Kenneth A. Bamberger & Andrew T. Guzman

(Also published in the San Francisco Chronicle, Feb. 25, 2009.)

The Obama administration’s response to the problem of unsafe imports—from tainted foreign-made toys to adulterated drugs—must reflect the realities of globalization.

U.S. regulators possess a full toolbox to police domestic production. When laws mandating product safety aren’t enough, the production process itself is regulated – effectively placing a regulator on the each factory floor. For foreign products, however, American regulation of the production process is often impossible.

The dominant regulatory response to date has been more government inspections, ignoring the fact that there are simply too many imports for inspections to work. There are eight inspectors in the FDA’s new Beijing office, while Chinese exports to the U.S. total $321 billion. Even doubling or tripling the number of inspectors would clearly not be enough.

There is another option: giving U.S. importers incentives to monitor compliance with domestic consumer protection laws. Where imports are likely to pose a threat to consumers, higher legal penalties should be imposed against U.S. companies trading in these products, making these firms liable for the true costs of their foreign activity. Drug companies using foreign supply chains, for example, would face increased administrative penalties if harmful products enter the U.S. Companies would respond by taking safety costs into account when deciding where and how to conduct their business—extending the force of American consumer protection far beyond the formal reach of U.S. law. Companies would compete for the cheapest way to produce safe goods, rather than competing to produce the cheapest goods.

(An article detailing this proposal can be found in the California Law Review (December 2oo8).

Kenneth Bamberger is Assistant Professor of Law and Andrew Guzman is Professor of Law and Director of Graudate Programs.

Olivier Roy

(This essay was also posted with the San Francisco Chronicle, February 23, 2009.)

The Obama administration must not try to speak to something called the “Muslim world.” It does not exist!

To offer a dialogue with the Muslim world is precisely to play on the narrative of Osama bin Laden: the world is divided into two parts, the “West” and the “Muslims.” This narrative allows bin Laden to cast himself as the best protector of such a virtual Muslim world.

From Gaza to India, most of the conflicts where Muslims are involved have nothing to do with Islam. Hamas represents Palestinian nationalism under a thin Islamic garb. In Iraq, factions are competing over land and power, not Islamic law. The Bombay attacks stemmed from the conflict between India and Pakistan, fueled by the Pakistani army.

Moreover, Muslims in the West want to be considered first as Western citizens, not as the bridge-head of a foreign influence. Speaking of a Muslim world means pointing to “our” Muslims as foreigners. By addressing the “Muslim world,” do we mean to suggest that the West is defined by Christianity or by secularism?

President Obama cannot speak as the head of the Christian world. But to present the rule of law and human rights as typically Western secular values gives credence to authoritarian Arab leaders and Muslim conservative clerics, who are happy to present these values as “foreign.”

If President Obama tries to open an official dialogue with them, he will effectively define these leaders as representative of the “Muslim world,” thus pre-empting any change. Our policy must recognize the diversity of Islamic people, not assuming a monolithic world.

Olivier Roy is Visiting Professor of Political Science aand author of “The Politics of Chaos in the Middle East,”(Columbia University Press, 2008).

Kate Jastram

It’s time to rethink our detention policies for asylum seekers. Not many people are aware that the United States routinely imprisons terrified (note: not terrorist) people who have fled to our shores seeking asylum from persecution and torture. The new Secretary of Homeland Security needs to focus on less expensive and more humane alternatives to detention, to improve conditions for those who must be detained, and above all, to give her Special Adviser for Refugees enough clout to ensure that the agency’s national security mission does not completely overwhelm the humanitarian aspect of its responsibilities.

Most asylum seekers have no criminal record and pose no threat to the public. An asylum application is a civil, not a criminal, matter, heard by an administrative judge, with no right to counsel at public expense. Yet DHS keeps asylum seekers in federal immigration detention facilities, in for-profit prisons, and in actual county jails. Conditions are uniformly grim, complete with guards, guns, and prison garb. The common denominator in our asylum detention policy is a penal model that is wildly expensive, and completely unsuited either to our needs for security or the asylum seekers’ needs for a prompt and fair hearing of their claim. Continue reading…

Bruce Ackerman and Oona Hathaway

(originally posted on The Daily Beast, Dec. 31, 2008)

The Bush administration’s infatuation with presidential power has finally pushed the country over a constitutional precipice. As of New Year’s Day, ongoing combat in Iraq is illegal under US law.

In authorizing an invasion in 2002, Congress did not give President Bush a blank check. It explicitly limited the use of force to two purposes: to “defend the national security of the US from the threat posed by Iraq” and “enforce all relevant UN Security Council resolutions.”

Five years after the fall of Saddam Hussein, the government of Iraq no longer poses a threat. Our continuing intervention has been based on the second clause of Congress’ grant of war-making power. Coalition troops have been acting under a series of Security Council resolutions authorizing the continuing occupation of Iraq. But this year, Bush allowed the UN mandate to expire on December 31 without requesting a renewal. At precisely one second after midnight, Congress’ authorization of the war expired along with this mandate. Continue reading…

Laurel Fletcher and Eric Stover

As part of his pledge to close Guantánamo, President-elect Obama has committed to reviewing the individual files of the remaining prisoners to determine whether to release them or to charge them with criminal conduct. This process will take months to complete. In the meantime, the new President could take immediate steps that would reverse some of the most troubling aspects of Bush Administration detention policies and send a swift and reassuring message that President Obama is serious about regaining America’s moral stature in the world.

First, President Obama should close immediately all secret prisons and transfer remaining prisoners in U.S. custody to the brig at Fort Leavenworth. The establishment and maintenance of “black site” facilities by the Bush Administration is a national embarrassment. Despite the shroud of secrecy, what has become known about the abuse and, in some cases, torture of detainees in these camps violates international and domestic law. Closing these facilities will signal that the United States will no longer “disappear” terrorism suspects—a familiar practice of authoritarian dictators. Continue reading…