Will someone please explain to Andrew Sulivan
    the meaning of “first refusal”?

Andrew Sullivan criticizes Wesley Clark:

An interesting position from Wesley Clark:

And I would say to the Europeans, I pledge to

you as the American president that we’ll consult

with you first. You get the right of first refusal

on the security concerns that we have. We’ll

bring you in.

The right of first refusal. I’m with Clark on consultation and on building the U.S. alliance in Europe. But first refusal? That’s tantamount to Howard Dean’s view that we should seek the “permission” of the United Nations before military action. Permission?

Pretty devastating, don’t you think? Clark wants to give the cheese-eaters a veto over our self-defense.

Just one thing, though: Sullivan doesn’t seem to know what “first refusal” means.

A “right of first refusal” is a contractual obligation to offer a transaction to the holder of that right before offering it to anyone else. For example, a book contract might provide that the author must offer his next book to the same publisher on stated terms, and offer it elsewhere only if that publisher declines the offer, or alternatively that the publisher can have the next book by meeting any competing offer.

The holder of a right of first refusal cannot keep the other party from making the deal in question; if he refuses the deal, the right lapses. So “first refusal” has exactly nothing to do with “permission.”

What Clark was saying is that we ought to try, when our security is threatened, to work with Europe, and go it alone only if Europe won’t play on terms acceptable to us.

I assume this was a subjectively sincere mistake. But it’s not unreasonable to think that Sullivan believed that Clark had said something foolish mostly because he wanted to believe that.

After all, Sullivan’s agent and his lawyer surely know what a “first refusal” is, or he could have Googled it and found the definition here, for example.

If Sullivan squarely faced the facts — that Clark is both a strong, consistent, and competent opponent of Islamicist terror and a strong backer of gay rights (including the right to serve in the military) — Sullivan might have to consider supporting Clark, which would be an exquisitely bad career move.

No doubt others will bring this error to Sullivan’s attention. It will be interesting to see whether he corrects himself. Any bets?


Daniel Drezner, who knows more about diplomacy than I do, initially sided with Sullivan on this, but has backed off to the position that Clark’s words were ambiguous. He points out that the term “first refusal” is not one with any currency in diplomatic discussions, which seems to me right: Clark was borrowing a term from business law to express his viewpoint.

Eugene Volokh finds the borrowing obscure, I think because “first refusal” in its strict sense means not doing business with someone other than X until and unless X declines. So who’s the “someone else”? Pretty clearly, it seems to me, a pick-up team (“coalition of the willing”): Clark is saying that we shouldn’t put together a roll-your-own coalition to handle a problem until we’ve tried hard to work with our long-term allies, and we should expect the same of them. That doesn’t seem to me to stretch the meaning of “first refusal” at all out of shape, while interpreting it as giving the Europeans a veto does.

A possible response here is that the current administration is already doing what Clark recommends. But Drezner, for example, doesn’t think so: in this earlier post, he reviews the bidding on just how shabby a diplomatic job Team Bush did in the run-up to the Iraq War. (Though he adds that in the end it wouldn’t have mattered much.)

So I see no reason to think that Clark was using “first refusal” in other than its standard sense, and therefore no basis for criticizing what Clark said or how he said it. Drezner and Volokh both find his words ambiguous, but it seems to me that they have allowed themselves to be influenced by Sullivan’s initial misinterpretation.

If you start with the idea that Clark was saying something outrageous, then it seems reasonable — even generous — to consider the possibility that he wasn’t saying something outrageous. But since neither Sullivan nor the others has offered any meaning of “first refusal” that’s consistent with the idea of needing permission, and since the alleged outrage is that Clark proposed to get European permission before defending the country, I think the best interpretation here is that the whole flap is a tempest in a teapot.

Atrios agrees, and points to a lovely Sam Donaldson quote that explains a lot.

Brad DeLong and Kevin Drum have both displayed their willingness to criticize politicians they otherwise admire when those politicians screw up, and DeLong isn’t even a Clark partisan. Both of them read this story the same way I do.

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: Markarkleiman-at-gmail.com

5 thoughts on “Will someone please explain to Andrew Sulivan
    the meaning of “first refusal”?”

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