The National Lawyer’s Guild (NLG) has published a helpful guide to the happy-go-lucky boycott, divestment and sanction brigade which purports to help them avoid BDS activity that might land someone in court.
Like many “alternative” unions (NLG is basically a left-leaning “answer” to the more established and establishment American Bar Association), the Lawyer’s Guild has gravitated to international affairs over the years. And like the rapidly-vanishing US Green Party, they have chosen to advocate (literally, in their case) for the cause of divestment from Israel.
I’ve only encountered members of The Guild up close on one occasion, when they failed to sue a divestment motion onto the a city-wide election ballot in Somerville, MA. Otherwise, they are simply the example I use to illustrate marginal organizations that have taken an official BDS position that no one notices.
Their document begins by providing the NLG’s interpretation of whether or not BDS runs afoul of US anti-boycott law. It then addresses how to deal with companies or institutions that claim politicized divestment decisions might contravene the fiduciary responsibilities of institutional investors. In English, that means managers of retirement and other types of funds have a responsibility to make responsible financial investments (not political statements) on behalf of their clients.
I’ve addressed the first point here, and while it would be interesting to see what happened if a company got hauled into court for violating the 1979 Export Administration Act (with a discovery process that forced organizations to reveal whether or not they had specific ties to Middle East governments, an critical issue covered by the Act), here on Earth (as a lawyer might say) the point is moot.
It’s moot because (1) to date there have been no organizations covered by the Act (i.e., US corporations) that have divested from Israel and (2) as far as I know, there have been no instances where anti-divestment activists have taken legal action against BDS in any way, shape or form. We’ve (successfully) challenged divestment politically, intellectually and morally, but so far no one seems to have been brought to court.
The fiduciary argument is a bit murkier since all the Guild is saying is that divestment advocates should tell their targets to switch from one specific (Israeli) investment to another non-Israeli investment in a way that is neutral in terms of risk and reward. But, at best, this can be considered a tactical suggestion for divestniks, rather than a well-reasoned piece of legal advice. For what constitutes a safe vs. an unsafe investment is a matter of opinion, one in which the NLG’s unsolicited, generic third-party legal advice would have to take a back seat to the legal and financial opinion of those responsible for managing a fund or other investment.
Personally, so long as divestment continues to lose so badly that they have to create hoaxes in order to win some headlines (any NLG advice to the BDS crowd on how to commit or avoid fraud?), I don’t anticipate a situation where taking anyone to court will be a necessary (or appropriate) strategy.
But this does bring up an interesting point that BDS activists would actually not be the ones to face legal consequences if they managed to convince a company, university or other organization to follow their program. Rather, it would be the investing/divesting institution that could find itself facing US Department of Commerce scrutiny, shareholder lawsuits or condemnation in the press.
That being the case, shouldn’t the NLG (which claims to represent the rule of law) suggest a policy of honest transparency to their BDS colleagues on the frontline? After all, since it will be investors who have to deal with the fallout of divestment decisions, don’t BDS advocates have a responsibility to let those investors know the risks they are taking by following BDSers suggestions?
I’ve seen too many occasions when some narrow political organization got a major institution (the Presbyterian Church, the City of Somerville, etc.) to flirt with divestment, only to let the church, town or other institution suffer the consequences of having taken the divestnik’s advice. Perhaps we could take BDS (and the National Lawyer’s Guide) more seriously if they were not both seeming to conspire to convince a third party to commit an act that is likely to be embarrassing, damaging, costly and (regardless of NLG’s opinion) potentially illegal.