:Focus).

View full post and comment string ...

Higher Academic Honors

As my time on this blog is coming to its inevitable and very depressing end, I try to keep my eye on the Big Picture. Yesterday, legal giant Richard Posner likewise advocated a farther-reaching, cross-disciplinary approach to law and society here. In his article, Posner laments the “academification”/specialization of legal research and writing, and specifically argues that the lack of academic focus on macro-economic issues by legal scholars is “inimical to research oriented to practical solutions to current legal [and economic] problems.” Posner follows with specific legal questions (e.g.: should bankruptcy judges rewrite mortgages?).

Posner’s specific legal questions get at the following themes: should rules of contract/bankruptcy law bend in times of economic crisis, and if so, should they bend through a legislative or a judicial process? Are there constitutional limitations to how far they can bend? From a policy perspective, is it wise for rules to bend/ be subject to bending during otherwise unstable times? Posner argues that “the impact of the [ ] resolution [of these questions] on the macroeconomy” would be extremely valuable, if not essential, to lasting economic (and legal) health.

To Posner’s points I would add that consideration of these questions by legal scholars could also shed light on some traditional debates about the very nature of the legal process. Anchoring Posner’s query of whether judges ought to have the power to rewrite mortgages (as opposed to the legislature passing a bill affecting certain mortgages) in a larger, traditional legal and political debate regarding the role of judges in society could breathe new life into the latter (bigger) context, with important practical consequences for how we select Supreme Court justices, select and rate judges, manage the legislative process, and interpret or change the U.S. Constitution. Ideas beget innovation. Because reinvigorating some older debates like the one about the role and power of the U.S. Supreme Court, or the one about the respective responsibilities of judges versus legislators, or the one about the propriety and sufficiency of methods for amending the U.S. Constitution, could indeed usher in meaningful legal and political innovations that could be substantially better equipped to grapple with the complex dynamic of the contemporary world than are our current (and unchallenged) traditional notions about such topics. For these reasons, I'm with Posner: the key to lasting legal and political health is in the minds and papers of academic legal researchers and writers, who should aspire towards bigger, higher, more complex and cross-disciplinary planes.

Rules of Revolution

The thesis is as follows: from the standpoint of international law, national sovereignty must be viewed as a flexible concept when self-determination by a people of a nation is in question in times of outbreaks of internal violence directly tied to the very question of people’s self-determination – in other words – in times of revolution. That is, the international community has a right to breach the otherwise sovereign borders of a state (peacekeeping forces, etc) in order to minimize human violence, and to prevent violent oppression of the revolting people by the government’s armed forces.

The reasoning is as follows: government derives its legitimacy from a choice made by the people to have that government. At times, political circumstances turn in such a way that a substantial number of people are dissatisfied with their government, AND are unable to change that government through peaceful, lawful means (e.g.: election, even one decided by a Supreme Court, which is still an institution of law). During such times, people turn to self-help and try to change their form of government through revolution. Unfortunately, too frequently the government has control over the armed forces and is able to forcefully suppress change and political dissent. When the government has to use force to secure people’s compliance with it, the government divests itself of its fundamental legitimacy. A nation without a government is still a sovereign nation, and the international community has two choices at that point: do nothing and let the revolution and bloodshed take its natural course, or intervene (again, e.g.: peacekeeping forces) and mediate the set-up of a replacement government while also providing the people with protection against violence possibly perpetrated on the people by their old regime.

Today, there are many NGOs that work in foreign countries and assist them in setting up their legal and political systems. The international community ought to recognize the tremendous importance of this type of work, and, in times when a country breaks out into violence, enable armed peacekeeping envoys to penetrate an evolving nation’s sovereignty to ensure the protection of the first and foremost human right: the right to life – even if one is a revolutionary otherwise willing to sacrifice it. From a moral standpoint, we should not stand by idly and watch other people sacrificing their lives in the name of freedom, and while the peacekeeping/envoy option may not be a great one (hey, this is my first crack at this!), the United Nations should consider other formal approaches to intervening in the affairs of sister states whose people seek a more perfect expression of freedom.

This thought-process was triggered by the current crisis in Iran, so let’s consider how this might play out. We have unrest by a significant number of the people, a law-less election, violent clamping down of the protesters by the government controlling the armed forces, loss of life, and, a key factor – lack of legal recourse and inability of the people to resolve the electoral dispute by application of law. The UN is currently being petitioned to send “envoys” to Iran to mediate the crisis; however, there is seldom any discussion of use of UN military force to stand up to the government’s en masse use of the military against its own citizenry.

There is a big part of me that thinks that the current crisis in Iran would satisfy the threshold criteria, as set forth above, for international use of force aimed at stabilizing the situation – a coalition of envoys, that is, who will oversee a re-election, and perhaps oversee a referendum on certain parts of the Iranian Constitution, such as the part granting unchecked power to one Supreme Leader. Yet, there is also a big part of me that feels such an approach too intrusive under the circumstances, and possibly unwelcome and counterproductive. In fact, I could imagine an argument that the Supreme Leader’s call of the Iranian election IS application of legal process – because the Supreme Leader is empowered by the Iranian Constitution to have the power to make that call, which means that the law prevailed and the protesters ought to go home. The problem, of course, is that the protesters are not going home, and those who are – are quite possibly doing so out of fear of death rather than a truly voluntary choice to consent to the government’s ruling.

So, at the end of the day, I am not ultimately willing to make this call. However, I do think that the United Nations ought to consider very strongly various formalized collective responses to brewing revolutions, including use of military peacekeeping forces, for the purpose of preserving and protecting human life. The UN’s approach right now is ad hoc and there is little thought (that I’m aware of) given to formalizing a set of rules and criteria that would trigger a right to intervene in the affairs of sovereign nations the governments of which use violence to suppress the people’s dissent, which governments, therefore, become illegitimate. We have legal rules for war – and the creation of those rules was motivated by a self-evident need to protect human life and other rights in times of great crisis; we should have rules for revolution – for the very same reasons.

View full post and comment string ...

Gonna change my way of thinking.

One commentator (thanks for the tip, Stef!) recently suggested that the Iranian Constitution’s vesting of ultimate authority in the Supreme Leader is analogous to the Divine Right of Kings. One respondent (number 3) to that commentator has cautioned that “the Iranian Constitution… has rather deep intrusions of democratic principles[; it] repeatedly references democratic ideals in interesting and somewhat surprising ways,” citing, for example, the importance attributed by the Constitution to the public will, as it is expressed by public elections. This basic tenet of democracy -- self-determination by popular electoral will -- is indeed decidedly sophisticated from the viewpoint of institutional political maturity. However, I would argue that the very existence of a Supreme Leader whose final judgment is unquestionable because it is explicitly tied to the pronouncements of a higher-than-human authority reduces the “deep intrusions of democracy” in the Iranian Constitution to an aspirational ideal at best, and at worst - to mere lip service.

The recent electoral crisis in Iran is an illustration: despite extensive and strenuous protest by the very people who are supposedly empowered to self-determine their political fate, so far it is the word of the Supreme Leader that is prevailing. Some have pointed out that the recent unrest in Iran is likely to spell a serious change for the Iranian regime. Indeed, determination by the authority of the people, by its very nature, is incompatible with determination by the authority of a being other than the people and it is precisely this basic incompatibility that is behind the intuition concerning the impending regime change in Iran.

However, it is unclear exactly what kinds of (presumably democratic) institutions will replace Iran ’s current irreconcilable marriage between democratic choice and divine power, or, perhaps more importantly, how that change may be peacefully implemented. It is ironic enough that the people’s revolution of 1979 replaced an actual king with a leader possessing a divine right of kings; it would be more ironic and possibly quite tragic if another (armed) revolution were necessary to purge the remnants of divinity (that currently controls the armed forces) from the political framework to make room for rule of truly democratic (read: non-divine, people-controlled, in a word - secular) law, even if that law makes a respectful nod to religion (as it would have to in Iran). Allahu Akbar because the people's votes count.

Ultimately, what this discussion aims to stimulate and preface is a rethinking of certain aspects of international law, especially those aspects pertaining to nations’ rights to interfere in the affairs of other nations (see also previous post re: need for a flexible definition of national sovereignty during times of internal national violence.) Certain philosophical considerations do indeed justify, and in fact demand international attention to (and I would argue, at times, intense international involvement in) major transformative political events within any particular country, to facilitate the peaceful and lawful nature of these transformations, minimizing violence and loss of human life that too frequently accompanies them. International law can and should be used to challenge the necessity for coincidence of major political transformations with civilian bloodshed.

The Big Picture

Only as high as I reach can I grow, only as far as I seek can I go, only as deep as I look can I see, only as much as I dream can I be. – Karen Ravn.

On that note, I’m starting with the BIG picture.

The law is a process which, like any other process, is in constant motion. Driving the process of law are actors (read: lawyers) who are constantly engaged in defining the relevant legal rules. At its best, the law transforms the naturally chaotic and selfish human beings into socially conscientious benefactors, because lawyers promote those rules governing human behavior which, to borrow the language of game theory, lead to a maximum-sum game: if everyone follows those particular rules, everyone will maximize their own, and everyone else’s benefits.

The cutting edge of economics today is preoccupied with applying game theory principles to public policy matters. One day, perhaps, our economic modeling ability and technology will grow capable of calculating the number reflecting the outcome-sum of any game played by 6 billion human beings. That day, we will have mathematical proof of which rules governing human behavior are, in fact, better for humanity than all other rules. But until that day comes, it is up to the lawyers to tap into our collective intuition and social consciousness and aspire to create and advocate the kinds of rules which, if followed, lead to a universal and perpetual maximum-sum game. No matter what we as lawyers do, the maximum-sum game paradigm must always remain in our minds’ not-so-distant background. This is as true of the work that we do as it is of the lives that we lead.

With this as background, the specific legal question for this post is as follows: in terms of international law, must (or should) Western nations let the sovereign people of Iran sacrifice their lives in the name of freedom and self-determination of its sovereign future generations, or, is it “good” for the sovereignty principle to be, as a matter of international law, inherently flexible and subject to international interference, considering that once self-determination is obtained by the Iranian people, it is likely that, like any other free people, they will demand nothing short of absolute respect for their sovereignty? (I claim no more to have the right answer to this question than I claim to have just stated it clearly, which, clearly, I have not.) Nevertheless, my view is that, as a matter of international law, national sovereignty must yield when self-determination by a people of a nation is in question, at least in times of outbreaks of internal violence directly tied to the very question of people’s self-determination. I plan to address some of the reasons supporting this view in my next post, which, I swear, will be, like, totally way more clear.