Archive for the ‘International & Comparative Law’ Category
Frum/Greenwald on International Law
posted by Dave Hoffman
On Bloggingheads, David Frum and Glenn Greenwald talked about the role of law in mediating international relations (sparked by the OBL killing). I thought it was pretty decent stuff. You might too:
May 6, 2011 at 2:16 pm
Posted in: International & Comparative Law
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Thoughts on an Earthquake: Narratives and Governance
posted by Andrew Sutter
[Attorney and journalist Andrew J. Sutter is the only foreign member of the Iwate Prefecture Bar Association. He lives most of the year in central Tokyo. We've invited him to give his perspective on recent events in Japan. --FP]
There’s been a joke making the rounds of Tokyo during the past week or so: The government announces in the morning that there could be a sudden blackout sometime by early evening, since power capacity is down and the demand is already very near to capacity. In America, the blackout happens, and stores get looted. In China, the blackout happens and no one notices, since they’re already a common occurrence. In France the blackout happens, and people start to make love. In Germany the blackout happens, and no one cares, because everyone has solar power. In Japan, millions of Japanese conscientiously reduce power consumption, so the blackout is avoided – and then people are pissed off because the blackout didn’t happen as announced.
Aside from showing the gentleness of the Japanese sense of satire, it’s a true story, based on events in Tokyo exactly one week after the Touhoku (northeastern Japan) earthquake. The joke arrived on my wife’s cell phone about an hour or two after officials rescinded the warning.
The joke also shows a certain trust in the government and in the reliability of its pronouncements. More about this below the fold.
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March 28, 2011 at 9:05 pm
Posted in: International & Comparative Law, Law and Humanities
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The Other Bush Doctrine
posted by David Gray
As someone who thinks and writes about transitional justice issues, I have been far more interested in recent events in Sudan than those in Tunisia, Egypt, Libya, Yemen, Bahrain, Saudi Arabia, and Jordan (more on this in later posts), but that doesn’t mean I have not been watching in wonder and admiration the events unfolding in North Africa and the Middle East. I think we all have; and those are easy intellectual emotions to justify. What I have been more conflicted about is whether it is also appropriate for us to feel a bit of pride. I think it is, but not for the reasons many conservatives have been trumpeting.
More after the jump.
March 4, 2011 at 7:02 pm
Posted in: International & Comparative Law, Politics
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UCLA Law Review Vol. 58, Issue 3 (February 2011)
posted by UCLA Law Review
Volume 58, Issue 3 (February 2011)
Articles
| Good Faith and Law Evasion | Samuel W. Buell | 611 |
| Making Sovereigns Indispensable: Pimentel and the Evolution of Rule 19 | Katherine Florey | 667 |
| The Need for a Research Culture in the Forensic Sciences | Jennifer L. Mnookin et al. | 725 |
| Commentary on The Need for a Research Culture in the Forensic Sciences | Joseph P. Bono | 781 |
| Commentary on The Need for a Research Culture in the Forensic Sciences | Judge Nancy Gertner | 789 |
| Commentary on The Need for a Research Culture in the Forensic Sciences | Pierre Margot | 795 |
Comments
| What’s Your Position? Amending the Bankruptcy Disclosure Rules to Keep Pace With Financial Innovation | Samuel M. Kidder | 803 |
| Defendant Class Actions and Patent Infringement Litigation | Matthew K. K. Sumida | 843 |
February 25, 2011 at 1:19 pm
Posted in: Bankruptcy, Civil Procedure, Constitutional Law, Courts, Criminal Law, Criminal Procedure, Current Events, Economic Analysis of Law, Empirical Analysis of Law, Evidence Law, History of Law, Indian Law, Intellectual Property, International & Comparative Law, Jurisprudence, Law and Humanities, Law and Inequality, Law and Psychology, Law Practice, Law Rev (UCLA), Psychology and Behavior, Race, Sociology of Law, Supreme Court
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Gray on Extraordinary Justice
posted by Danielle Citron
My colleague David Gray has a terrific piece Extraordinary Justice, which is now out in volume 62 of the Alabama Law Review. Luckily, Professor Gray will be coming back as a guest blogger next month, more on that soon. Here is the article’s abstract:
This article is squarely opposed to views advanced by Eric Posner, Adrian Vermeule, and others that transitional justice is just a special case of “Ordinary Justice.” Paying special attention to debates about reparations, this article argues that transitional justice is extraordinary, reflecting the source and nature of atrocities perpetrated under an abusive regime, and focused on the challenges and goals that define transitions to democracy. In particular, this Article argues that transitional justice is not profane, preservative, and retrospective, but, rather, Janus-faced, liminal, and transformative.
The literature on reparations in transitions is divided between critics who regard reparations as quasi-tort awards that violate basic commitments to individual fairness and those who appeal to collective responsibility, atonement, or reconciliation as special transitional justice theories. These debates have not reached a persuasive resolution because both camps fail to recognize and take full normative account of the extraordinary conditions in abusive regimes. What distinguishes pre-transitional abuses from ordinary crime is the role played by an abusive paradigm. An abusive paradigm is a combination of social norms, law, and institutional practice that utilizes a bi-polar logic to justify targeted violence. Abusive paradigms gain authority after the collapse of dynamic stability – the overlapping network of associations and oppositions that restricts violence and violent impulses in stable regimes. Once dominant, abusive paradigms rationalize and enforce a pathological status inequality that excludes those in an oppressed group from cross-secting identities, allowing abusers to regard them as appropriate targets for exclusion and abuse.
The primary task in transition is to seize the liminal moment between an abusive past and a future committed to human rights, democracy, and the rule of law in order to achieve some level of parity between victims and abusers, in part by creating or reconstituting the network of overlapping identities reflective of a dynamically stable society. Reparations and other transitional justice tools, liberated from the constraints of ordinary justice models, have a role to play in this extraordinary endeavor as sites for what Rosa Ehrenreich Brooks has called “effective norm change.” For example, symbolic reparations can provide official recognition of victims. Material reparations can provide former victims with meaningful access to spheres of public and private life once denied to them as a consequence of their status. Treating reparations as part of the extraordinary endeavor of social transformation also provides ready responses to common objections, including those prominent in debates about historical reparations.
February 25, 2011 at 7:39 am
Posted in: International & Comparative Law, Jurisprudence, Uncategorized
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The A2K Symposium: Introduction and Contributors
posted by Amy Kapczynski
Many thanks to Frank and the Concurring Opinions crowd for hosting this symposium about access to knowledge and intellectual property. I’m very much looking forward to the discussion, which begins tomorrow and will continue through Thursday.
We’ve lined up a great list of people, and asked them to react to ideas or themes in our new edited book, Access to Knowledge in the Age of Intellectual Property (pdf and purchase here), or to comment on emerging issues or debates in the domain of access to knowledge. For those who are new to it, a brief introduction to “A2K,” as many of us have come to call it, may help. To cadge from the book’s preface,
A2K is an emerging mobilization that includes software programmers who took to the streets to defeat software patents in Europe, AIDS activists who forced multinational pharmaceutical companies to permit copies of their medicines to be sold in South Africa, and college students who have created a new “free culture” movement to “defend the digital commons”—to select just a few. A2K can also be seen as an emerging set of theoretical commitments that both respond to and reject the key justifications for “intellectual property” law and that seek to develop an alternative account of the operation and importance of information and knowledge, creativity and innovation in the contemporary world.
We’ve lined up a stellar group of contributors for the symposium. We’ve enlisted some of the sharpest thinkers and bloggers on the topic of the “commons,” including David Bollier, who blogs here; Michel Bauwens who blogs here; and Lewis Hyde, the well-known author of The Gift, and more recently, Common as Air: Revolution, Art and Ownership (purchase here).
January 31, 2011 at 3:30 pm
Posted in: Intellectual Property, International & Comparative Law, Symposium (Access to Knowledge), Technology, Uncategorized
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The Yale Law Journal Online: Opting out of the Law of War
posted by Yale Law Journal
In Opting out of the Law of War: Comments on Withdrawing from International Custom, David Luban responds to Curtis A. Bradley and Mitu Gulati’s recent Yale Law Journal Article, Withdrawing from International Custom. Professor Luban’s Essay focuses on Professors Bradley and Gulati’s reading of historical focus, which they use to show both that the customary law was historically considered subject to unilateral withdrawal (the Default View) and that the opposing Mandatory View carries a colonialist legacy. Professor Luban uses the law of war as his principal example to suggest that “stickiness” in international law rules may be a virtue, because if the Default View carries the day, “the alternative to supposedly outmoded customary law is likely to be no law rather than better law.”
Please visit YLJ Online to read our latest Essays and to view the latest issues of our print edition in an electronic format.
December 10, 2010 at 1:33 pm
Posted in: International & Comparative Law, Law Rev (Yale)
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Online Symposium: The Fragmentation of the U.S. Health Care System: Causes and Solutions, Next Week
posted by Glenn Cohen
I am pleased to announce that in a collaboration between the Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics, and Concurring Opinions, Frank Pasquale and I are organizing an online symposium on this blog (beginning on Monday) on the new book The Fragmentation of U.S. Health Care System: Causes and Solutions. This book, which grew out of a conference the Petrie-Flom center hosted in 2008 was edited by Einer Elhauge and featurs a stellar list of contributors from law, economics, medicine, management, and other disciplines.
Here is a description of the symposium on the book and the list of participants:
Why is our health care system so fragmented in the care it gives patients? Why is there little coordination amongst the many doctors who treat individual patients, who often even lack access to a common set of medical records? Why is fragmentation a problem even within a single hospital, where errors or miscommunications often seem to result from poor coordination amongst the myriad of professionals treating any one individual patient? Why is health care fragmented both over time, so that too little is spent on preventive care, and across patients, so that resources are often misallocated to the patients who need it least? This book approaches these broad questions with a highly interdisciplinary approach, including chapters by the nation’s leading professors in law, medicine, economics, health, business, and political science.
Professor Elhauge and the contributors provide a multifaceted approach to these multi-dimensional problems. The divergent perspectives and approaches of the contributors provide the reader with an understanding of the intricacies of the system and proposed solutions. The articles address possible causes of fragmentation, including laws that mandate separate payments for each provider, restrict hospitals or others from controlling or rewarding the set of providers treating a patient to assure coordinated care, and provide affirmative disincentives for coordinating care by paying more for uncoordinated care that requires more services. The authors examine and propose reforms that could make our health care system less fragmented, more efficient, and more effective.
This symposium examines the themes and claims of the book, and in particular examines their relevance in the post health care reform world.
The participants will be
Check in Monday for the launch of the symposium.
October 5, 2010 at 2:55 pm
Posted in: Blogging, Health Law, International & Comparative Law, Uncategorized
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Sending Out an e-SOS
posted by Dave Hoffman
My colleague Duncan Hollis has a new article up on SSRN, An e-SOS for Cyberspace. In the article, Duncan argues that the “conventional response” to cyberthreats (e.g., hacking, e-espionage, cyberwar, and hacktivistism) isn’t working. Though “cybercrime laws proscribe individuals from engaging in unwanted cyberactivities[, such laws fail because] anonymity is built into the very structure of the Internet. As a result, existing rules on cybercrime and cyberwar do little to deter. They may even create new problems, when attackers and victims assume different rules apply to the same conduct.” Instead of traditional proscriptive approaches, Duncan proposes that “states adopt a duty to assist victims of the most severe cyberthreats. A duty to assist works by giving victims assistance to avoid or mitigate serious harms. At sea, anyone who hears a victim’s SOS must offer whatever assistance they reasonably can. An e-SOS would work in a similar way. It would require assistance for cyberthreat victims without requiring them to know who, if anyone, was threatening them.”
I read e-SOS in draft and found it fascinating, even though I have little intrinsic interest in international law or cybersecurity issues. Duncan does a terrific job of storytelling – did you know that the CIA allegedly tampered with the computer control system of a Soviet gas pipeline in 1982, causing the largest non-nuclear explosion in history? Or that the United States recently rescued North Korean sailors from pirates on receipt of an SOS? The article is full of such nuggets. And I think the proposal is pretty clever, and borderline workable. That’s high praise for a law review article.
Anyway, I advise that you download it before some cyberbully manages to hack SSRN and replace it with a trojan horse. And then come back here, follow me after the jump, and enjoy a classic Police video.
September 3, 2010 at 8:16 pm
Posted in: Cyberlaw, International & Comparative Law, Privacy (National Security), Web 2.0
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Self-Sufficiency and Decoupling
posted by Frank Pasquale
I was recently reviewing some of David Singh Grewal’s work, including this excellent essay on Keynes and globalization. Grewal’s book on Network Power was very insightful, and his examination of Keynes promises to advance economic debates long stalled in stale orthodoxies. Grewal describes Keynes’s intellectual evolution from ardent free trader to skeptic, giving this explanation for the shift:
[W]hile Keynes cited many reasons for limiting economic globalization, including for the sake of what we now call the ‘policy space’ available to governments to intervene in the economy, it was international peace that was his foremost concern. Because globalization allows economic relations to form above and outside the state, there is no obvious route to a solution if things go awry (as might be expected) in complex chains of production and investment that cross national borders.
Grewal argues that current global imbalances are underwritten by the “novel combination of globalized finance and a world reserve currency that can be inflated at will.” His diagnosis reminds me of Manuel Castells’s prophetic dissection of dangerous uses of American financial power in the book The Economic Crisis and American Society—a work that, sadly, is as relevant today as it was when it was published in 1980.
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August 19, 2010 at 7:16 pm
Posted in: Culture, Economic Analysis of Law, International & Comparative Law, Law and Inequality, Sociology of Law, Trade, Uncategorized
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In the Venal Colony
posted by Frank Pasquale
Paul Romer is an accomplished man; as he puts it, “I revived growth theory. I made technology work in higher ed. I am two for two, and I think the impossible can be done.” His new idea is to promote economic growth in poor countries by establishing zones within them that are administered by business-friendly foreign governments:
Romer is peddling a radical vision: that dysfunctional nations can kick-start their own development by creating new cities with new rules—. . . centers of progress that Romer calls “charter cities.” By building urban oases of technocratic sanity, struggling nations could attract investment and jobs; private capital would flood in and foreign aid would not be needed. . . . [To run the cities,] Romer looks to the chief source of legitimate coercion that exists today—the governments that preside over the world’s more successful countries. To launch new charter cities, he says, poor countries should lease chunks of territory to enlightened foreign powers, which would take charge as though presiding over some imperial protectorate. Romer’s prescription is not merely neo-medieval, in other words. It is also neo-colonial. . . .
When Romer explains charter cities, he likes to invoke Hong Kong. For much of the 20th century, Hong Kong’s economy left mainland China’s in the dust, proving that enlightened rules can make a world of difference. By an accident of history, Hong Kong essentially had its own charter—a set of laws and institutions imposed by its British colonial overseers—and the charter served as a magnet for go-getters. At a time when much of East Asia was ruled by nationalist or Communist strongmen, Hong Kong’s colonial authorities put in place low taxes, minimal regulation, and legal protections for property rights and contracts; between 1913 and 1980, the city’s inflation-adjusted output per person jumped more than eightfold, making the average Hong Kong resident 10 times as rich as the average mainland Chinese, and about four-fifths as rich as the average Briton.
The idea of a “charter city” brings to mind some of Diane Ravitch’s critiques of charter schools:
The media like to focus on a star charter school, as though one extraordinary school is typical. The teachers are young and enthusiastic; the children are in uniforms and well behaved, and they all plan to go to college. But such stories often overlook important factors about charters: one, the good charters select students by lottery, and thus attract motivated students and families; two, charters tend to enroll a smaller proportion of students who are limited–English proficient, students with disabilities and homeless students, which gives them an edge over neighborhood public schools; and three, charters can remove students who are “not a good fit” and send them back to the neighborhood school. These factors give charters an edge, which makes it surprising that their performance is not any better than it is.
It would likely be very difficult to prove that a “charter city” succeeded on the basis of its “better laws,” rather than its attractiveness to the most ambitious workers. The questions of legitimacy raised by Romer’s proposal are difficult, too. US landlords may attempt to contract into their own “private Idahos” in Greenwich Village, but will international law smile on charter city arrangements? What happens when there is a regime change in the country that originally controlled the city space, and the new regime wants it back?
In any event, for further discussion of the idea, check out Russ Roberts’s interview with Romer, which is very substantive.
July 21, 2010 at 5:03 pm
Posted in: Corruption, International & Comparative Law, Politics
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Petro-Devastation Around the World
posted by Frank Pasquale
After the despairing tone of the last post, I just wanted to highlight GritTV’s excellent clip on the topic, and EarthJustice’s outstanding work to bring polluters to justice. There are also other opportunities for attorneys to make a difference.
June 18, 2010 at 12:18 am
Posted in: Environmental Law, International & Comparative Law
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Don’t Cry for Conchita (or the rest of Dogland)
posted by Frank Pasquale
Today, the WSJ covers a tale of trusts & estates intrigue even more compelling than Leona Helmsley’s:
Her name is Conchita, a thin, spa-loving, diamond-draped heiress, and she’s at the center of one of America’s nastiest estate battles. She is also a dog—a chihuahua who was the favorite of the late Miami heiress Gail Posner, a daughter of the corporate takeover artist Victor Posner. When Ms. Posner died in March at age 67, Conchita and two other dogs inherited the right to live in her seven-bedroom, $8.3 million Miami Beach mansion, their comfort ensured by a $3 million trust fund.
The story reminded me of the following passage from Korzeniewicz & Moran’s 2009 book, Unveiling Inequality:
The magnitude of global disparities can be illustrated by considering the life of dogs in the United States. According to a recent estimate . . . in 2007-2008 the average yearly expenses associated with owning a dog were $1425 . . . For sake of argument, let us pretend that these dogs in the US constitute their own nation, Dogland, with their average maintenance costs representing the average income of this nation of dogs.
By such a standard, their income would place Dogland squarely as a middle-income nation, above countries such as Paraguay and Egypt. In fact, the income of Dogland would place its canine inhabitants above more than 40 percent of the world population. . . . And if we were to focus exclusively on health care expenditures, the gap becomes monumental: the average yearly expenditures in Dogland would be higher than health care expenditures in countries that account for over 80% of the world population. (xv)
June 17, 2010 at 11:58 pm
Posted in: Environmental Law, International & Comparative Law, Law and Inequality, Wills, Trusts, and Estates
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VICTIMS’ UNDERSTANDINGS AND MOTIVATIONS IN PROCESSING HUMAN RIGHTS VIOLATIONS CASES IN THE GLOBAL SOUTH
posted by Tamara Relis
The proliferation of international human rights treaties, committees and courts over the last sixty years represents enormous achievement. International human rights laws are now asserted throughout the world by individuals of many cultures and traditions. Yet, at the same time human rights ideas and principles continue to have difficulty in establishing their relevance in the daily lives of those who are geographically and culturally distant from international institutions (Stacy, 2009). In my forthcoming piece in Human Rights Quarterly, I argue that notwithstanding the fact that giving voice to those oppressed is a main function of the international human rights movement (Baxi, 2009), and that the meaning of human rights must be grounded in local culture at grassroots levels, relatively little scholarship bases its analyses on the discourse of those actually involved in human rights violations cases in the Global South. What are victims’ conceptions and expectations of human rights and their agendas and experiences in formal and informal justice systems processing their cases? This knowledge is critical to enable greater understanding of victims’ needs, epistemologies and micro-realities in order to innovatively engage the controversies in international human rights theory and practice and to effect realizable change for the subjects of human rights in the Global South.
I provide some such data in my forthcoming book based on my empirical research in India, detailed in my earlier post. This includes voices of female victims of violence discussing their comprehensions, objectives, and practices in processing their cases (74 interviews with victims, and 24 with their family members). I link victims’ discourse to norm diffusion theory in international relations (Risse et al. 1999) and to vernacularization theory in law and anthropology (Merry, 2006), which engage the issue of permeation of human rights standards to grassroots levels.
In terms of female victims of violence in India where CEDAW was ratified in 1993, I show that notwithstanding State enactments of laws in line with international human rights obligations, and the dissemination of human rights concepts by transnational activists and domestic NGOs who work to make them meaningful within particular societies, the subjectivities of victims of violence in two major cities (Delhi, Bangalore) as illustrated in their discourse on their motivations and aims in approaching formal courts and informal justice mechanisms suggest little if any human rights emancipation. Those with little education had either never heard of human rights or lacked an understanding of their meaning. More educated victims who had a general sense of human rights concepts knew little of specifics. Moreover, both groups generally felt that fundamental human rights ideas, though something positive, were primarily of use on an inspirational level.
June 1, 2010 at 11:27 pm
Posted in: Articles and Books, Civil Procedure, Civil Rights, Criminal Law, Criminal Procedure, Culture, Empirical Analysis of Law, Feminism and Gender, International & Comparative Law, Interviews, Law and Inequality, Law and Psychology, Sociology of Law
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Paradoxes in Formal Courts versus Informal Justice / Quasi-Legal Processing of Human Rights Cases in India
posted by Tamara Relis
Continuing from my previous post, I will elaborate here on some of the initial arguments from my forthcoming book, INTERNATIONAL HUMAN RIGHTS AND VIOLENCE AGAINST WOMEN: THEORY, GLOBAL STANDARDS AND SOUTHERN ACTORS’ PRAXIS based on the empirical research I conducted throughout India, which I described earlier. Some of these issues are discussed in my forthcoming article, International Human Rights and Southern Realities, 112 HUMAN RIGHTS QUARTERLY (2010), HTTP://PAPERS.SSRN.COM/SOL3/PAPERS.CFM?ABSTRACT_ID=1592042 . There, I argue that on the basis that a culturally plural universalism in human rights is an acceptable aim, we are in dire need of a new integrated analytical framework, one that is grounded not only in the understandings and perceptions of Southern actors (i.e. individuals from the Global South), but that simultaneously imbeds their perspectives within the realities of human rights case processing in the legally pluralistic Global South. This involves not only formal courts but also informal justice or quasi-legal non-state mechanisms processing human rights cases.
PARADOXES IN FORMAL COURTS VERSUS INFORMAL JUSTICE / QUASI-LEGAL MECHANISMS IN INDIA - Paradoxically, the data suggest that the bulk of lawyer advocates and judges working in the lower criminal and civil courts, as well as court-linked ‘lok adalats’ (mediations)–who process great numbers of cases involving serious violence against women involving food deprivation as a means of punishment, physical and mental torture, and rape–utilize international human rights principles to a far lesser extent, if at all, in dealing with these cases than do some informal justice / quasi-legal mechanisms processing the very same type cases. In contrast, the non-lawyer mediators/arbitrators in the informal justice mechanisms studied—who were not only not formally legally trained, but many of whom had poor literacy skills—were far more geared towards resolving cases utilizing principles of international human rights law and CEDAW in particular (e.g. equality, autonomy).
May 24, 2010 at 8:49 pm
Posted in: Civil Procedure, Civil Rights, Criminal Law, Criminal Procedure, Culture, Empirical Analysis of Law, Feminism and Gender, International & Comparative Law, Interviews, Law and Inequality, Law and Psychology, Law Practice, Sociology of Law, Uncategorized
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Book Review: May & Hoskins, International Criminal Law and Philosophy
posted by Matthew Lister
Larry May & Zachary Hoskins, eds., International Criminal Law and Philosophy, Cambridge University Press 2010.
This anthology of new articles edited by Larry May and Zachary Hoskins explores a territory that has not received widespread or sustained philosophical consideration- international criminal law. While May himself has written several important books on the subject, philosophers and legal theorists in general have not focused on the topic. We can hope that this well-done volume, full of provocative and interesting articles, will help encourage more work in the area. The volume consists of a useful introduction by May and Hoskins, followed by four sections, devoted to sovereignty and universal jurisdiction; culture, groups and corporations; justice and international criminal prosecution; and punishment and reconciliation, for a total of eleven articles. While I did not find all of the articles to be equally convincing, all offered grounds for thought. I will focus on one article from each section while only briefly describing the others.
The first section begins with one of the most interesting papers in the book, by Win-chiat Lee, “International Crimes and Universal Jurisdiction”. Lee asks which crimes are “international crimes proper”, and answers this question by looking at universal jurisdiction- jurisdiction that any state may claim over a crime solely because of the nature of the crime, without any territorial or national link. Universal jurisdiction in this sense is distinct both from normal territorial jurisdiction, and also from cases of “jurisdiction pooling”, where states cooperate to better exercise what would otherwise be territorial or national jurisdiction. International crimes proper, Lee contends, are those that are properly subject to universal jurisdiction. Lee’s account has the consequence that the paradigm international crime turns out to be one that happens entirely within the borders of a state, namely, serious crimes committed by a state against its own citizens. These crimes undermine the legitimacy of a state, and therefore call into question its right to maintain a monopoly on the legitimate use of force within its territory. Such crimes need an alternative framework if we are to deal with them, one provided by international criminal law and universal jurisdiction, understood to include the jurisdiction of the ICC.
May 21, 2010 at 3:12 pm
Posted in: Book Reviews, Criminal Law, International & Comparative Law, Legal Theory
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INTERNATIONAL HUMAN RIGHTS AND VIOLENCE AGAINST WOMEN: THEORY, GLOBAL STANDARDS AND SOUTHERN ACTORS’ PRAXIS – Some highlights from a forthcoming book
posted by Tamara Relis
My second book is entitled INTERNATIONAL HUMAN RIGHTS AND VIOLENCE AGAINST WOMEN: THEORY, GLOBAL STANDARDS AND SOUTHERN ACTORS’ PRAXIS (forthcoming). It is based on data I collected over three years in eight states of India and in seven languages while I was a postdoctoral research fellow at Columbia Law School and the LSE (London School of Economics, Dept. of Law, where I continue to be a research fellow). This data was collected with the help of eight teams of about 200 research assistants throughout India. The United Nations Development Program (Delhi), 11 law school Deans, domestic judges, state legal services authorities, local district and high courts, NGO’s and human rights/public interest lawyers throughout India were also involved in the project. The dataset comprises 400 semi-structured depth interviews and questionnaires from victims, accused, lawyers, judges, arbitrators and mediators in 193 cases involving human rights violations of serious violence against women. It also includes case hearing observations in lower formal courts, court-linked mediations known as “lok adalats” and non-state, quasi-legal women’s arbitrations known as “mahila panchayats” and “nari adalats” (British Academy Award PDF/2006-09/64).
Similar to my first book, the South Asian research analyzes legal and lay actors’ understandings, objectives and experiences during case processing. However, the South Asian research builds on and takes in new directions the theories and conceptual arguments I developed in PERCEPTIONS IN LITIGATION AND MEDIATION . In particular, it focuses on local, Southern actors’ perspectives (i.e. individuals from the Global South) on the permeation and perceived relevance of international human rights laws and norms in formal courts and non-state informal justice mechanisms.
Drawing on interdisciplinary scholarship (international relations, law & anthropology, law & development, and victimology literatures), the book questions how the current proliferation of international human rights has shaped case processing systems at grassroots levels. Expanding on my North American findings, Southern legal and lay actors provide local perspectives on non-western models of formal courts and informal justice processes as forms of legal pluralism. I examine how, if at all, international human rights laws and norms (e.g. CEDAW 1979, ICCPR 1976, UN Declaration on Basic Principles of Justice for Victims of Crime and Abuse of Power 1985) have permeated the processing of these cases, comparing how receptive the different spaces of lower courts versus quasi-legal regimes are to claims made from the international sphere. I further examine the theoretical ideas informing these processes (including norm diffusion theory, universalism versus cultural relativism, restorative justice, and feminist critiques of mainstream human rights paradigms) and how these ideas are understood by those on the ground. The research also highlights the interdependence of all human rights and the link between human rights, women’s rights and development, which has been the subject of much debate. Finally, the findings provide a critique on the boundaries created both between formal and informal justice, as well as between ratified international law and the permeation of international human rights norms in case processing at grass roots levels.
Interestingly, depending on arbitrary factors including parties’ geographic and/or socioeconomic positions within India, the same type cases might be heard in either criminal or civil lower courts (magistrates/sessions/district) or in the above-mentioned court-linked or non-state quasi-legal mediations or arbitrations. The dataset additionally comprises “in-chambers mediations”, which are newly exported forms of American justice to India. These are case management tools that include ADR and plea bargaining methods, which have been and are being taught to Indian judges and advocates by a number of Californian judges and US Department of Justice representatives with the aim of deflecting cases from the overburdened Indian courts where trial waits of 10 years or more are not uncommon. This is being done predominantly for US commercial interests. However, these case management tools also affect the processing of violence against women cases.
May 17, 2010 at 8:54 pm
Posted in: Articles and Books, Civil Procedure, Civil Rights, Criminal Law, Criminal Procedure, Culture, Empirical Analysis of Law, Feminism and Gender, International & Comparative Law, Interviews, Law and Inequality, Law and Psychology, Law Practice, Sociology of Law
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Wrongful Adoption or Adopting Blindly?
posted by Solangel Maldonado
I have been following the news stories about the Tennessee mother that put her adopted child on a plane (alone) back to Russia because she could no longer cope with his significant health and behavioral problems. Although saddened by this case, I see a silver lining. Maybe, Americans will finally see that international adoptions are not necessarily any less risky than domestic adoptions. In an article published several years ago, I examined the reasons why many Americans prefer to adopt internationally as opposed to domestically. I am not opposed to international adoptions and in fact, believe that the law should encourage more families to adopt, both domestically and internationally, so long as the adoption is in the particular child’s best interest. However, I was puzzled that many families chose to adopt internationally despite the high financial costs ($20,000-$35,000), extensive delays, and bureaucracies in both the U.S. and the sending country. One common response was that domestic adoptions were too risky—specifically, that foreign-born children had fewer health risks than the children available for adoption in the U.S., international adoptions were less likely than domestic adoptions to be disrupted, prospective parents would have a child in their home sooner, and the process was less expensive. In the article, I summarized the literature debunking these myths. Here, however, I would like to focus on only one—the belief that foreign-born children have fewer health risks than those available for adoption in the U.S.
April 29, 2010 at 11:06 pm
Posted in: Family Law, International & Comparative Law
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The Globalization of Securities Regulation: Competition or Coordination?
posted by Robert Ahdieh
Thanks to Danielle, Dan, and entire Concurring Opinions team, for having me back for a return stint.
I write from the University of Cincinnati Corporate Law Center’s 23rd Annual Symposium, on the subject of The Globalization of Securities Regulation: Competition or Coordination?
Our host is Professor Barbara Black, and other panelists include Bill Bratton, Chris Brummer, Hannah Buxbaum, Eric Chaffee, Andrea Corcoran, Steve Davidoff, Jim Fanto, Robert Patterson, and my colleague, Fred Tung.
I mention all this because, for those who may be interested, the symposium is being webcast as I type (and listen to Hannah’s presentation, on The ‘Global Enterprise’ in Cross-Border Securities Litigation). You can find it here:
https://www.uc.edu/ucvision/event.aspx?eventid=245
And if you have questions you’d like raised, you can e-mail them to Barbara here: corporatelawsymposium@law.uc.edu.
Hope you can join the discussion!
March 5, 2010 at 9:08 am
Posted in: Accounting, International & Comparative Law, Securities Regulation
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Natural Law, Imperialism, and the Birth of Free Exercise Jurisprudence
posted by Nate Oman
I have been researching Reynolds v. United States (1879), the Supreme Court’s first Free Exercise case, on and off for several years. For those who are interested, my paper on the topic is now available for download at SSRN. My interest in the case is historical rather than doctrinal. I am interested in what Reynolds, which held that religious polygamy was not protected by the First Amendment, and the anti-polygamy crusade that followed tell us about constitutional politics in the nineteenth century. Historians have generally situated the case within the context of the post-Civil War politics of Reconstruction. The anti-polygamy crusade kicked off by Reynolds is seen as an extension of Reconstruction into the West. I offer a new interpretation.
I began my research by asking myself what the theory of the First Amendment put before the Court by the Reynolds’s lawyers looked like. The Court — following the arguments of the Attorney General — characterized the Mormons as claiming that all religiously motivated action was exempt from the criminal law. This sort of absolutist position, the Court and the government pointed out, would allow absurd results such as the inability to criminalize religiously motivated murders. The Court, however, was knocking down a straw man. The Mormons never in fact made this claim. Rather, they argued that the First Amendment only protected religiously motivated conduct that was not malum in se, that is wrong in and of itself as opposed to being wrong merely because of the law (malum prohibitum). Actions could be judges as malum in se, they went on to argue, by appeal to a set of well-established natural law arguments. These arguments were based in part by a series of more-or-less positive analogies to non-Western legal systems. The Court responded implicitly to this argument by analogizing Mormons to Indians and the federal government to the British Raj. In other words, the Court in effect looked at “The Mormon Question” through the lens of imperialism.
This imperial analogy was more than a one-off rhetorical fillip in the Court’s opinion. It shows up all over the anti-polygamy battles, where it is important for distinguishing the situation in Utah from the situation in the Reconstruction and post-Reconstruction South. It also gets picked up on in the first generation of cases that invoke Reynolds and its progeny as precedent. These cases, known as The Insular Cases, arose in the context of the United States’ conquest of the Philippines in the Spanish American War of 1898 and addressed the question of the federal government’s authority to engage in imperialism and colonialism abroad. In these cases Reynolds was seen not as a First Amendment case as much as a case about the scope of Congressional power over a conquered people. My paper thus suggests that Reynolds and the anti-polygamy battles need to be seen not only in the context of the domestic debates over Reconstruction that proceeded them. Rather, Reynolds and its heirs must also be seen as a prelude to the international debates over imperialism that followed the Spanish American War.
For those interested, here is an abstract of the paper: Read the rest of this post »
March 3, 2010 at 8:46 am
Posted in: Constitutional Law, Criminal Law, First Amendment, History of Law, International & Comparative Law, Jurisprudence, Law and Humanities, Race, Religion, Supreme Court
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