Inder Comar

(This post was originally published on TriplePundit.com on September 12, 2011)

Law has the power to promote common values that help change societies for the better. At the international level, treaties are the legal mechanism by which a shared vision is enacted by and between different countries.

It is tempting to cynically dismiss international agreements, but they can be surprisingly effective. Treaties like the United Nations Charter, the International Bill of Rights, the Convention Against Torture and even the Kyoto Protocol are all documents that shaped the current international order.

As global population tips towards seven billion people and with growing concern over access to clean water, energy resources and the effects of climate change, the moment is increasingly ripe for sustainability to become an issue of international importance. A binding “Sustainability Treaty” could help distill a shared set of values that advocates all over the world could use to frame conversations related to sustainability.

Here are some issues that a Sustainability Treaty could tackle:

Resource preservation and trade:  International trade is already globally managed through the General Agreement on Tariffs and Trade and the World Trade Organization (in addition to regional trade blocks like the European Union and NAFTA). A Sustainability Treaty can take these trade agreements to the next level by mandating cooperation related to the use and trade of necessary resources likely to cause conflict in the coming century. Concerns about peak water and peak oil are better addressed through trade agreements that incentivize water- or oil-rich countries to trade these goods at reasonable prices in exchange for (say) favorable trading conditions for other goods, direct investment, or technology transfers.

Sustainable development:  It’s wrongheaded for Americans to see rising BRIC nations only as competitors or threats to the current global order — on the contrary, the spread of affluence and basic necessities to places like India and China creates an unprecedented opportunity for mutual growth and technological advancement.  A Sustainability Treaty can change the conversation about sustainability by correctly pushing for needed economic and technological reforms that will lay the foundation for the affluence of the 21st century.  For example, countries could agree to global gas mileage standards on new cars, joint development on new forms of energy technologies or re-thinking agricultural production.

Pollution and waste:  The 1987 Montreal Protocol has been hailed as an example of international cooperation related to human-caused ecological problems (specifically the depletion of the ozone layer). A Sustainability Treaty can build on that success by tackling problems associated with other sources of toxic pollution and waste, particularly plastics and e-waste.  More ambitiously, a Sustainability Treaty could even address the issue of nuclear waste and put together a comprehensive framework for a nuclear clean-up and even phase-out of outdated and waste-producing nuclear technology.

Climate change:  The Kyoto Protocol was the international community’s first effort to tackle climate change, and while it placed climate issues on the radar of governments and international organizations, as a practical matter carbon emissions continue to rise. Perhaps the flaw in current climate strategy is tackling the issue alone when in reality climate change is tied to a larger conversation about the creation of sustainable civilizations.  Hold-outs to Kyoto (specifically the United States) might find it more politically feasible to talk about climate change within the context of trade or development opportunities as well.

What are some other issues that might be addressed in a Sustainability Treaty?

(This post is cross-posted with COMAR LAW)

The right to participate in the public political process is the essence of democracy.

It is what gives people control over the direction of their society.  It makes people citizens instead of subjects.

In the Anglo-American tradition, the right to participate has a long history.

Clause 61 of Magna Carta gave the barons the right to petition the king for redress for any breach of that Charter.

The English Bill of Rights of 1689 similarly provided, “[I]t is the right of the subjects to petition the king, and all commitments and prosecutions for such petitioning are illegal.”

In the Declaration of Independence, the Framers highlighted the infringement of their right to participate as a reason for the Revolution:  ”In every stage of these Oppressions We have Petitioned for Redress in the most humble terms: Our repeated Petitions have been answered only by repeated injury.  A Prince, whose character is thus marked by every act which may define a Tyrant, is unfit to be the ruler of a free people.”

In the United States, the right to participate finds life in the First Amendment.

The First Amendment protects the rights of (i) free speech, (ii) assembly, and (iii) the right to petition.

And in California, these rights are afforded a separate guarantee by the California Constitution, which protects the rights of Californians to “freely speak . . . on all subjects,” “petition government for redress of grievances, and assemble freely to consult for the common good.”

A significant threat to public participation comes about through so-called “SLAPP” suits — “SLAPP” standing for “strategic lawsuit against public participation.”

For example:  someone who publishes an article in a newspaper and then is sued over that article confronts a SLAPP suit, as expressing an opinion in public — free speech — is a constitutionally protected right.

Someone who mounts a vigorous defense in a court proceeding and then is sued over that conduct confronts a SLAPP suit, as the petitioning of a court — the right of redress — is a constitutionally protected right.

SLAPP suits are concerning for a variety of reasons, but one of the most troubling aspects is that it is usually the stronger and more financially capable party that brings the SLAPP suit.  The defendant facing a SLAPP suit may be compelled to settle to make the headache go away and avoid the burden of trial.

Fortunately, California law provides an important mechanism for dealing with SLAPP suits:  the “anti-SLAPP” law, codified at Cal. Civ. Proc. Code § 425.16.

The anti-SLAPP law permits a defendant to strike a lawsuit at the very beginning of the lawsuit — within 60 days of service of the complaint — by forcing a plaintiff to show to the court that the lawsuit is meritorious.

These are classic SLAPP fact patterns:

• In 1996, after several rounds of appeals, the Church of Scientology sought to set aside a $2.5 million judgment that had been awarded to Lawrence Wollersheim, a former member of the Church who was awarded general and punitive damages for intentional infliction of emotional distress.  In response to the Church’s new lawsuit, Wollersheim filed an anti-SLAPP motion, arguing that the Church was seeking to punish him because of his right to petition the courts for redress.  The Court of Appeals for the Second District agreed, writing that the Church had employed “every means, regardless of merit, to frustrate or undermine Wollersheim’s petition activity. When a party to a lawsuit engages in a course of oppressive litigation conduct designed to discourage the opponents’ right to utilize the courts to seek legal redress, the trial court may properly apply [the anti-SLAPP statute].”  The court then struck the Church’s lawsuit.  Church of Scientology v. Wollersheim, 42 Cal.App.4th 628 (1996).

• Jay Leno and NBC were sued in 2006 for defamation and intentional infliction of emotional distress by an egg donor who was the subject of joke by Leno on his “Headlines” routine.  In response, Leno and NBC filed an anti-SLAPP motion, arguing that no reasonable person would have taken the joke to be factual or defamatory.  The court agreed and struck the plaintiff’s lawsuit.  Drake v. Leno, 34 Med.L.Rptr. 2510 (2006).

If you are a defendant facing a lawsuit based on activity that is protected by the California or federal Constitutions — in particular, speaking freely or accessing the courts — you may be entitled to end the lawsuit under the anti-SLAPP law.

(This post was originally published on TriplePundit.com on September 7, 2011).

In the US we’re still more than a year away from the next federal election, but campaign news is already making headlines.  It’s worth asking:  what are some things a Sustainable Party might advocate?

Here are a few ideas:

Sustainable health.  The conversation about nation-wide health care is an excellent start, but people need to ask fundamental questions about what it means to be healthy.  Scientists and doctors already know that (1) nutritious foods, (2) a robust social network, (3) daily exercise and (4) rest and holiday are the best ways to manage stress and stay healthy.  Yet current health care models focus on emergency and end-of-life care, when care is at its most expensive and least likely to qualitatively improve life over the long term.

A Sustainable Party should fight for a health care system that maximizes preventive and sustainable health. Things such as (1) a better food supply, (2) better advocacy and support for the mentally ill, (3) more opportunities to be outdoors and exercise, and (4) more time off from work would dramatically increase quality of life and reduce disease, all while saving costs.

Sustainable infrastructure. The economies of the future will not be coal or oil-based. Carbon emission models are simply too scary — and oil production too vulnerable — to suggest otherwise. Other countries are already way on top of this:  Germany, for example, plans on being 50 percent reliant on wind, solar and hydroelectric power (and totally nuclear free) in just eleven short years.

A Sustainable Party should advocate for the immediate transition to sustainable energy sources in 10 to 20 years — not only as a way of creating desperately needed new jobs and technologies, but also as a way of staving off the worst effects of climate change. There is just no excuse for the US to sit around and let other countries develop the sustainable energy sources of the future.

Sustainable development.  The growth model of the last 100 years — leave home at 18, find a spouse, buy a new home, rinse and repeat — has isolated and damaged families, communities, and individuals.  A Sustainable Party should push for policies that encourage people to stay in one place and create thriving social ecosystems.

The options here are truly limitless.  Governments can offer tax credits to encourage people to stay at the same address, grants to entrepreneurs who create local jobs, and direct investment in community centers and parks.  And why not experiment with new forms of zoning so that people can live, eat and work in the same place, or with other people?

Sustainable labor.  People fought and died for the eight-hour work day, laws against child labor and a weekend away from the office.  At a time of unprecedented material abundance, the economy is nonetheless regressing to an era where labor rules were nonexistent or simply ignored.

A Sustainable Party needs to fight for an economy that promotes a lifestyle where people don’t have to kill themselves to enjoy a basic standard of living.  I know too many well-educated twenty and thirty year olds who are stuck behind a desk for 10 hours a day (at least!).  Society should reward people by giving them time-off to enjoy friends and family — or just to take a break.

What do you think?  What should a Sustainable Party advocate?