Author Archive for jaya-ramji-nogales
Courting Genocide?
posted by Jaya Ramji-Nogales
This week, Peter Spiro and I hosted Jide Nzelibe at Temple’s International Law Colloquium. Jide presented his work-in-progress, Courting Genocide: The Unintended Effects of Humanitarian Intervention, on which Kristen Boon provided commentary. While I had several smaller quibbles and a few larger criticisms of the paper, it moves the scholarship on humanitarian intervention a step forward, as Kristen noted, by examining the motivations of all of the actors involved and suggesting that the effects of humanitarian intervention may not always be benign. Jide’s basic thesis is as follows:
because humanitarian interventions tend to increase the chance that rebel or victim group leaders are going to achieve their preferred political objectives, such leaders might have an incentive to engage in the kinds of provocative actions that make atrocities against their followers more likely in the first place
January 23, 2009 at 7:00 am
Posted in: International & Comparative Law
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A Role for Law?
posted by Jaya Ramji-Nogales
Lisa Belkin has a great article in this week’s NY Times Magazine about the need to redefine “experience” more broadly in order to ensure gender equity in career advancement. Using Caroline Kennedy’s non-traditional career path as an example, Belkin explains that women who step out of the workplace for several years in order to parent full-time are often viewed as lacking relevant and necessary experience to return to their prior careers or take up a new career. Belkin posits that we should instead view such women as having “a range of experiences, many shaped by motherhood.” She continues, “The only way work will become more flexible for everyone, for all of us, is if the untraditional begins to count.”
Having long subscribed to the view that we will see complete gender equity in the workplace only when working fathers take an equal role in parenting, which would require them to avail themselves of the same parental leaves and difficult career decisions that working mothers face, I find Belkin’s argument an interesting route to the same end. Rather than taking the larger step of ensuring that everyone who chooses to parent, male or female, shares equally in the career impact of that decision, Belkin’s approach takes baby steps towards that goal by trying minimize the career impact for those who temporarily step out of the workplace to parent. While there are promises and pitfalls to each approach, I’m more interested today in thinking about whether law can play a role in operationalizing these strategies.
January 6, 2009 at 11:28 am
Posted in: Feminism and Gender
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The Economy and Immigration
posted by Jaya Ramji-Nogales
Following up on Frank’s excellent post on outward manifestations of the financial crisis, here are a couple of less obvious ways that the meltdown might affect immigrants. First, the counterintuitive: immigrants may end up with more money in their pockets. Second, the ugly: we may see an increase in hate crimes against immigrants.
The obvious answer to the question of how the economy will impact immigration is that it will decrease border crossings –fewer jobs across the board and particularly less disposable income in the hands of those who pay immigrants to work in their homes will mean less demand for labor. Combined with harsh workplace raids and tightening borders, we’d expect the financial crisis to result in a decrease in immigration. While that was the trend at the beginning of the meltdown, the recent strength of the dollar may end up reversing this expected outcome. As AP reports today, remittances to Mexico in October increased by 13% over October 2007, as a strengthened dollar bought more weakened pesos. Dilip Ratha of the World Bank predicts that this phenomenon might actually lead to an increase in immigration to the U.S., especially as inflation and unemployment climb in Mexico.
Particularly with an increase in immigration, the ugly side of the economic crisis may be an increase in hate crimes against immigrants. The FBI reports that hate crimes against Latinos have increased dramatically — by 40 percent — from 2003 to 2007 (while the Latino population grew by only 16 percent). Call it the “Lou Dobbs” effect; as xenophobic vitriol and resulting anti-immigrant sentiment has increased, so has violence against immigrants or those who appear to be immigrants. Add that to an economy in free-fall, and the result may be highly combustible. As we saw in Long Island last month and Pennsylvania earlier this year, horrifying pastimes such as “beaner hopping” may proliferate as hate-mongering politicians and journalists scapegoat immigrants for job losses and other woes. Vigilant enforcement of hate crime statutes may alleviate some of the simmering tensions, but effective change will require more flattering portraits of immigrants in the popular media and public eye.
December 1, 2008 at 4:50 pm
Posted in: Immigration
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What, Me, Politically Irrelevant?
posted by Jaya Ramji-Nogales
Wait a minute, what’s that “whhhsshhht” sound I hear? No, it’s not the economy deflating, silly; it’s a law professor’s ego coming back down to earth. The NY Times reports today that “[t]hree sets of researchers recently concluded that professors have virtually no impact on the political views and ideology of their students.” Apparently the American Enterprise Institute’s fear of the “liberal thugocracy” of academia is overblown; parents and family are a much better predictor of an individual’s political predilections. Indeed, one study author goes on to assert that it’s difficult to change the political views of anyone over fifteen years of age. So much for inspiring social justice crusaders through Civil Procedure I or public defenders through Evidence. I’ll just crawl back into my little cave and watch some more YouTube videos mocking Sarah Palin.
Seriously, while I would hope that most law professors would agree that it’s not our mission or even our intention to change the political views of our students, I was surprised that college professors didn’t have more influence over their students’ ideology. Perhaps it’s because I attended that bastion of left-wing thuggery, UC Berkeley, but I suspect that my college professors had far more influence over my understanding of the world and thereby my political views than anyone before or after, including my parents and my law school professors. Certainly, I chose a particularly liberal school because of my pre-existing political leanings, but I do think there’s something to the idea that the person who provides the framework through which one views the world has a tremendous influence over one’s ideology, and that college professors are the most likely candidates to provide such frames — both because creating analytic frames is what they do for a living and because college students’ minds are relatively spongy and thus open to such frames. Were others as surprised by the outcomes of these studies as I was?
November 3, 2008 at 4:01 pm
Posted in: Law School (Teaching)
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Proposition 8′s Moral Dilemma
posted by Jaya Ramji-Nogales
Most readers are likely familiar with California’s Proposition 8 — a ballot initiative to eliminate the right of same-sex couples to marry by amending California’s state constitution (and thus overriding the California Supreme Court’s In re Marriage Cases decision this spring that found a right to same-sex marriage under the California constitution). In short, a “yes” vote on Proposition 8 ends gay marriage in California; a “no” vote protects the right to gay marriage.
Imagine that you are participating in a phone bank placing calls to encourage Californians to vote against Proposition 8 (in other words, you favor gay marriage). You place a call, and the voter on the other end tells you that she is opposed to same sex marriage and that’s why she’s voting no on Proposition 8. Your response? Do you say “Thanks for your time — make sure you get to the polls!” or do you correct her error, and explain that a no vote on Proposition 8 is actually a vote in favor of gay marriage?
After a friend recounted this real-life scenario this weekend, we presented the question to several (opposite sex) couples, and found that a fault line ran straight down the middle of each pair — most frequently (but not always), the women thought that there was no need to correct this voter’s error. There were two arguments made on this front; first, that there’s no obligation on the caller’s part to remedy the voter’s misperception, which was not, after all, created by the caller. Second, getting into the means-ends debate, the greater moral good of allowing gay marriage justifies the perhaps less moral stance of allowing this confused individual to vote against her true preferences. On the other side, most (but not all!) of the men argued that the ends don’t justify the means, and that the caller had a moral obligation to correct the voter’s misconception of Proposition 8. Their argument went something like this — you’re out canvassing for Obama on election day and someone you stop on the street says, “I’m not interested because I’m heading into that voting booth right now to vote for McCain!” If this voter is actually walking into the wrong polling place (assume, for argument’s sake, that you know where they should be voting) and will not be allowed to vote, are you justified in failing to correct their error? I omit the obvious and interesting counter-arguments here, but am intrigued to hear how readers in the caller’s shoes would have responded.
October 27, 2008 at 11:50 am
Posted in: Current Events
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Of International Crimes and Memory Sticks
posted by Jaya Ramji-Nogales
Perhaps my favorite news story of late (apart from the Somali pirates and their spokesperson) is the Colombian government’s seizure of a memory stick belonging to the rebel group FARC, containing the names, identities, aliases, and even some photos of over 9,000 guerrillas. One can almost imagine the guerrilla-in-chief stomping around muttering to himself, “I KNOW I had that memory stick around here somewhere.” And you felt bad about that memory stick you lost! In all seriousness, the FARC is notorious for its human rights abuses, and its entry into the digital age may benefit not only the group itself.
While genocidaires and other perpetrators of grave crimes often keep painstaking records of their crimes, it has been in the past an enormous task to track down, authenticate, and preserve this documentary record. In just one example, the Documentation Center of Cambodia (DC-Cam) has worked for over a decade to collect and store documentary evidence of the crimes of the Khmer Rouge, whose surviving leaders are soon to be tried before the Extraordinary Chambers in the Courts of Cambodia (ECCC). I flew all the way to Cambodia last summer to meet with ECCC officials on behalf of the DC-Cam to discuss document transfer, storage, and preservation protocols. Imagine if we could have just handed over a memory stick full of information to the court! What if Pol Pot had a laptop we could get our hands on? The possibilities are endless in the digital age; the ease with which we can now transfer information may be helpful not only for perpetrators but also for prosecutors of international crimes.
October 3, 2008 at 7:00 am
Posted in: Evidence Law, International & Comparative Law
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Fear Not the Inadvertent Waiver
posted by Jaya Ramji-Nogales
For those junior law firm serfs toiling away in the dungeons of document discovery drudgery, some good news is coming your way. Apart from thanking your lucky stars that you chose to be a lawyer rather than an investment banker, you can be happy about the recent promulgation of Federal Rule of Evidence 502. This new rule ensures that the unintentional disclosure of a privileged document does not result in automatic waiver of the attorney-client and work product privileges on all documents concerning the same subject matter. Rather than the current standard that allows for no human error, under the new rule, as long as you take “reasonable steps” to prevent disclosure and to rectify the error once discovered, the privilege will not be waived on related documents. Moreover, the rule applies not only to proceedings in federal court, but also to disclosures made to a “federal office or agency” — thus encouraging corporations to comply with federal investigations without needing to worry about broad waiver of privileges.
September 30, 2008 at 3:44 pm
Posted in: Evidence Law
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Barack Obama, meet . . . Barack Obama
posted by Jaya Ramji-Nogales
After two weeks of watching our economy implode, taking your retirement plan, your bonus, and the value of your home down the toilet, you people need a little comic relief. That’s what I’m here for. For those who haven’t been listening closely to their NPR, it turns out that there are at least eight Barack Obamas running for election in Brazil this year. Yes, you heard that right. Under Brazilian law, it turns out, candidates are allowed to run for office under any name, as long as it’s not offensive. So eight aspiring politicos, including a former air conditioner salesman and a man claiming a resemblance to Obama (but not actually bearing one), have officially changed their names in hope that it will bring them victory in October’s municipal elections. According to a very fun but very unscientific poll by The Economist, Brazilian voters would hand victory to Obama over McCain, and one re-named candidate saw his popularity rise (from third place to a tie for first) after changing his name. What’s that you were saying about lipstick on a pig?
September 25, 2008 at 4:43 pm
Posted in: Humor
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Sharia Courts in the UK
posted by Jaya Ramji-Nogales
According to this week’s Sunday Times, the Muslim Arbitration Tribunal has set up five Sharia courts throughout the United Kingdom. These courts hear solely civil cases, including divorce, domestic violence, and inheritance cases. The Sharia courts have been classified as arbitration tribunals under the same provision of the 1996 Arbitration Act used by Jewish Beth Din courts, which have resolved civil cases in Britain for over 100 years. As long as both parties in the dispute agree to give it the power to rule on their case, a decision of an arbitration tribunal is legally binding and enforceable through British county courts or the High Court.
While Muslim women who choose to use these Sharia courts for family law disputes are surely capable adults entitled to make their own decisions, the track record of the courts on women’s rights thus far is concerning. For example, in a recent inheritance case, the court divided a man’s estate by giving twice as much to his two sons as it did to his three daughters. And in six recent domestic violence cases, the court ordered the husbands to take anger management classes and participate in mentoring with community elders; the women withdrew their complaints from the police, who stopped investigations.
Can these courts be reconciled with British and European laws protecting gender equality? Given that participation requires consent of both parties, it will be difficult to find a plaintiff to challenge the courts’ unequal treatment of women. Perhaps a more fruitful course is suggested by Zareen Roohi Ahmed, the chief executive of the British Muslim Forum, an umbrella organization for mosques in the UK. Noting that sharia courts in Britain are still poorly organised, she proposes that the government support professionalization of the courts, including “female involvement . . . on the decision-making panels . . . and a wider range of scholars and academics involved to put more thought into making the rules and regulations applicable to today’s society.” It’s a thorny problem, to be sure, but by engaging with these courts rather than shutting them down, the British government might, in the end, protect the rights of more women.
Cross-posted on IntLawGrrls
September 19, 2008 at 7:00 am
Posted in: Uncategorized
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The Utility of the Washington and Lee Rankings
posted by Jaya Ramji-Nogales
As this fall’s law review submission period winds down, I am forced to ponder yet again the utility of the Washington and Lee law journal rankings. My aim is not to question their methodology here; rather, I wonder whether counterintuitive results — that is, results that don’t comport with a law school’s U.S. News and World Report rankings — can override the prestige rankings in the heads of law professors (rankings that generally match up with USN&WR). I would be the first to admit that W&L’s ranking methodology based largely on citation counts appears to be a more legitimate way to differentiate among law journals than a gut reaction that a higher-ranked law school must have a better journal. But it’s still a struggle to overcome the little rankings voice in my head repeating a mantra that has been with me since I first applied to law school almost fifteen years ago.
So, for example, a friend with an offer from the Virginia Journal of International Law — ranked first among international journals by W&L — sends me an e-mail to ask if she should expedite with the Harvard International Law Journal (ranked #2 by W&L) and the Yale Journal of International Law (ranked #6 by W&L). I don’t dispute that VAJIL may garner more cites than the Yale and Harvard journals, and as a scholar of international law, I’m fully aware that it’s considered the top specialty journal in the field. However, if I’m looking at a publication on an AALS form or a resume, particularly if it’s in a specialty journal in a field that I’m not familiar with, I have to admit that the fancier law school names would jump off the page at me a bit more energetically.
The issue might arise with more frequency in specialty journals, but we see it also in flagships. So, for example, if you were weighing an offer from the Ohio State Law Journal and the Washington University Law Review, which one would you take? I might be inclined to Wash U, which I’m well aware is a top 20 law school. However, the Ohio State Journal outranks the Wash U Journal by 10-16 places in W&L’s book, depending on how you slice it. But the prestige, the prestige, the prestige, the little voice chants — it’s hard to move beyond that factor.
September 16, 2008 at 9:42 pm
Posted in: Law School (Law Reviews)
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Responsibility for Srebrenica
posted by Jaya Ramji-Nogales
On Wednesday, a Dutch court rejected a claim for compensation by a group of Bosnian Muslims against the Dutch government for their peacekeepers’ role in the massacre at Srebrenica. In early 1993, United Nations peacekeepers, with the authorization of the UN Security Council, set up a “safe haven” for Muslim refugees in Srebrenica to protect them from attacks by the Bosnian Serb Army. The town has come to symbolize failed humanitarian intervention; after 350 Dutch peacekeepers fled for their lives in July 1995, the Serbs killed an estimated 7,000 Muslim men and boys in four days.
So what does law have to say about this tragic event, and, more importantly, what role should courts play in addressing intervenors who fail to prevent grave crimes? Leaving aside the leaders of the Bosnian Serb Army, many of whom have been charged with crimes by the International Criminal Tribunal for the Former Yugoslavia and some of whom faced civil liability claims in national courts, can courts of law be used to determine who was responsible for the failure to protect these refugees? Can and should courts play a part in ensuring that such failures are not repeated in the future?
September 12, 2008 at 7:00 am
Posted in: International & Comparative Law
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Gender Equality’s Top Ten
posted by Jaya Ramji-Nogales
Along with, presumably, the rest of Yale Law School’s alumni, I received an e-mail yesterday afternoon from Yale Law Women (YLW), a student group, listing the “Top Ten Family Friendly Firms.” This is not the first time that YLW has put together this list, but as far as I’m aware, it’s the first time they’ve sent it around to all alumni. YLW lays out the rationale for the list as follows:
YLW believes that the Top Ten List will be a catalyst for substantive change. Firms now have an opportunity to compare their policies to those of their peers. Practicing attorneys can use the List to advocate for improved work-life balance, and current law students can better assess their future employers.
This is not the first time we’ve seen law firm rankings employed in an effort to diversify the legal profession; last year, Law Students Building a Better Legal Profession released a report card on diversity in law firms (about which Frank Pasquale blogged here). While I find their goals noble, I wonder how successful these “listing” tactics are; i.e. do top 100 law firms really improve their diversity efforts in response to student generated lists? How far can studying and publicizing this problem take us? Will the “best and brightest” law students listen to their consciences rather than their wallets when choosing firms? With those questions in mind, I was curious about two apparently novel tactics that YLW is using: rewarding, rather than shaming, and actively distributing the list.
Instead of focusing on shaming those at the bottom of the list, YLW released only the Top Ten firms’ names and results (though I couldn’t find these results on the website). This approach is likely to be more appealing to the law firm audience, but I query whether rewarding will inspire more change than shaming. The reward tactic also gives law students who would work only at the most family-friendly firms a convenient short list (with, for example, only two New York law firms, including my former firm, Debevoise & Plimpton). But there are often other factors that influence the job search (for example, I chose Debevoise because of their international arbitration practice, and I’m not sure their absence from a “family friendly” short list would have altered that decision). And the “reward” approach leaves the calculations for policy comparison up to law students looking for jobs with or lawyers already working for firms outside the “top ten”, based on information that may not always be readily available.
September 9, 2008 at 4:55 pm
Posted in: Feminism and Gender
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The Incredible Shrinking European Union
posted by Jaya Ramji-Nogales
It’s official: the European Union released a report last week projecting that deaths will outnumber births in its 27 member states by 2015, only seven years from now. While the population in some E.U. nations (including Cyprus, Ireland, Luxembourg, and the United Kingdom) will continue to grow between now and 2060, dramatic declines will be seen in the populations of countries such as Bulgaria, Latvia, Lithuania, and Romania. Migration will continue to increase the E.U. population until 2035, but after that date, the population will begin to decline. By 2060, 30% of Europe’s population will be 65 and older, and 12% will be aged 80 and older. “In other words, there [will] be only two persons of working age for every person aged 65 or more in 2060, compared with four persons to one today.”
Particularly in those nations that rely heavily on taxes to fund social expenditures, this population decline could have dramatic impacts on welfare, social security, health care, and public school funding. But of course, I’m most interested in the impact these demographic changes may have on immigration laws. Will “Fortress Europe” become more welcoming to immigrants? What impact might more liberal European immigration policies have on U.S. immigration laws? To be sure, increased immigration alone will not solve the complex problems resulting from the “greying of Europe”, but what will happen if the current restrictionist laws remain in place? Stay tuned . . .
Cross-posted at IntLawGrrls
September 6, 2008 at 2:12 pm
Posted in: Immigration
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Citing Wikipedia — Harmless Error?
posted by Jaya Ramji-Nogales
A warm thank-you to Concurring Opinions for the invitation to return as a guest blogger! I enjoyed myself so much last time that I couldn’t resist returning despite being on leave.
On to the juicy stuff. Much of my scholarship focuses on documenting and analyzing the disastrous state of our immigration system. I’m not alone in my fascination with this topic; in July, the Department of Justice’s Office of the Inspector General released a report on politicized hiring, over one third of which is devoted to immigration courts and the Board of Immigration Appeals, and the Government Accountability Office will soon release a report documenting the countless problems with the immigration courts.
Moreover, I know that all of you law professors out there have received at least one student paper (if not multiple papers) that cites Wikipedia. This is one of my pet peeves and always garners a “FIND PRIMARY SOURCE!!” notation in the margins. But now I have an Eighth Circuit case, Badasa v. Mukasey, to which I can refer my students. Yes indeed, the Department of Homeland Security trial attorney submitted “information from an Internet website known as Wikipedia”, to be fair, among other documents, to establish the meaning of the term laissez-passer. (Note that the relevant Wikipedia page even warns the reader: “This article does not cite any references or sources.”)
September 3, 2008 at 9:26 am
Posted in: Immigration
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Are You an Intuitive or a Deliberative Information Processor?
posted by Jaya Ramji-Nogales
Quick — take this test:
(1) A bat and a ball cost $1.10 in total. The bat costs $1.00 more than the ball. How much does the ball cost?
____ cents
(2) If it takes 5 machines 5 minutes to make 5 widgets, how long would it take 100 machines to make 100 widgets?
____ minutes
(3) In a lake, there is a patch of lily pads. Every day, the patch doubles in size. If it takes 48 days for the patch to cover the entire lake, how long would it take for the patch to cover half of the lake?
____ days
(see below for answers)
In an interesting new article, Blinking on the Bench: How Judges Decide Cases, Chris Guthrie, Jeffrey Rachlinski, and Andrew Wistrich report the answers of 252 Florida trial judges to this Cognitive Reflection Test (CRT), which is designed to have a “correct answer that is easy to discern upon reflection, [as well as] an intuitive–but incorrect–answer that almost immediately comes to mind.” The judges scored, well, slightly better than the average undergraduate student subject at Michigan and slightly worse than the average undergraduate student subject at Harvard. Almost one-third of these judges didn’t answer any of the questions correctly; another third answered one question correctly; less than a quarter of the judges answered two questions correctly; and only one seventh answered all three correctly. Their mean score of 1.23 compares unfavorably to student subjects at MIT (2.18), Carnegie Mellon (1.51), and Harvard (1.43).
So what does this all mean? Looking to this data alongside other studies, the authors argue that judges often make decisions intuitively rather than deliberatively. This is not always a problem; indeed the authors note that the “conversion of deliberative judgment into intuitive judgment might be the hallmark of expertise.” But, judges who respond intuitively, as the test results show, might make inaccurate decisions. The paper concludes with several suggestions as to how to limit “bad” intuitive decisionmaking –more time and resources, requiring written opinions, training and feedback, use of scripts and checklists, and separating out decision-making authority– very similar to suggestions that my co-authors and I made in our recent article, Refugee Roulette, which describes disparities in decision-making in the asylum process. Sounds like we might need to stop those asylum adjudicators from blinking on the bench . . .
February 27, 2008 at 4:45 pm
Posted in: Behavioral Law and Economics
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The Sun Never Sets on the British . . . Emigrants
posted by Jaya Ramji-Nogales
The Telegraph reports on a recent OECD study finding that record numbers of skilled professionals are fleeing Britain for more hospitable lands, including the United States, Canada, Australia, New Zealand, France, and Spain. According to the report, the United Kingdom is said to have the worst “brain drain” problem of any nation, having lost one in ten of its most highly qualified professionals. In 2006, 207,000 citizens left the United Kingdom — more than one every three minutes. Only Mexico has had more emigrants in recent years. Apparently free universal health care is not enough to keep skilled Britons from leaving; high house prices and taxes and bad weather are the most commonly cited reasons for leaving. What’s saving Britain from a severe shortage of skilled labor? Immigrants, of course — over a million skilled immigrants have arrived on British shores to take the place of the 1.1 million Britons who have left.
February 24, 2008 at 7:01 pm
Posted in: Immigration
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Things That Make You Go Hmmm . . . .
posted by Jaya Ramji-Nogales
The March Atlantic Monthly has an interesting blurb about increasing wage discrimination against overweight white women, based on a report from the U.S. Bureau of Labor Statistics. Even more interesting than the finding of wage discrimination was the finding that the rate of being overweight and obese in white females has increased from 12.6% in 1981 to 50.4% in 2000. Perhaps I’ve been living under a rock, but this seems to me a shocking jump, and during a period when my impression was that the U.S. was paying increasing attention to healthy diets and exercise. It’s not entirely clear where the primary source found the data on overweight and obese women; the weight gain findings are mentioned only in the context of a dataset that examines the weight of a cohort of women over time through annual and then biennial self-reporting interviews. I can’t imagine the report based the weight-gain statistics on this crowd, given that these women are likely to gain weight as they get older and therefore don’t strike me as a reliable subset from which to extrapolate to the population as a whole. Any thoughts from statisticians and others on the source and reliability of these data?
February 22, 2008 at 1:05 pm
Posted in: Employment Law
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Calder and World-Wide and Shoe, Oh My!
posted by Jaya Ramji-Nogales
If, like me, you are teaching the jurisdictional portion of Civil Procedure this semester, and if, like me, your students are eager for cases that relate to the age of the internet (for me, the second most popular request after “more hypotheticals”), here’s some candy for you: Dudnikov v. Chalk & Vermilion Fine Arts. In a clearly-written opinion, the 10th Circuit applies all of our old friends, from International Shoe to World-Wide Volkswagen, from Burger King to Calder (even a mention of Keeton!) to an eBay dispute.
So here’s what happens: Ms. Dudnikov and her husband run a “small and unincorporated” business selling fabric on eBay from their home in Colorado; their Colorado location is clear from their eBay auction page. One type of fabric uses a design by Erte, a 20th century artist, but replaces the elegant character in the design with Betty Boop and her dog, Pudgy. Chalk & Vermilion (a Delaware corporation with its principal place of business in Connecticut) is the American agent of a British corporation that owns the copyright to Erte’s works. Chalk decides that this fabric infringes their copyright, and instead of playing nice and sending Dudnikov a cease and desist letter, it files a “notice of claimed infringement” or NOCI with eBay (in California), which terminates the fabric auction and puts a “black mark” on Dudnikov’s eBay record (which until now has enjoyed a 99.9% satisfaction rating). Dudnikov offers to remove the offending fabric if Chalk pulls the NOCI; Chalk refuses and notifies Dudnikov that it plans to file suit in federal court with in 10 days to prevent the fabric auction from being reinstated. Not so fast — in the meantime, Dudnikov and her husband file suit against Chalk and its British counterpart in Colorado federal court, seeking a declaratory judgment and an injunction against interference with future fabric sales. You can see where this is all going — defendants enter a special appearance and move to dismiss for lack of personal jurisdiction. And that’s where the fun begins! Plenty of good times to go around.
February 15, 2008 at 9:45 am
Posted in: Civil Procedure
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The Perils of Universal Jurisdiction
posted by Jaya Ramji-Nogales
While generally a supporter of the concept of universal jurisdiction for trying grave international crimes (i.e. war crimes, crimes against humanity, and genocide), Spain’s recent indictment of 40 Rwandan army officers on international criminal charges raises interesting questions about the appropriateness of trying such cases in the domestic courts of nations with little connection to the conflict from which these crimes arose. As an internationalist, it’s hard for me to argue with the idea that the crime of genocide, war crimes, and crimes against humanity are so serious that its perpetrators are hostii humani generis — enemies of all humankind — and have thereby opened themselves up to prosecution wherever they may be found. But the practical implications of this Spanish case test the boundaries of this principle in ways that should be of concern to even the most die-hard advocate of universal jurisdiction. 
First, the moral authority question. The charged Rwandans were not responsible for the 1994 Rwandan genocide (Hutus killing Tutsis), but for acts by Tutsi-led rebels who defeated the Hutu extremists responsible for the genocide. Certainly, these soldiers should be held responsible for violations of international criminal law in their efforts to end the overwhelming violence perpetrated in Rwanda — but where was the Spanish army when the Hutus were slaughtering hundreds of thousands of Tutsis? Given the woeful failure of the international community to step in, it seems a bit rich to now be indicting the Tutsis who were left to their own defenses.
February 14, 2008 at 4:17 pm
Posted in: International & Comparative Law
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Using Immigration Law to Prosecute Terrorism Charges: Double Jeopardy or Fair Play?
posted by Jaya Ramji-Nogales
The case of Lyglenson Lemorin, a lawful permanent resident from Haiti facing terrorism charges in immigration court, raises interesting questions about the use of immigration law to prosecute terrorism cases. This phenomenon, known less-than-affectionately as “Crimmigration“, has been used to remove (aka deport) immigrants convicted of a variety of crimes after they have served prison time. But in what one immigration official calls the first case of its kind, Mr. Lemorin was acquitted of terrorism charges by a federal jury in Miami in December, yet faces nearly identical “material support” conspiracy offenses in immigration court this week.
Of course, the standard of proof for criminal charges in federal court is beyond a reasonable doubt — but not in immigration court; rather, the government must meet only the clear and convincing evidence standard in establishing that Lemorin conspired to engage in terrorist activity. In addition, he loses not only constitutional protections awarded to criminal suspects as well as the protections of the Federal Rules of Criminal Procedure, but the Federal Rules of Civil Procedure and the Federal Rules of Evidence don’t even apply in immigration court. One might say that the cards are stacked in favor of the government. Instead of a jury, Mr. Lemorin will be tried by an immigration judge, the perils of which are outlined in my recent article “Refugee Roulette.”
This particular case — lodged against a lawful permanent resident, a married father of two whose family now struggles to support itself — has drawn criticism not only from immigrants’ rights lawyers but also from Prof. David Martin, the former general counsel of the administrative agency formerly known as INS (now the Department of Homeland Security). Martin sees potential unfairness in the authorities’ ability to essentially try Lemorin twice for the same crime. But some might say that, like using tax laws to prosecute the Mafia, the immigration laws are fair game for ferreting out potential terrorists — after all, all’s fair in love and war. Isn’t it?
February 8, 2008 at 4:29 pm
Posted in: Immigration
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