Archive for the ‘International & Comparative Law’ Category

A Splendid Exchange

posted by Nate Oman

I just finished reading William Bernstein’s A Splendid Exchange: How Trade Shaped the World.  The goal of the book is to provide a global history of international trade from ancient times to the present.  The book doesn’t quite deliver on this promise.  For example, trade within Africa and the Americas prior to the age of discovery is almost completely ignored.  Likewise, for those who know their international economic history, the book isn’t likely to contain anything new.  Still it’s a good read, and there is something to be said for seeing huge swaths of history in a single view.

The bulk of Bernstein’s discussion focuses on the history of long distance trade between Europe and the Far East from Roman times through the nineteenth century.  He tells how this trade was dominated successively by Greeks, Arabs, Portuguese, Dutch, and finally the English.  One of the striking themes is how little there was in the West that the Chinese or Indians actually wanted.  Another theme is the often symbiotic relationship between trade and violence, most dramatically illustrated by the Opium Wars between Britain and China in the nineteenth century.

After recounting the Opium Wars, Bernstein’s focus shifts to the politics of free trade and protectionism.  Bernstein clearly believes that the free traders have the better of this argument (which, of course, is true) but he is sensitive to the way in which trade can hurt particular groups even if its benefits ultimately outweigh its costs.  He also has a good nose for stories of how protectionism has backfired in the past.  For example, in the first part of the eighteenth century English weavers rioted repeatedly, placing pressure on Parliament to exclude cheaper (and higher quality) cotton textiles from India.  Shielded from low wage Indian labor, English weavers claimed victory.  The tariff, however, also gave manufacturers and incentive to find some other way of avoiding high-wage English weavers.  The result was the mechanization of cloth production in the late eighteenth century, which ultimately displaced more high-wage weavers than the India trade ever did. Read the rest of this post »

  January 20, 2010 at 8:14 am   Posted in: Book Reviews, Contract Law & Beyond, History of Law, International & Comparative Law   Print This Post   4 Comments

Law and the Judge’s Cousin

posted by Nate Oman

There is an interesting exchange in the comments of my last post between Dan Cole,Jeff Lipshaw, and Michael Froomkin about institutions and the limits of substantive law. Dan Cole writes:

But substantive law is an intrinsic part of the institutional structure. If the quality of institutions matter, then by definition the quality of laws matter. That is a point made over and over again by Coase, North, Williamson and other economists.

Yes and no. I don’t deny that law plays a role in the quality of the institutions that resolve disputes. I also don’t deny that the overall quality of dispute resolving institutions is effected by the substantive law that the institutions apply. On the other hand, legal institutions are the result of much more than either the legal rules that define their workings or the legal rules that they apply. They are also the result of things like allocation of resources and informal social practices.

I was once at a panel that brought this point home forcefully. It was on comparativecommercial law and that perennial chestnut, which is better the common law or the civil law.  The partisans of the common law were laboring hard to establish the virtues of its flexibility and respect for freedom of contract.   (I’ve labored over these virtues myself on occasion.)  At this point, a long-time commercial practitioner on the panel interjected remarks to this effect:

At the margins, I suppose that the common law is slightly more friendly to commercial innovation than is the civil law. When I go to a civil law jurisdiction I often learn that there are certain transactions I simply can’t run or are more complicated to structure. On the other hand, when I am assessing the economic prospects in any particular country, my main question isn’t “Is this a civil law or a common law jurisdiction?” Rather, my main question is whether or not the fact that the lawyer on the other said is the judge’s cousin will effect the outcome of the case.

That is what I mean when I say that institutions matter more than substantive law.

  January 13, 2010 at 8:37 am   Posted in: Contract Law & Beyond, Culture, Economic Analysis of Law, International & Comparative Law, Jurisprudence   Print This Post   2 Comments

The Yale Law Journal, Vol. 119, Issue 3 (December 2009)

posted by Yale Law Journal

  January 12, 2010 at 9:48 pm   Posted in: Constitutional Law, Immigration, International & Comparative Law, Law Rev (Yale), Law Rev Contents, Property Law, Tax   Print This Post   No Comments

Run, Don’t Walk, To Your Nearest Bookstore …

posted by Jeffrey Kahn

Should the fate of Umar Farouk Abdulmutallab, who tried to blow up a plane over Detroit on Christmas Day, be decided by the United States military or by a federal court?  If only an Article III court could try him, does that mean that only the FBI can question him, subject to all his constitutional protections (including his right to remain silent)?  Or should he have been turned over to military interrogators immediately, as former federal judge and Attorney General Michael Mukasey suggested last week: “[h]olding Abdulmutallab for a time in military custody, regardless of where he is ultimately to be charged, would have been entirely lawful” (What Does the Detroit Bomber Know? Wall St. J. 1/16/10).

Resolving these questions isn’t easy, and certainly isn’t merely a policy choice.  Several panels at the AALS Conference in New Orleans last week were devoted to national security issues.  But more than once, I heard the leading experts in the country disagree on how to resolve this fundamental question: when must captured, suspected terrorists be tried in our criminal justice system and when should the laws of war, a.k.a. international humanitarian law (IHL) apply?

Needless to say, an understanding of the laws of war/IHL helps untangle this challenge.  But how many of us had such a course in law school?  A chance encounter with the subject in practice?  Fortunately, the best new book you can read on the subject has just been published by Oxford University Press: The War on Terror and the Laws of War: A Military Perspective.  (Full disclosure: I received a complimentary review copy.)  You can peak inside the cover at the table of contents and read reviews at its Amazon.com page.

Here are three reasons why you should have this book on your shelf:

(1)  The authors.  Geoff Corn, Eric Jensen, James Schoettler, Dick Jackson, Victor Hansen and Michael Lewis have over a century of collective experience in the United States Army and United States Navy working on the very issues they analyze.  They have been prosecutors and defense counsel, legal advisors and strike planners.  They have also been combatants themselves.  Rarely does one get the chance to read a careful, academic analysis written from the vantage point of scholars with such extensive experience with so many different facets of the subject of their study.

(2)  The subjects.  This book covers the gamut of critically important topics: the choice of law, targeting, detention, interrogation, war crimes liability, command responsibility, and the difficulty inherent in translating legal principles into on-the-ground practice.  The perspective is future oriented but also offers insights on the legal decisions and policy choices of previous administrations.  All that, under one cover, is hard to find.

(3)  The presentation.  Civilians can read this book!  It is pleasantly free of jargon, thoroughly footnoted (with both references to primary sources and useful commentary on secondary debates), and judiciously edited.  There is also a valuable thread of debate on several issues that can be traced through the authors’ contributions.  They don’t always agree themselves on all points.  This provides a further source of confidence in the thoughtful and lawyerly quality of their views, regardless of whether one agrees with them.

  January 12, 2010 at 10:34 am   Posted in: Civil Rights, Constitutional Law, International & Comparative Law, Uncategorized   Print This Post   One Comment

Asking new questions or at least hoping for more useful answers

posted by Kristin Johnson

From 1933 to 1934, Senator Ferdinand Pecora, the senior lawyer for the Senate Banking Committee, led an examination into securities market abuses that inspired the regulatory framework set out in the Securities Act of 1933 and the Securities Exchange Act of 1934.  The legislation noted the predatory practices that motivated its consideration and adoption:

“Alluring promises of easy wealth…freely made with little or no attempt to bring to investor’s attention those facts essential to estimating the worth of any security. High pressure salesmanship rather than careful counsel was the rule in this most dangerous enterprise.” H.R. Rep. No. 85, 73d Cong., 1^st Sess. 2 (1933).

More than seventy years later, as the Financial Crisis Inquiry Commission begins to hold hearings to unravel the causes of the recent financial crisis, Congress again takes up the task of addressing the accuracy of disclosure regarding valuation of complex financial instruments sold to the public (pension funds and other institutional investors). Throughout the hearings, we can anticipate accusations of greed and retorts equating greater federal government intervention with paternalism. As regulators, independent experts and senior management of the largest financial services firms arrive in Washington DC, however, we should take this opportunity to consider carefully the broader weaknesses in the structure and substance of federal securities market regulation.

The testimony solicited publicly and privately prior to the commission’s inaugural meeting suggests that disclosure will present a critical point of departure for inquiries about the recent crisis. For example, Congress is likely to challenge the practices of banks that sold clients financially engineered products like collateralized debt obligations which involve the sale of interests in bundles of residential and commercial mortgages. While the same banks encouraged credit rating agencies to assign strong, positive ratings to these products to increase revenues, they contemporaneously entered into short position contracts on these investments which rewarded the banks when the CDOs declined in value.

While important, questions or legislation focused exclusively on increasing the quality and quantity of disclosure are myopic and solutions arising out of this approach will prove insufficient to address broader market concerns. Questions or legislation should also address financial innovation or the development of new financial products or uses of products or processes not previously available and the ethical obligations of the firms that develop and distribute these products, the fragmentation among securities market regulators and the absence of consistent, effective inter-agency collaboration and the influence of international economic interdependence and regulatory competition on the development of U.S. regulation and the regulation in foreign jurisdictions. As often is the case in the securities regulation debates, there are many challenging questions and far too few effective answers.

  January 12, 2010 at 10:24 am   Posted in: Consumer Protection Law, Corporate Finance, Corporate Law, History of Law, International & Comparative Law, Securities, Securities Regulation   Print This Post   4 Comments

The Month Ahead: War, Rights, Travel

posted by Jeffrey Kahn

Sometimes opportunity just comes knocking at your door.  That’s sure how it felt when Danielle invited me to be a guest at Concurring Opinions this month.  But I never imagined that, on my first day as a guest blogger, opportunity would come knocking again, this time with the blogging equivalent of a welcome basket.

That’s how it felt to read Michael Kinsley’s op-ed in the New York Times last night as I contemplated my first post (What’s Our Line? N.Y. Times, 1/5/10 at A21 NY edition).  His eight-paragraph pitch to stay true to America’s first principles of justice (at least, as he sees them) seemed a custom-made opportunity to lay out my blogging agenda for the month.  Kinsley’s essay was a great little read for me not because of his too broad conclusion (“We have nothing to be ashamed of, little to fear and much to be proud of in choosing to err on the side of treating captured foreign terrorists as we would treat any upstanding American who tried to blow up an airplane full of people.”), but mainly for the odd path he took to reach it.  It was opportunity knocking again because he teed up several issues that interest me.  (A mixed metaphor there?  Nevermind, that train has sailed.)

Three issues jumped out in particular:

Read the rest of this post »

  January 6, 2010 at 9:20 am   Posted in: Civil Rights, Constitutional Law, International & Comparative Law, Uncategorized   Print This Post   One Comment

The Yale Law Journal Vol. 119, Issue 2 (2009)

posted by Yale Law Journal

Article
	Presidential Power over International Law: Restoring the Balance Oona A. Hathaway	140
Notes
	Disastrously Misunderstood: Judicial Deference in the Japanese-American Cases Jonathan M. Justl	270
	Created in Its Image: The Race Analogy, Gay Identity, and Gay Litigation in the 1950s-1970s Craig J. Konnoth	316
Comment
	A Case for Varying Interpretive Deference at the State Level	373

  December 7, 2009 at 8:29 am   Posted in: Administrative Law, Feminism and Gender, International & Comparative Law, Law Rev (Yale), Law Rev Contents   Print This Post   No Comments

Integration through contract?

posted by Jaya Ramji-Nogales

Though European states have received increasing numbers of immigrants over the past few decades, they have failed to integrate these immigrants as successfully as traditional immigrant-receiving nations such as the United States and Canada.  There are undoubtedly many factors that contribute to this differential in integration success rates, but access to education and employment may be the most important.  Examining these measures, a recent OECD report found that the children of migrants living in Europe have significantly worse education and labor market outcomes than the children of migrants in the United States, Canada, Australia, and New Zealand.

So what then should we make of German Immigration Commissioner Maria Boehmer’s proposal to address Germany’s integration problem through contracts?   Expected to be introduced during the current legislative period, these contracts will explain the services and assistance available to immigrants while requiring immigrants to learn German and avow their support for liberal values such as freedom of expression and equality of women.  Dr.  Boehmer acknowledges that the key to integrating immigrants is access to schooling and employment markets (the latter through recognition of qualifications from abroad). Read the rest of this post »

  November 24, 2009 at 8:22 pm   Posted in: Contract Law & Beyond, Immigration, International & Comparative Law   Print This Post   One Comment

The War is Over But What Impact Will the Restatement of Employment Law Have?

posted by Michael Zimmer

When, a number of years ago, the Council and the Director of the American Law Institute announced that the Institute was undertaking a project in the area of labor and employment law, it followed its long tradition of deciding the project’s subject, its type and who would be the Reporters without input from the membership at large. That the topic was employment law was not a surprise. After all, Lance Liebman, the ALI’s Director, is a well known teacher and scholar of employment law. The nature of the project, a Restatement, was, however, somewhat of a surprise. Restatement projects look to the common law in a particular area. A problem with a Restatement of the common law of employment is that the common law plays a small role in a large, ungainly, some would say, disorganized jumble of state and federal laws, statutes and common law covering a wide range of issues that bear on employment. There is little apparent coherence to it. So, in the admittedly small world of labor and employment academics, it was no surprise that the idea of a Restatement provoked widespread protest. Some feared that a Restatement of Employment Law would “cement” in place law that was woefully inadequate for present much less future times. For some, that fear was exacerbated by the choice of the Reporters and the initial Advisory Group. I liked the idea of an ALI project but, given the mishmash that is labor and employment law, hoped for a Principles project to develop a policy basis that could be used to develop a coherent body of labor and employment law.

In face of the protests, the project moved slowly at first as some Reporters left and others joined the project. Once three chapters had been completed and approved by the ALI Council, the opposition got organized to try to stop those chapters, and indeed the whole project, from proceeding any further. Many of those opposed undertook the unusual move toorganize and hold a well- attended meeting at Hastings to present and to develop critiques that argued that the Restatement project should be abandoned. The work of 18 employment law academics was presented at the meeting. The results of that meeting and the critiques prepared for it were sent to all ALI members for their consideration before last May’s annual meeting that had the first three chapters on the agenda for adoption. The critiques were also published in a special issue, volume 13, issue #1 of the Employment Rights and Employment Policy Journal, http://www.kentlaw.edu/ilw/erepj/abstracts/v13n1/index.html.

Given the heated nature the whole issue had become, it should be no surprise that the dispute became personal. The lines were drawn with the ALI on one side and the Labor Law Group on the other. While the debate at the ALI meeting this past May was heated, the membership, as it generally does, accepted the recommendation of the Council and approved the first three chapters more or less intact. Read the rest of this post »

  November 11, 2009 at 9:09 pm   Posted in: Civil Rights, Employment Law, International & Comparative Law, Uncategorized   Print This Post   No Comments

Shame on the Brits!

posted by Nate Oman

By temperament, I am not a particularly passionate person. Every so often, however, the world throws up an event of such mindless horror that even phlegmatic me is roused to ire. Chris Lund points out such a horror in this post over at Prawfs. All I can say is, “What the hell are their Lordships thinking over at the new Supreme Court of the United Kingdom?” Shame! Shame on you! Read the rest of this post »

  October 22, 2009 at 7:50 am   Posted in: History of Law, International & Comparative Law, Jurisprudence, Just for Fun, Law Practice, Politics, Weird   Print This Post   2 Comments

Article on Free Speech and Terrorism

posted by Gerard Magliocca

I want to draw your attention to a paper by my colleague Shawn Boyne that examines the tension between free speech values and counterterrorism efforts.  Shawn is doing some terrific work on comparative criminal law issues.  Here is the Abstract:

Since the 9/11 attacks in 2001, the United States and many European states have sought ways to disrupt the radicalization process that leads individuals to join the call to Islamic jihad. This strategy has included attempts to prosecute individuals who post or help to circulate calls to jihad that appear on the internet. While this speech is unpopular, it is an open question whether the speech, standing alone, incites violence. More importantly, these prosecutions may both chill speech and open the door to wider governmental efforts to regulate unpopular speech. To explore the tension between security and civil liberties triggered by such strategies, I analyze three recent criminal cases in Germany, the United Kingdom, and the United States. I examine the prosecution strategies and the legal hurdles that prosecutors faced in securing convictions. I show that, in an effort to surmount the legal problems inherent in prosecuting these cases, prosecutors have broadly branded the defendants as terrorists and evil-doers. The broader impact of these strategies, risks shaking a core element of democratic governance.

  August 11, 2009 at 2:34 pm   Posted in: International & Comparative Law   Print This Post   No Comments

BRIGHT IDEAS: Susan Brewer on Why America Fights: Patriotism and War Propaganda from the Philippines to Iraq

posted by Deven Desai

Today’s Bright Ideas post comes from Professor Susan Brewer. Professor Brewer teaches history at the University of Wisconsin-Stevens Point. She is the author of To Win the Peace: British Propaganda in the United States during World War II. Today she shares how she the ideas behind and how she came to write her latest book, Why America Fights: Patriotism and War Propaganda from the Philippines to Iraq. As someone who loves history and studies of the way media is used to shape agendas, this books looks like a winner. But I’ll let Professor Brewer explain more on that.

PROFESSOR SUSAN BREWER

on

Why America Fights: Patriotism and War Propaganda from the Philippines to Iraq

Why America Fights explores the packaging and sale of war aims by the U.S. government to the American people over the past century. It analyzes propaganda in six wars—the Philippine War, World War I, World War II, the Korean War, the Vietnam War, and the Iraq War—intended to rally public support by showing Americans that they fight for democracy, freedom, security, and economic opportunity. Such messages from “to make the world safe for democracy” to “protect the American way of life,” assure the public that their ideals and interests are one and the same.

I had the idea for this project while I was working on my first book, To Win the Peace: British Propaganda in the United States during World War II (1997). It examines the British government’s careful efforts to construct a lasting “special relationship” with the United States when it recognized that only its wealthy ally had the power to help the depleted British Empire through postwar recovery. Propagandists analyzed U.S. political culture to determine the best way to win American hearts and minds. For example, to overcome what they called the “ancient grudge” held by Americans against the British Empire, British officials sought to link the empire with America’s epic frontier past so popular in films and novels. They called their theme “white men in tough places.” Although officials acknowledged the racist nature of such a message, they thought it would encourage white Americans to identify with the colonizer rather than the colonized. Besides they knew that most African Americans were not allowed to vote. Intrigued by the way in which British policymakers defined their interests and constructed appealing messages to promote them to the American public, I wondered about U.S. government efforts to do the same.

My research also was influenced by the George H. W. Bush administration’s presentation of the Persian Gulf War of 1991. I observed how the administration used explicit and implicit references to past wars to justify the current one: the comparison of Iraqi leader Saddam Hussein to Adolf Hitler; the story of the invading Iraqi troops pulling the plugs on incubators holding Kuwaiti babies, later discredited, which recalled World War I propaganda showing the invading Germans bayoneting the babies of Belgium, also later discredited; and the steady assurance that the Persian Gulf War would not be another Vietnam. These themes, I thought, had a lot to do with popular history and culture and not so much to do with U.S. foreign policy in the Middle East. I wanted to investigate just what government officials have chosen to tell and not to tell when convincing the American people to support war.

To see how various administrations defined their war aims and then how they decided to present them to the public, I conducted research at the National Archives, the Library of Congress, and the presidential libraries. I analyzed the resulting messages as delivered through speeches, posters, movies, radio shows, television appearances, magazine ads, and news stories. What I found was that to promote war aims dedicated to defeating the enemy and expanding U.S. power, propaganda portrayed Americans as liberators, protecting civilization and advancing progress. “To make the world a decent place to live in,” declared a World War I poster. In this case, as in others, the world failed to live up to its projected image, leaving Americans feeling disillusioned about their intervention in the Great War. One of the goals of official propaganda in World War II would be to restore public confidence in America’s global mission and build a consensus in favor of ongoing U.S. commitments overseas.

From war to war, propaganda revived the portrayal of the United States as a just and benevolent nation using its power to create a better world. In doing so, it typically focused attention on American cultural beliefs rather than global realities, presenting idealized versions of the United States and its allies while dehumanizing the enemy. It sought to win over the American people by appealing to what they wanted to believe about themselves. I hope that readers of Why America Fights will consider why these official constructions of wartime national identity remain so compelling.

  August 10, 2009 at 2:31 pm  Tags: history, propaganda, Susan Brewer, war  Posted in: Bright Ideas, Constitutional Law, International & Comparative Law, Politics   Print This Post   No Comments

New Empirical Work on International Criminal Law

posted by Jenia Turner

Máximo Langer and Joseph W. Doherty at UCLA have just posted Managerial Judging, Court’s Limited Information and Parties’ Resistance: An Empirical Assessment of Why the Reforms to Expedite Procedure of the International Criminal Tribunal for the Former Yugoslavia Did Not Work. It’s an excellent piece and a rare example of empirical work in international criminal law. Its findings show the valuable contributions that empirical studies could make to the field.

Langer and Doherty examine whether procedural reforms at the International Criminal Tribunal for the former Yugoslavia (ICTY), which were introduced to expedite the tribunal’s proceedings, were in fact successful. The study finds that these so-called “managerial judging” reforms-e.g., introducing pretrial judges, mandating pretrial conferences, asking the parties to exchange information about their cases earlier in the process, encouraging them to reach agreements on facts and legal issues, and reducing the number of witnesses-failed to accomplish their intended purposes. In fact, many of these reforms lengthened the proceedings.

The study controlled for a number of variables that could explain the result (e.g., specific case characteristics, court capacity, and guilty pleas). So why might the reforms have failed? The main reason seems to be that the new managerial tools were not used frequently enough. Moreover, the tools that were used added procedural steps that took up time, without reducing other procedures to make up for the added time.

Read the rest of this post »

  July 26, 2009 at 7:49 am  Tags: Criminal Procedure, Empirical analysis, ICTY, international criminal law, managerial judging  Posted in: Criminal Procedure, Empirical Analysis of Law, International & Comparative Law   Print This Post   No Comments

German Bundestag Passes Plea Bargaining Law

posted by Jenia Turner

Germany was once known as a “land without plea bargaining.” Those days are now long gone.

On May 28, the German Bundestag passed a law amending the German Code of Criminal Procedure to regulate plea bargaining. The legislation ratifies a practice that developed informally more than two decades ago. As bargaining became more common in the late 1980s and 1990s, courts intervened to set broad requirements for the practice. The recent legislation largely codifies these requirements. But there are also some important departures and other provisions that are interesting from a comparative perspective.

Read the rest of this post »

  July 16, 2009 at 9:30 am  Tags: German Criminal Procedure Code, Germany, plea bargaining  Posted in: Criminal Procedure, International & Comparative Law   Print This Post   2 Comments

How Far Can Lawyers Go in Criticizing the Court? An International Perspective

posted by Jenia Turner

At the end of May, the Extraordinary Chambers in the Courts of Cambodia (ECCC), a hybrid court composed of national and international judges, issued a warning to a defense lawyer for offending the court and obstructing the proceedings. The lawyer was Jacques Verges, a French attorney who has made a career of representing notorious clients and taking on politically charged cases. At the ECCC, he represents Khieu Samphan, Cambodia’s former Head of State, who is accused of committing crimes against humanity and war crimes during the horrific era of the Khmer Rouge. Verges was reprimanded for using delay tactics and implying that the court’s judges are corrupt. The decision raises the question of how far an attorney may go in raising questions about the integrity of an international court.

Verges made the remarks during a pretrial hearing concerning his client’s request for release from detention. During the hearing, which the court had postponed twice to accommodate Verges’s schedule, Verges made no comments on the merits of the motion, but instead hinted at the possibility of the tribunal’s corruption: 

…Firstly, I shall be silent because it is not for me to be more concerned about your honour than you yourselves are. If you consider that corruption should not be discussed, I am not going to force the discussion on you. I shall be silent because I understand your caution in this regard and I think that the presumption of innocence that you sometimes deny the accused may be of some benefit to you. And I shall be silent because the Head of State which hosts you has stated publicly that he wishes you to leave, making of you, in a moral sense, squatters. I shall be silent also because a member of the Government of the country that hosts you stated that you were obsessed only by money, thus confirming the charge-be it grounded or not-of corruption, which blights the tribunal.

In response, the court warned Verges that if he continued along these lines, he would be sanctioned. The court also forwarded a copy of the warning to the Cambodian and French bars.

What makes the situation at the ECCC complicated is that there have been numerous allegations of corruption involving ECCC court staff. These allegations have come from inside staff members, human rights NGOs, and the UN itself, whose Office of Internal Oversight Services investigated allegations of corruption and delivered a report to the Cambodian government implicating specific individuals (the Cambodian government has not revealed or followed up on this report). Both defense attorneys and victims’ attorneys have called on the court to investigate the question further. So far, the allegations focus on kickbacks that ECCC staff members may have paid to Cambodian officials in return for their positions at the court. The allegations appear to implicate only the Cambodian staff and not any of the judges. But motions by other ECCC defense teams have argued that even corruption among court staff could affect the fairness of the trial. As one motion states: “if staff members entrusted with sensitive tasks are willing to engage in graft, those individuals may be equally willing to follow improper instructions, such as the manipulation of evidence to support a preordained political outcome.”

Verges’s comments to the court might be read to stop short of any direct accusation of the judges, but they certainly hint at the possibility of improper motives. Perhaps more relevant for purposes of the warning is that his comments were raised during a hearing on a motion to release his client from detention, distracted from the merits of the motion, and did not appear to be reasonably calculated to advance the legal interests of his client. Trying accused war criminals from the terrible era of the Khmer Rouge remains the ECCC’s primary business. As long as this mandate remains, the ECCC judges cannot allow the trial of every defendant, and every related motion, to be turned into an argument about the court’s own separate problems. ECCC judges were therefore correct to warn him that they would be prepared to take more serious measures to ensure orderly and speedy proceedings.

Still, while Verges’s statements may have justified the warning in this case, the ECCC should be cautious in reprimanding lawyers simply for raising the question of corruption at the court. The issue is too important to the court’s legitimacy, as some of the international judges themselves have acknowledged. It would be unfortunate if the only measure that the court takes in response to allegations of corruption is to reprimand defense attorneys for raising the issue.

  July 9, 2009 at 10:43 am  Tags: corruption, Extraordinary Chambers in the Courts of Cambodia, Jacques Verges, Legal Ethics  Posted in: International & Comparative Law, Legal Ethics   Print This Post   2 Comments

Truthseeking and Criminal Procedure in the Supreme Court’s Last Term

posted by Jenia Turner

Many thanks to Concurring Opinions and Dan Solove for inviting me to guest blog and to Dan for the kind introduction. I look forward to the visit and am excited to be part of C.O.’s talented and diverse group of bloggers.

As the Supreme Court’s term has just ended, I could not help but comment briefly on some of the Court’s pronouncements on criminal procedure. Because of my interest in comparative criminal procedure, I was curious to observe how in several recent opinions (Herring v. United States; Montejo v. Louisiana; Kansas v. Ventris), the Court suggested that “truthseeking” was a central concern of our criminal justice system and may trump individual liberties in certain cases. Specifically, the Court construed the Sixth Amendment right to counsel and the Fourth Amendment’s exclusionary rule more narrowly than before, out of concern that these individual rights and remedies interfere with the goal of truthseeking. For those familiar with the “inquisitorial” systems of continental Europe, the focus on truthseeking would sound familiar. European courts have long emphasized the preeminence of the search for truth in the criminal process. But is the adversarial American criminal justice system moving toward a new understanding of its goals, similar to that prevalent in inquisitorial systems? Are we moving away from our entrenched “anti-inquisitorialism“?

One of the latest decisions of the term suggests that truthseeking does not always win the battle. In D.A.’s Office v. Osborne (a 5 to 4 decision), the Court denied the existence of a due process right to DNA evidence after conviction. In that case, the State of Alaska conceded that there was no reason to doubt that the retesting of the evidence requested by Osborne would conclusively establish his guilt or innocence. If Obsorne were to be proven innocent, the retesting could also help determine the true offender.

The only reason given by Alaska for denying Osborne access to the DNA evidence was that it would interfere with the state’s interest in finality. The Court’s majority agreed and also declared its reluctance to interfere with Alaska’s decision by creating a federal constitutional right to access DNA after conviction. The Court acknowledged that 47 states and the federal government already provide for such access. It was interesting to note that both the majority and the minority made this point in favor of their position-the majority as a reason to defer to local democratic processes which are already addressing the question, and the minority to show that a consensus has emerged that post-conviction DNA access is part of our shared understanding of fundamental fairness.

In the end, for five justices, truthseeking was outweighed by the interest in finality of judgments and deference to states. If the 2008-09 term is any indication, the Court seems inclined to elevate the position of truthseeking relative to individual rights. But the Court is willing to let it take a back seat when it believes that it too severely threatens state prerogatives or the efficiency of the criminal justice system.

  July 2, 2009 at 7:55 pm  Tags: Osborne and DNA  Posted in: Criminal Procedure, International & Comparative Law, Supreme Court, Uncategorized   Print This Post   8 Comments

Criminalizing Matchmaking: Mail Order Marriage Laws

posted by Solangel Maldonado

During his recent appearance on the Late Show with David Letterman, actor Alec Baldwin, who has been involved in a bitter custody dispute with his ex-wife for years, offended many people when he said that he would love to have more children and was “thinking about getting a Filipino mail-order bride.”  Mr. Baldwin has since apologized for the insensitive comment and admitted that “such anger and frustration about the issue of sex trafficking is understandable.”   Admittedly, some mail order marriages are the result of sex trafficking, but does this mean that countries should criminalize the mail order marriage industry as the Philippines has done?

The Philippines has two statutes addressing mail order marriages.  Republic Act No. 6955, enacted in 1990, makes it a crime for any person to ”carry on a business which has its purpose the matching of Filipino women for marriage to foreign nationals either on a mail-order basis or through personal introduction.”  The penalty for violation of the Act is a minimum six years imprisonment.  In addition, if the offender is a foreigner, he will be deported (after serving his sentence) and permanently banned from Philippines.

In 2003, the Philippines enacted the Anti-Trafficking in Persons Act,which, among other things, makes it illegal “To introduce or match for money, profit, or material, economic or other consideration . . . any Filipino woman to a foreign national, for marriage for the purpose of acquiring, buying, offering, selling or trading him/her to engage in prostitution, pornography, sexual exploitation, forced labor, slavery, involuntary servitude or debt bondage.”   The penalty for violation of the Anti-Trafficking Act is 20 years imprisonment and a minimum fine of one million pesos.

Despite these laws, the mail order bride industry continues to flourish.  Experts estimate that one-third to one-half of all foreign fiancees who enter the United States each year met their American husbands-to-be through an international marriage broker.  A large majority of the women come from Southeast Asian countries, including the Philippines, and the law has had little effect on international marriage brokers who do a lot of their advertising and matching online.  Although the United States also has laws regulating the mail order bride industry, some commentators argue that these marriages exacerbate gender, race, and class inequalities and thus, the United States should follow the Philippines’ approach.  Thoughts?

  June 10, 2009 at 8:35 am   Posted in: Family Law, International & Comparative Law   Print This Post   11 Comments

Twenty Years Later

posted by Gerard Magliocca

This is the twentieth anniversary of the Tiananmen Square Massacre.  As the Co-Director of IU-Indy’s China Summer Program, I’ve spent quite a bit of time in China over the last seven years.  I am not a China expert, but I do know more about legal reform there than the average bear. So I thought I would try to provide some perspective on where things stand.

It is fair to say that individual freedom has increased for the average citizen so long as they are:  (1) Han Chinese; (2) not that religious; (3) not interested in joining the Falun Gong or any other civil organization that rivals the Communist Party; and (4) not a lawyer bringing cases against state action.  

Read the rest of this post »

  June 4, 2009 at 1:13 pm   Posted in: International & Comparative Law   Print This Post   2 Comments

Indicating Gender — Status

posted by Naomi Cahn

This post is prompted by Jaya Ramji-Nogales’s discussion of the recent OECD Social Institutions and Gender Index. In her very thoughtful post – with which I entirely agree — she discusses the problems of “empirically measuring and ranking intangible phenomena such as social norms,” And she notes that the OECD publication was not entirely successful.But at least it tried.

In conjunction with a recent conference on state security in Norway, I examined six reports on state weakness to determine their approach to the use of gender equality as an indicator of state fragility or failure. These six reports were issued between 2005-2008 by highly influential U.S. foreign policy institutions, including private and public agencies, and one of them was co-authored by Susan Rice (before she became our Ambassador to the UN). While measures of gender equity are included in other assessments, such as the OECD’s index, the UNDP’s Human Development Report , or Freedom House’s evaluation of global freedom, this simply shows the integration of gender into development or civil liberties markers; these assessments are not self-conscious analyses of state security and fragility, unlike the 6 reports I examined. Apart from the USAID report, the other 5 reports did not use gender as an assessment tool.

Indicators and assessment tools can be important components in establishing state policies and practices towards developing countries. Consequently, the components that comprise each of these evaluative efforts are signs of what is considered critical to ensuring state stability. Donor agencies are increasingly using various indicators to help them evaluate country performance in order to ensure that their resources will be used most efficiently and effectively. While indicators are imperfect – they are subject to errors in measurement, and they take thin slices of complex issues — they are useful, within these limitations, for providing broad-brush pictures of a country’s status. But not if they don’t include gender at all. Gender equity provides a useful measurement of state security, as Fionnuala Ni Aolain, Dina Haynes, and I argue in our forthcoming book. Nonetheless, its significance is virtually unrecognized in numerous evaluations of state fragility, thereby leading to the risk that gender will remain unrecognized in efforts to promote state stability.

  May 23, 2009 at 7:10 pm  Tags: gender, state fragility  Posted in: Feminism and Gender, International & Comparative Law   Print This Post   One Comment

Pirates in International Law

posted by Dave Hoffman

Over at Opinio Juris, Duncan Hollis has a must read post.

  April 22, 2009 at 4:14 pm   Posted in: International & Comparative Law   Print This Post   2 Comments

• « Older Entries