Author Archive for melissa-waters
Levit Named Interim Dean at Tulsa
posted by Melissa Waters
Congratulations are in order for my dear friend Janet Koven Levit, who was just named Interim Dean at the University of Tulsa Law School. I have had the great privilege of visiting and speaking at Tulsa Law School on a couple of occasions, in particular as a panelist at a terrific symposium that Janet hosted a few years back on international law and the Supreme Court. Kudos to Tulsa for having the good sense to appoint Janet to this new role, and all the best to Janet and the law school as they move forward together!
(IntLawGrrls has more on Janet’s appointment here).
October 12, 2007 at 2:32 pm
Posted in: Law School (Hiring & Laterals)
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Here’s a trivia question for you: What is soon to be the world’s first “carbon neutral” state?
posted by Melissa Waters
Answer: The Vatican, which has just announced a partnership with Klimafa, a Hungarian start-up company, to help restore an ancient forest by planting trees on a 37-acre tract of land along the Tisza River in Hungary. The tract will be renamed, appropriately enough, the “Vatican climate forest,” and will reportedly offset all of the Vatican’s carbon dioxide emissions for 2007. The project is part of the Vatican’s ongoing efforts to “go green”, in keeping with Pope Benedict’s admonition to the international community to “respect and encourage a ‘green culture’”.
To my mind, this is a terrific example of the positive, creative role that emerging transnational public-private partnerships of all kinds can play in finding solutions to problems as intractable as global climate change. And this is a particularly intriguing example of a transnational public-private partnership, encompassing cooperative relationships between the Vatican, the Hungarian government, and private industry. As Elisabeth Rosenthal of the New York Times points out, this is a win-win for all concerned: The Vatican gets to set an example for the international community, and gets some great press for its efforts. Hungary (whose government scientists will be consulting on the reforestation project) gets abandoned, denuded land restored as native forest. The project will be great for the local “climate” (it will provide much-needed jobs in the area), and will have a beneficial impact (if only symbolically) on the global climate, as well. And last (but certainly not least, in my mind), the Hungarian start-up “gets the Vatican’s seal of approval and free publicity for its first project.”
Of course, the carbon offset idea is still novel and the subject of fierce debate among environmental law and policy experts – a debate that I am not even remotely qualified to take up. But I am intrigued by the emergence of transnational public-private partnerships of this kind: It strikes me as an extraordinarily important phenomenon, and one that has the potential to transform the way that international law and policy is created and implemented.
Does anyone know of academic research (legal or otherwise) being done on the emergence of these sorts of transnational public/private partnerships? I’d like to learn more about it.
September 17, 2007 at 7:26 pm
Posted in: International & Comparative Law
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AALS Call for Papers: New Voices in Human Rights
posted by Melissa Waters
From the AALS International Human Rights Law Section:
The International Human Rights Law Section is reminding interested individuals that it will repeat its popular “New Voices” program to assist faculty members and other scholars who have not previously had an opportunity to present a scholarly paper at an AALS annual meeting. The program will be Friday, January 4, 2008, from 10:30 a.m. to 12:15 p.m. This is considered by many to be a “prime time slot” at the AALS annual meeting, during which new scholars will summarize recent scholarship and academic works in progress. Individuals who are interested in being considered for the “New Voices” panel should submit an abstract of one to three pages describing their research or scholarship.
Abstracts of one to three pages of a topic for presentation should be submitted by Wednesday, October 10, 2007 to Mark E. Wojcik at The John Marshall Law School, 315 S. Plymouth Court, Chicago, IL 60604, or by email (preferred) at 7wojcik@jmls.edu. This is an extension of the previous deadline, which was September 26, 2007. Abstracts will be reviewed by a special committee and selections made for the final program presentation. We hope to maximize the number of possible presenters.
A completed paper is not necessary, only the abstract setting forth the main ideas of the presenter. The committee hopes that eliminating the requirement of submitting a finalized paper will encourage the submission this year of more “works-in-progress” and will also allow the final papers to incorporate comments and answer questions raised during the “New Voices” panel. This is expected to be a popular and supportive panel to promote human rights scholarship. Proposals chosen will have about 10 minutes to present their paper, to be followed by discussion of all the presentations.
September 14, 2007 at 12:30 pm
Posted in: International & Comparative Law
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“Bad Thai cops to endure Kitty shame”
posted by Melissa Waters
This one was just too good to pass up — both for the headline, above, and for the story itself. From the Associated Press:
BANGKOK, Thailand – Thai police officers who break rules will be forced to wear hot pink armbands featuring “Hello Kitty,” the Japanese icon of cute, as a mark of shame, a senior officer said Monday.
Police officers caught littering, parking in a prohibited area, or arriving late — among other misdemeanors — will be forced to stay in the division office and wear the armband all day, said Police Col. Pongpat Chayaphan. …
The striking armband features Hello Kitty sitting atop two hearts.
“Simple warnings no longer work. This new twist is expected to make them feel guilt and shame and prevent them from repeating the offense, no matter how minor,” said Pongpat, acting chief of the Crime Suppression Division in Bangkok.
“(Hello) Kitty is a cute icon for young girls. It’s not something macho police officers want covering their biceps,” Pongpat said.
Indeed.
August 6, 2007 at 10:20 am
Posted in: International & Comparative Law
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Call for Papers on Property
posted by Melissa Waters
Ben Barros of PropertyProf Blog asked me to cross-list the following Call for Papers. All you junior property scholars out there, have at it!
Eric Claeys and I have organized a junior scholars property works-in-progress panel for the AALS meeting in New York. Here are the details:
Call For Submissions
AALS Property Law Section Junior Scholars Works-In-Progress Panel
The AALS Property Law Section invites junior property scholars to submit works in progress for a junior scholars panel at the upcoming AALS Annual Meeting in New York The panel will take place on Sunday, January 6, from 9:00 a.m. to 10:45 a.m. At the panel, paper authors will have the opportunity to present their papers and receive commentary from senior scholars knowledgeable about their paper topics.
Submissions: Two papers and an alternate will be selected for the panel by blind peer review. Papers should be submitted by e-mail to dbbarros@mail.widener.edu by September 15, 2007 with the subject line “Property Junior Scholars Panel.” To facilitate blind review, authors should place their names and other identifying information on a separate cover page. Authors also should alter or delete references within the text that would reveal their identities to a referee. During the selection process, papers will be judged by how successfully they establish their contributions in a scholarly manner and by how substantially those contributions add to current property law and scholarship.
Eligibility: The panel is open to scholars who (a) currently have a permanent or visiting appointment at an AALS member or fee-paid school; (b) have been teaching for six or fewer years; and (c) do not yet have tenure. Papers that have been accepted for publication may be submitted for consideration, but only if they are early enough in the production process for the author to fully incorporate comments provided at the panel.
Please direct any questions to the panel organizers, Ben Barros (dbbarros@mail.widener.edu) and Eric Claeys (eric.claeys@gmail.com).
Ben Barros
August 2, 2007 at 10:50 am
Posted in: Law School (Scholarship)
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“Judges Behaving Badly” in Clerkship Hiring
posted by Melissa Waters
The Wall Street Journal blog has an entertaining post/discussion this week about the frenzied market for judicial clerks. (My thanks to Brian Leiter for calling my attention to the WSJ post.) The post discusses a recent survey conducted by Judge Richard Posner, Christopher Avery, Christine Jolls, and Alvin Roth as part of an update to their 2001 Chicago law review article on the federal clerkship hiring process. (The paper is available for download at SSRN.) The authors surveyed recent graduates at Yale, Chicago, Harvard, and Stanford who applied for clerkships in 2004 or 2005. The survey offers up all sorts of interesting (though not particularly surprising) statistics, suggesting that the 2003 changes to the clerkship hiring guidelines have been less than successful: Over a third of those surveyed received interview offers before the “official” guidelines permit, one quarter interviewed with judges before they were supposed to, and 12% received job offers from judges who had jumped the gun on the official start date for offers. On the WSJ blog, recent law graduates have weighed in with their own horror stories about the clerkship hiring process.
The clerkship hiring frenzy is certainly not a new phenomenon. I’m reminded of the experience of a Yale law school classmate back in the late 90s. The student got a call from a judge who said, “IF I were to make you an offer right now – and I’m not saying that I am – but IF I were to make you an offer right now, how long would it take you to accept it?” Dumbfounded, the student replied, “Uh, well … I suppose I could let you know within the hour?” Dead silence on the other end of the line. The student said, “Judge X? Are you still there, Judge X?” Another long pause. And finally, the judge replied, “Hold on. I’m THINKING.”
I told this story to my father, who as a federal judge in Arkansas had been hiring clerks for over twenty years. (For the most part, he opted out of the process entirely by hiring (generally superb) clerks from the University of Arkansas. As a trial judge, he took the view that his clerks should have a feel for the people and a respect for the local culture – and that gave local graduates a decided edge.) My father was amazed that other federal judges would engage in (in his words) “such nonsense.” “I just don’t get it,” he said, shaking his head. “Why do they care so much who they hire? The job is not rocket science — any decent lawyer can do it. And besides … you’re a bunch of damn kids!”
July 27, 2007 at 10:47 am
Posted in: Uncategorized
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Having obstetric/gynecological surgery anytime soon at one of the hundreds of teaching hospitals around the country?
posted by Melissa Waters
Then be forewarned that, while you are under general anesthesia, medical students may be performing “practice” pelvic exams on you without bothering to first notify you or obtain your consent. Instead, the hospital assumes that you “consented” to the exam when you signed the general pre-operative surgery consent form, even though these forms typically do not mention the procedure. A few years ago, a short-lived media firestorm led to federal hearings on the issue; the American Association of Medical Colleges (which represents most of the nation’s medical schools and over 400 teaching hospitals) issued a statement condemning the practice as “unethical and unacceptable.”
But according to my colleague Robin Fretwell Wilson, who has done extensive research on the issue, the practice lives on at many teaching hospitals around the country. Incredibly, many doctors justify the practice by simply asserting that women will not consent if asked. Since medical students need to practice pelvic exams, they argue, the needs of the medical establishment should trump a woman’s right to be asked for permission before unnecessary medical procedures are performed on her. (In fact, their assumption that women won’t consent if asked is dubious; one study indicates that at least 50% of women do give permission when asked in advance.) According to Professor Wilson, some teaching faculty bluntly assert that poor patients who receive free or subsidized care at a teaching hospital “owe it to the facility and society” to participate. For more information on the controversy, see Professor Wilson’s article, Autonomy Suspended: Using Female Patients to Teach Intimate Exams Without Their Knowledge or Consent (available for download here at SSRN).
If you live in the great state of Virginia, you’re in luck. Thanks to Professor Wilson’s hard work and advocacy efforts, the Virginia legislature just enacted legislation requiring specific informed consent for the practice. (California has also enacted similar legislation.)
By the way, if you’re a man thinking that this issue doesn’t affect you, you might think again. If you ever go in for prostate surgery, think twice before you sign that general consent form: You may be signing up for a free rectal exam or two (or three), courtesy of whatever medical students happen to be on rotation that day.
July 24, 2007 at 11:15 am
Posted in: Health Law
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Rural Rhetoric
posted by Melissa Waters
I’ve spent some time over the past few days reading through the various law review reprints that tend to collect on my desk during the school year. The reprint that I read this morning was so entertaining and intriguing that I just had to mention it. It’s “Rural Rhetoric,” by Lisa Pruitt at UC Davis, published recently in the Connecticut Law Review (download it here). Here’s an excerpt from the abstract:
This Article investigates law’s constitutive rhetoric about rural people, places, and livelihoods. Specifically, it considers five categories of judicial opinions that discuss the legal relevance of rurality: judicial self-identification as rural; definitions of rural; line-drawing between rural and urban; taking judicial notice of rural characteristics; and idealized portrayals of the rural. … This collection of judicial narratives reveals that law’s portrait of rurality has been greatly influenced by popular perceptions of the rural that persist in our national consciousness, including nostalgia for our rural past. Such nostalgia is reflected in judicial assumptions that rural areas are safe and that rural people are neighborly. It is also evident in idyll-ising rhetoric about rural land. In addition, the long-standing notion that law should play less of a role in rural livelihoods persists, apparently based on assumptions that rural people are self-sufficient, rural communities self-contained.
The cases surveyed illustrate not only how legal rhetoric constitutes, maintains, and transforms the rural, but also how this rhetoric demonstrably influences outcomes. With respect to some issues, law’s rhetoric – and therefore law itself – lags behind reality, due in part to out-dated assumptions about rural communities. Other legal rules have evolved to reflect rural realities, changed as they are in recent years. While this Article lauds courts for the attention they have paid to the dimension of place in legal analysis, it nevertheless argues that judges should be more careful not to rely on stereotypes in making and applying legal rules. Judges should pay closer attention to rural realities, including the differences among the many places and people they label “rural.”
Like me, Professor Pruitt grew up in a little old country town in the beautiful Ozark hills of Arkansas, so this is an article that she was born to write. It makes for fascinating reading. I should admit that I might be a bit biased in Professor Pruitt’s favor — not only because she hails from the great state of Arkansas, but also because she had the good sense to discuss an opinion written by my father, the late H. Franklin Waters, who was a federal judge in Arkansas for over twenty years. In Horton v. Taylor, he took judicial notice of the enormous importance of decent country roads to rural voters, and of the resulting pivotal role that road grader operators play in the political fortunes of Arkansas’ county judges. (County judges are the chief elected officials in rural Arkansas, and are judged by voters almost exclusively on their ability to maintain and improve county roads). Taking into account the peculiar circumstances of rural life in the Arkansas hill country, he held that road graders “were so closely linked to the county judge that they became his alter ego for purposes of political patronage, meaning that the judge could terminate and hire them at will.” The Eighth Circuit didn’t buy it — presumably, as Professor Pruitt notes, because “sitting far from rural Arkansas, the court was skeptical that a position as menial as road grader operator could be so significant.”
But my father knew whereof he spoke. Shortly after he was appointed to the federal bench, he took a trip down to the tiny west Arkansas farm town of Slatonville, where he was born and raised. One of the old-timers in town stopped him and said, “Well, Franklin, I hear you’re some kind of damn big shot these days. Can you help us get somebody out here to blacktop these here roads?” My father had to confess to his former neighbor that he couldn’t be of much help. In the vocational hierarchy that still predominates in the country’s last remaining, wonderful rural places, the federal judge remains a far less powerful individual than the county judge.
Kudos to Professor Pruitt for crafting a delightful and truly original piece of scholarship.
July 18, 2007 at 1:17 pm
Posted in: Articles and Books
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Is This The Beginning of the End for U.S. News Undergrad Rankings, and Will Law School Rankings Survive the Collapse?
posted by Melissa Waters
The New York Times reports today that the presidents of dozens of liberal arts colleges have agreed to stop participating in U.S. News’ college rankings survey. According to the report, the Annapolis Group, an association of liberal arts colleges, released a statement that a majority of the 80 college presidents attending its annual meeting had declared their intent not to participate in the U.S. News rankings. The move follows on the heels of similar efforts by college presidents earlier this year, and of a widely-publicized critique of the rankings system last month in the Chronicle of Higher Education.
Has the liberal arts world finally decided that enough is enough? The Times quotes Judith Shapiro, president of Barnard College: “Frankly, it had bubbled up to the point of, why should we do this work for them? … [T]his is not our project.” Of course, the jury is still out on whether the liberal arts colleges’ nascent rebellion will have legs. Not surprisingly, some schools at the top of the food chain – e.g., #2 Amherst – plan to continue to cooperate with U.S. News, and want further “discussion” of the issue. Still, this latest move by liberal arts colleges seems to be more than mere window dressing.
All of this has me wondering: If U.S. News loses its undergrad rankings cash cow, will the law school rankings be far behind? Or might the law school rankings survive, even if the undergrad rankings collapse? Put differently, are there reasons why the law school world will (and perhaps should) continue to “do U.S. News’ work for them”?
I can think of a couple of reasons why law school rankings might survive, despite the collapse of undergrad rankings.
June 20, 2007 at 4:07 pm
Posted in: Law School (Rankings)
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Another AALS Call for Papers
posted by Melissa Waters
This one is for my fellow civil procedure enthusiasts.
The AALS Section on Civil Procedure has issued a Call for Papers to be presented at the AALS Annual Meeting in New York on January 4, 2008. The topic for this year’s program is “The Revolution of 1938 Revisited: The Role and Future of the Federal Rules.” Here’s the summary:
70 years ago, the Federal Rules changed the landscape of civil litigation. Procedure in the federal courts became uniform and adopted a flexible, notice-based model that contemplated liberal access to discovery. Over time, most states followed suit. Some have called this the Golden Age of Rulemaking.
What will the next 30 years of rulemaking look like? What should they look like? From pleading standards to discovery to summary judgment practice, there is no shortage of critics of the federal model. And, increasingly, questions are raised about the extent to which state practice should continue to follow the lead of the Federal Rules. States might adopt different practices out of a belief that the state and federal courts hear different types of cases and are designed to do different things. States might adopt different practices in a spirit of local experimentation, supplementing or even displacing the federal rulemaking process as the leader in innovation and reform. Or, states might simply depart from the Federal Rules model out of a belief that the federal model proceeds from flawed first principles. Different models of judicial federalism could support very dif ferent conclusions about the proper interaction between state rulemaking and federal rulemaking.
Sounds like a great topic! (And for all you civ pro skeptics out there, who think this all sounds mind-bogglingly dull, you truly don’t know what you’re missing.) More information below the fold.
June 12, 2007 at 3:03 pm
Posted in: Civil Procedure
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Can Boeing Make the U.S. Government Pay Up?: Human Rights Litigation and “Who Pays” Arbitration
posted by Melissa Waters
Last week, the ACLU filed a federal lawsuit against a subsidiary of Boeing Company, on behalf of alleged victims of the U.S. government’s “extraordinary rendition” program. The lawsuit, filed under the Alien Tort Statute, claims that Boeing’s subsidiary knowingly aided the CIA in transporting terror suspects to secret overseas locations, where they were tortured. The ACLU did not name the U.S. government itself as a co-defendant in the suit, presumably because it feared that the U.S. would successfully plead some sort of governmental immunity as a defense, and that Boeing might be able to free ride on that defense.
The ACLU’s strategy – go after the corporate accomplice, and leave the government perpetrator out of it – is increasingly typical of human rights litigation under the Alien Tort Statute and its sister statute, the Torture Victim Protection Act. Frustrated in their attempts to hold U.S. and foreign governments themselves legally accountable for abuses, human rights lawyers have increasingly turned their sights on multinational corporations who “aid and abet” governments in committing human rights abuses. (According to business groups who track these suits, claims against corporations now make up roughly 75% of all lawsuits filed under the ATS and TVPA.)
Not surprisingly, this state of affairs has transformed corporate lobbying groups into mortal enemies of the Alien Tort Statute – but thus far, their efforts to kill the ATS have yielded little. Congress has declined to repeal or amend the ATS to protect corporate interests, and the Supreme Court has left the ATS door open to suits against private actors.
Would corporations be better off abandoning their “kill the ATS” strategy altogether, and instead seeking a kind of compromise with human rights groups? Should they refocus their efforts toward shifting the blame – and the litigation costs – to the state actors who perpetrated the human rights abuses in the first place? That’s the question posed by Roger Alford in an intriguing article, “Arbitrating Human Rights” (forthcoming in Notre Dame Law Review). (You can download it here.)
The problem, as Alford sees it, is that all too often, “human rights litigation against corporations is a proxy fight in which the accomplice is pursued while the principal evades punishment.” He (rightly, in my view) questions a state of affairs in which the corporate accomplice alone bears the cost, while the primary malfeasor – the state itself – escapes liability.
Alford’s proposed solution? Corporations should look to the fine print in their existing contracts with sovereigns. Contracts between corporations and sovereigns typically include provisions regarding waivers of sovereign immunity and arbitration. Alford asserts that a corporation found liable for aiding and abetting human rights abuses should invoke these provisions to pursue a “who pays” arbitration claim against the sovereign itself for contribution or indemnification.
June 11, 2007 at 2:16 pm
Posted in: International & Comparative Law
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An Insider’s Critique of the War on Terror
posted by Melissa Waters
Harvard law professor Jack Goldsmith will soon be offering up his own critical account of the Bush Administration’s post-9/11 legal justifications for the war on terror. Here’s the abstract of his forthcoming book, “The Terror Presidency: Law and Judgment Inside the Bush Administration,” courtesy of Amazon.com:
A central player’s account of the clash between the rule of law and the necessity of defending America.
Jack Goldsmith’s duty as head of the Office of Legal Counsel was to advise President Bush what he could and could not do…legally. Goldsmith took the job in October 2003 and began to review the work of his predecessors. Their opinions were the legal framework governing the conduct of the military and intelligence agencies in the war on terror, and he found many—especially those regulating the treatment and interrogation of prisoners—that were deeply flawed.
Goldsmith is a conservative lawyer who understands the imperative of averting another 9/11. But his unflinching insistence that we abide by the law put him on a collision course with powerful figures in the administration. Goldsmith’s fascinating analysis of parallel legal crises in the Lincoln and Roosevelt administrations shows why Bush’s apparent indifference to human rights has damaged his presidency and, perhaps, his standing in history.
Should make for a fascinating, and no doubt controversial, read. Thanks to Peter Spiro over at Opinio Juris for calling this to my attention.
May 29, 2007 at 11:24 am
Posted in: International & Comparative Law
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Miss America Joining America’s Most Wanted
posted by Melissa Waters
Put this one in the category of “too good for a blogger born and raised in the land of beauty pageants 
(excuse me, scholarship/talent pageants) to pass up.”
Seems Miss America has joined the ever-growing ranks of American heroes lurking in the kiddie chat rooms, catching sexual predators, and then publicly humiliating said predators on national television for our amusement. Lauren Nelson, the reigning Miss America, recently went undercover in a sting operation in which police created an online profile of her as a 14-year-old girl, complete with old photographs of her as a teenager. Said Miss America of her heroic efforts: “I got to chat online with the predators and made phone calls, too!”
Miss America’s brief stint as a crime fighter helped her to fulfill the policy “platform” –Internet safety for children – that she had offered, no doubt with tremendous enthusiasm, to pageant judges in convincing them to give her the crown. But Miss America surely went well beyond the call of duty, or the expectations of pageant officials, placing herself in the line of danger to catch these depraved men. According to an MSNBC report, Miss America arranged to meet the men at a home in Long Island. “I stood outside on the porch, and I would say, ‘Hi’ to them and wave them inside.” (No word on whether Miss America was wearing her crown at the time.) Once inside, the suspects were greeted by local police, “America’s Most Wanted” host John Walsh – and, of course, a hundred cameras recording their every move. “That part was very scary,” admitted an ever-perky Miss America, “but the police were all over the place. I was nervous, of course, but it was a very controlled environment, very safe.”
Indeed, rest assured, dear reader, that where Miss America’s safety was concerned, pageant officials were on the case. Art McMaster, president and CEO of the Miss America Organization, admitted that initially he was hesitant to allow Miss America to participate in the sting operation. But he agreed after talking with the producers of “America’s Most Wanted” – and, of course, after obtaining the consent of Miss America’s father.
Miss America reflected on her all-too-brief stint as an SVU cop with the following, appropriately cheerful verdict: “As many as we caught on that day, there are a lot more out there. It’s nice to know that they were chatting with police officers and me rather than a 14- or 15-year-old girl.”
April 25, 2007 at 4:29 pm
Posted in: Humor
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Interested in what’s hot in international law scholarship?
posted by Melissa Waters
Then check out the rising stars who have contributed to Opinio Juris’s inaugural on-line symposium for young scholars. The subject matter runs the gamut, from climate change to compliance to international criminal procedure to WMD proliferation. Authors include Jacob Cogan, Gregory Gordon, Vik Kanwar, Eugene Kontorovich, and Hari Osofsky. Senior scholars in the field serve as commentators for each of the papers.
Kudos to Opinio Juris for offering yet another important contribution to the international law blogosphere!
March 31, 2007 at 7:14 pm
Posted in: International & Comparative Law
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Is Chief Justice Roberts a Transnationalist, After All?
posted by Melissa Waters
John Parry at Lewis & Clark has put together a terrific symposium on the Supreme Court’s decision last Term in Sanchez-Llamas v. Oregon, available here. In Sanchez-Llamas, the Court considered the extent to which foreign nationals have judicially enforceable rights and remedies for violations of Article 36 of the Vienna Convention on Consular Relations. Article 36, the so-called “consular notification” provision, requires that foreign nationals arrested by the police be notified of their right to contact their country’s consulate. Sanchez-Llamas and another petitioner, Bustillo, had not been notified of their Article 36 rights upon arrest. Sanchez-Llamas argued that the appropriate remedy for the treaty violation was suppression of incriminating statements taken during his interrogation, on the ground that they had been obtained in violation of Article 36. In Bustillo’s case, the issue was whether a state could apply its procedural default rules to Article 36 violations, despite a ruling to the contrary by the International Court of Justice. Chief Justice Roberts, writing for the majority, ruled against the petitioners on both issues.
Contributors to the symposium explore a wide variety of issues raised by the Court’s decision. Julian Ku suggests that Sanchez-Llamas represents a serious setback to the “burgeoning movement” toward domestic court enforcement of international tribunal decisions. Janet Koven Levit, on the other hand, offers a “glass half full” take, arguing that “a multitude of judicial and non-judicial actors have helped entrench Vienna Convention rights over the past decade, … and the Court did little to stymie or disrupt these constitutive processes.” Peggy McGuinness offers an intriguing take on Sanchez-Llamas as part of the ongoing debate regarding American human rights exceptionalism, “and how judges—implicitly and explicitly—respond to arguments for and against exceptionalism.” Paul Stephan explores a key issue left unresolved by the Court — when a private individual may invoke a treaty provision before a U.S. court. He argues that in addressing the issue, “the Court should enlist the techniques it uses to determine when private litigants may invoke legislative enactments.”
My own contribution to the symposium argues that Sanchez-Llamas reveals the Chief Justice in a new light: Far from a knee-jerk “nationalist” with respect to judicial dialogue with foreign and international courts, Roberts instead demonstrates his transnationalist instincts, engaging in dialogue with both the domestic courts of our treaty partners, and with the ICJ itself.
March 28, 2007 at 1:50 pm
Posted in: International & Comparative Law
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Judicial Multiculti-ism Gone Awry
posted by Melissa Waters
A judge’s shockingly inept attempts at “multicultural understanding” have landed her in some very hot water in Germany. According to the New York Times, the judge cited “cultural differences” between Muslims and Westerners in refusing to grant a German Muslim woman’s request for a fast-track divorce from her wife-beating husband. The woman, a German citizen, had requested that she be allowed to divorce her husband without waiting for the one-year separation ordinarily required by law, on the ground that her husband had physically abused her and was threatening her life. (In fact, the same judge had previously ordered the husband to move out of the couple’s home and had entered a restraining order against him.)
The judge refused her request, ruling that the woman was not suffering an “unreasonable hardship” because – are you ready for this? — both she and her husband were of Moroccan descent. “In this cultural background,” she wrote, “it is not unusual that the husband uses physical punishment against the wife.” Moreover, in explaining her ruling, the judge pointed to a verse in the Koran that permits a husband to use physical punishment to “discipline” his wife. And just in case the wife was still under the misimpression that she might be entitled to at least a few of the rights that other German women enjoy, the judge delivered the final blow, suggesting that the wife’s Western lifestyle might have given her husband reason to claim that his “honor” had been sullied.
To be sure, Germany, like the rest of Western Europe, is navigating some tricky waters when it comes to reconciling Western values with the more traditional values of some members of its Muslim population. But this is ridiculous. Thankfully, the ruling has been roundly condemned by just about everyone in Germany — including German Muslim leaders, who point out that mainstream Muslims long ago rejected wife-beating “as a relic of the medieval age.” The judge has been removed from the case. But it almost – not quite — makes me re-think my firm belief (expressed in earlier posts) that we can usually trust judges to get it right.
March 22, 2007 at 11:39 pm
Posted in: International & Comparative Law
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Women Entering the Blogosphere
posted by Melissa Waters
Thanks to everyone at Concurring Opinions for the warm welcome (never mind that it was three weeks ago … February turned out to be a much busier month than I expected. Thanks to my co-bloggers for their patience!) I’m delighted to be joining CoOp as a permablogger. Over the coming months, I plan to offer posts on a wide range of issues, from the role of foreign and international law in U.S. and other domestic courts, to foreign relations law issues stemming from the war in Iraq, to rule of law and transitional justice issues in the Middle East and elsewhere. And of course, I’ll try my best to keep you all abreast of the exciting legal happenings back in my beloved home state of Arkansas (see my earlier post on the Razorbacks here).
Let me also offer my own shout out to the women over at the new IntLawGrrls blog. What an impressive group of scholars, and the posts thus far have been absolutely top notch. And I love the pseudonyms – especially Mata Hari (my good friend Hari Osofsky at University of Oregon).
It’s got me wondering, should we here at Concurring Opinions adopt pseudonyms? And if so, would our faithful readers like to offer any suggestions for pseudonyms for your favorite CoOp blogger?
March 8, 2007 at 10:46 am
Posted in: Blogging
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Parting words from Justice Scalia
posted by Melissa Waters
The time has come for me to say farewell to the CoOp community — I’ve thoroughly enjoyed my stint as a guest blogger, and hope to visit again sometime soon.
As much of my blogging over the last month has been on the controversy over the use of foreign and international law in U.S. courts (see here and here), I thought it would be appropriate in my “farewell” blog to give Justice Scalia the last word. His diatribes against foreign and international law have inspired various Congressional attempts to legislate against the practice: A Senate bill, for example, would forbid federal judges from citing “any constitution, law, administrative rule, Executive order, directive, policy, judicial decision, or any other action of any foreign state or international organization or agency, other than English constitutional and common law up to the time of the adoption of the Constitution of the United States.” So what does the Justice himself think about his Congressional fan club?
Not much, apparently. The Washington Post reports today that Justice Scalia chastised Congress for sticking its nose where it doesn’t belong. “It’s none of your business. No one is more opposed to the use of foreign law than I am, but I’m darned if I think it’s up to Congress to direct the court how to make its decisions.” The pending legislation, Scalia complained, “is like telling us not to use certain principles of logic.” And he concluded, “Let us make our little mistakes just as we let you make yours.”
As surprised as I am to find myself in agreement with him, I say, “Amen, Justice Scalia.” In my view, the jury is still out on whether it’s a “mistake” to rely on foreign and international law in constitutional interpretation — but surely this is something for our judges to decide for themselves. America is blessed with one of the strongest judiciaries in the world, and we can trust them to figure this out on their own. Congress should leave them alone and let them do their jobs.
And on that note, I’ll sign off for now. Many thanks to all those who have debated this and other issues with me over the past month. I have learned much from your comments, and look forward to continuing the dialogue in the future.
May 19, 2006 at 11:22 am
Posted in: International & Comparative Law
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No Longer A Nation of Miniature Coke Addicts?
posted by Melissa Waters
The nation’s biggest soft drink manufacturers agreed today that they will no longer sell soda (or “Coke”, for those of us lucky enough to be born Southerners) in the nation’s schools. (Read the New York Times’ account here.) (Somewhat inexplicably, it’s still okay to sell diet soda and “fitness drinks” to high school students.) The deal was brokered by the Alliance for a Healthier Generation, a joint initiative of the Clinton Foundation and the American Heart Association. President Clinton, in announcing the agreement, declared his firm conviction that the soda companies have nothing but benevolent intentions:
“This is a truly significant thing for an industry to do, not entirely free of risks on their part, not only economic risks but backlash from the consumer. … And they did it, I believe, because … they care about the future of our young people.”
Call me a cynic, but couldn’t the threat of massive class action litigation have had a little something to do with it, as well? As reported by several media outlets back in December, the Center for Science in the Public Interest had teamed up with the anti-tobacco plaintiffs’ bar to bring a series of lawsuits in state courts to force the soda companies to give up their lucrative sales contracts with the nation’s schools. Back then, the industry was reportedly “gearing up for a counterattack” – for example, publishing their own studies that purported to show that the average high school student only drinks one can of Coke per week from a school vending machine (a claim that I personally find very difficult to, um, swallow). Apparently the industry decided that a quick surrender was a better way to go.
And in related news on the Arkansawyers-who-would-be-President front (see my previous post on the subject here), Arkansas Governor Mike Huckabee is getting some of the credit for brokering the agreement – and thus some much-needed publicity in his as yet-undeclared dark-horse candidacy for the 2008 presidential election. Huckabee – now being described by the New York Times as a “leader in the movement to help stamp out childhood obesity” – has clearly found an issue to call his own, and one that fits him to a tee. (For an insightful — and amusing — look at Huckabee’s chances, check out the incomparable John Brummett’s editorial on the subject here.)
All of which has me pondering the following:
May 3, 2006 at 7:07 pm
Posted in: Consumer Protection Law
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Wanna hobnob with George Clooney this weekend?
posted by Melissa Waters
Then come join the crowds at the Save Darfur Coalition’s “Rally to Stop Genocide” on the National Mall in Washington, D.C., this Sunday, April 30. Other luminaries appearing at the event include Senator Barack Obama, Nobel Peace Prize winner Elie Wiesel, rap impresario Russell Simmons, and Paul Rusesabagina (whose story was depicted in the superb film Hotel Rwanda, which you should rush out and rent tonight if you haven’t seen it yet). The Save Darfur Coalition brings together more than 160 faith-based, human rights, and humanitarian organizations, and the list of speakers at Sunday’s event reflects the incredibly diverse, grass roots nature of this effort. Here’s the blurb from the Coalition’s website:
“The rally is part of the “Million Voices for Darfur” campaign to generate one million postcards for delivery to President Bush, who recently pledged to push for additional UN and NATO help to protect the people of Darfur. We applaud the President’s leadership, but the work is far from done. We are urging President Bush to take steps necessary to end the genocide and build a lasting peace.”
Organizers estimate that around 20,000 people will attend the rally in DC, with smaller rallies to be held in cities around the country. Even if the crowds defy expectations and number in the hundreds of thousands, they will be dwarfed by the figures coming out of Sudan itself: According to the Coalition website, in just three years, 400,000 people have died and nearly 2.5 million have been displaced.
How many political issues out there can unite Barack Obama and Sam Brownback in common cause? Kudos to both Senators, and to the many other politicians, celebrities, and ordinary folk who have put compassion and principle above partisan bickering, in an attempt to shake us all out of our apathy.
April 27, 2006 at 9:23 pm
Posted in: International & Comparative Law, Politics
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