Category: International & Comparative Law


Reading Justice Kennedy’s Tea Leaves

Scholars like myself who write on the formerly-arcane-now-bizarrely-fashionable issue of the role of international law in U.S. courts were sorely disappointed by Justice Anthony Kennedy’s keynote address a few weeks ago at this year’s Annual Meeting of the American Society of International Law. The past four years of ASIL having witnessed Justices Breyer, Ginsburg, O’Connor, and Scalia speak at length on the issue, Justice Kennedy departed from established tradition and instead gave the crowd a moving (even if somewhat depressing) speech on the dangers of genocide and our obligations as lawyers to do something about it. (Peggy McGuinness at Opinio Juris blogs about it here. Tony Mauro reports on the speech here.) He even declined to answer a question asking him for his views on using international law from none other than Anne-Marie Slaughter (former president of ASIL and now dean at Princeton), simply responding that “we should be judged by what we write.” But Justice Kennedy has not always been so reticent. In a speech just last year before the Eleventh Circuit Judicial Conference, he discussed at length the numerous international law issues before the Court, and defended the Court’s use of foreign legal sources in its decisionmaking.

All of which leaves me wondering: Has Justice Kennedy suddenly lost interest in the debate over the role of foreign and international law? What explains his reluctance to share his views? Have Congressional resolutions condemning the use of foreign authority in US courts lessened his enthusiasm for the practice? Have the diatribes of irresponsible politicians — inspiring death threats from those whom Justice Ginsburg calls the “irrational fringe” – played a role? In short, is Kennedy backing away from his now-famous statement in Roper: “It does not lessen our fidelity to the Constitution or our pride in its origins to acknowledge that the express affirmation of certain fundamental rights by other nations and peoples simply underscores the centrality of those same rights within our own heritage of freedom”? Or is it simply that the battle lines have now been drawn, everyone has chosen up sides in this Crossfire-esque debate, and so Justice Kennedy reasonably believed that there is nothing new to be said on the subject?

What does the CoOp crowd think? IS there anything new to be said on this subject? And will Justice Kennedy back away from Roper in future decisions?


The East Meets Easterly

The Times yesterday, per the extremely generous Virginia Postrel, reviewed the latest critique of international development assistance, White Man’s Burden, by William Easterly. The genre isn’t a new one – writers have long savaged the World Bank for being bureaucratic, the West for being stingy, and political leaders of the developing world for being corrupt. If you define the whither-development genre broadly enough, you could throw in the much-noticed recent work of economists like Glaeser & Shleifer, and perhaps even law professors like Hansmann & Kraakman, on the keys for the development of prosperity-creating markets in the west, as opposed to elsewhere (to oversimplify, it’s independent courts and asset shielding aspects of the corporate form, respectively).

In international trade, a subject that I teach, the so-called Doha round of talks is explicitly focused on creating a trade deal that will help to spur development. Easterly appears to be sympathetic to a “trade not aid” approach to international development; he thinks that development assistance must be paired with incentives – that anti-malarial drugs should be sold, rather than given away. But he also seems to be enamored of business jargon: aid givers should be “searchers,” and not “planners,” and should avoid one-size-fits-all recommendations.

I don’t precisely know what “searching” means, but I do know recognizing the complexity of difficult problems can, if done too vigorously, deprive the people who want to solve those problems of the intellectual means – simplification, extrapolation, and theory – that they may need to solve them. As Postrel says, “extracting lessons from experience is quite compatible with decentralized searching. Businesses in radically different industries learn from one another. Searching includes discovering the day’s best practices. Not every situation is unique.”


Making Administrative Law Au Courant

Okay, now that the first post is out of the way, a little bit about myself. I write about administrative law, often about alternatives to traditional Administrative Procedure Act rulemaking, whether done by agencies themselves or by other lawmaking institutions, like district courts. And I’m becoming a veteran guest blogger, a – dare I dream? – poor man’s Paul Lynde of the legal blogosphere.

Some administrative law teachers have been accused of being secret aficionados of constitutional law, which they proceed to teach – somewhat dryly, I imagine – to their adlaw students. Instead of learning the regulatory process alone, these students also get lengthy instruction on, say, constitutional canons of interpretation and the separation of powers, all in the somewhat weak light of EPA rulemakings and ICC adjudications.

I’m not a secret conlaw guy, although the subjects above have reared their heads in my adlaw class. But I am closely watching the growth of another sort of administrative law scholarship that might have its heart – or part of its brain, anyway – in another legal discipline. Two NYU professors have founded a Global Administrative Law Project, international relations scholars remain abuzz about the development of transgovernmental relations, and the growing importance of global networks of regulators have been the subject of a series of panels at the American Society of International Law Annual Meeting.

Have we entered the era of International Administrative Law?

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O Canada!


Today Canadians go to the polls to see if the ruling Liberals remain in power, or if they will be ousted in favor of the Conservatives. (For those who don’t closely follow such things, Canada is a small country south of Detroit.) The Liberals have been in power for a long time, and aside from the normal woes of prolonged incumbency (in-fighting, intellectual exhaustion, voter fatigue, etc.), the Liberals are also reeling from a scandal over the funneling of government advertising money in Quebec into Liberal coffers. The Conservatives are sharpening their knives and trying their darndest not to make any anti-Quebec jokes in public.

The Liberals are pinning their hopes on America, or more precisely, Canadian aversion to America. Aside from (eastern) Canada’s cultural dislike of America, the Liberals have been pitched a great slow ball by the Bush Administration, which in its role of protectionist pander to the American timber industry has been flouting a final ruling to the effect that US soft-wood tarrifs against Canada are a blatent violation of the its NAFTA treaty obligations.

While most Americans are likely to react to this issue by saying, “I didn’t realize that Canada was — you know — technically a separate country,” it has been a very big deal north (or south if you are in Detroit) of the border. Interestingly, the American judiciary has also popped up as an issue in the campaign:

[Martin, the Liberal PM] seized this week on Harper’s [the Conservative challenger] criticism of judicial activism, warning that the Conservatives would try to circumvent the courts. Helping Martin, the attorney general of Ontario, Michael J. Bryant, accused Harper of wanting to “Americanize our judiciary.”

What they are arguing about here is the Canadian Supreme Court’s decision on same-sex marriage. Now regardless of how one comes down on the merits of Canada, same-sex marriage, or the evils of the United States, this is a bizarre rhetorical game. Whatever judicial involvement in contentious social issues may be, it is as American as apple pie. (And yes, I realize that they have apples in Canada too. The Bush Administration is probably secretly funding covert Canadian crop destruction at the behest of Washington apple farmers.) Indeed, it seems to me that strong judicial review has been one of America’s few constitutional exports. Most places have not been too impressed by the separation of powers and a strong independent executive. In this sense, the Westminster model has been much more successful around the world than has been the American model. What countries — notably Canada and Israel — have self-consciously borrowed from the United States are strong, independent judiciaries dedicated to the legal elaboration of fundamental rights.

Hitting Harper for secretly wanting to Americanizing Canadian health care might be a bit plausible. As for the Canadian judiciary, it strikes me that it has already been Americanized…


Adultery and Polygamy

wedding.jpgAn article (sorry no link) in this week’s Economist (aka “The Greatest News Magazine in the World”) suggests a link between polygamy and Turkey’s recent efforts to pass a law criminalizing adultery. Back in September, the Turkish parliament debated a proposed law criminalizing adultery. After Kamal Ataturk came to power in the wake of World War I, Turkish law moved in an aggressively secular direction, mainly by importing western-style civil codes. Most strikingly, Turkey essentially adopted the Swiss family law code and among other things criminalized polygamy, which had been allowed under the previous shar’ia-based law. (In theory, under shar’ia a man may have up to four wives provided that he has the means of supporting them and treats all of them equally.) The post-Ataturk laws also criminalized adultery, however this law was struck down by Turkey’s Constitutional Court in 1996 because it treated men and women differently. (As I understand it, the law required proof of a long-term affair in the case of male adultery, but a single act of sexual intercourse was sufficient in a case of female adultery.) The new adultery law was to remedy this infirmity by applying equally to both men and women, but women’s rights groups opposed the law arguing that it would not be applied equally and violated the right to privacy. More importantly, from the point of view of Turkish politics, the law was not popular with the Europeans, who saw it as an attempt to Islamicize Turkish law. Turkey very much wants to become a full member of the EU, so staying in the good graces of the elites in Brussels is very important.

Enter polygamy. Although the Turkish prohibition on polygamy is now about eighty years old, in many areas — particularly in the rural, Kurdish, anti-Turk, south-eastern portion of the country — polygamy is alive and well. More surprisingly, a certain amount of discrete polygamy continues among urban elites, including former ministers in the Turkish cabinet. The Economist suggests that adultery law may have been pushed in part as a way of shoring up the anti-polygamy prohibition. If this is the case, then the Turkish parliament was walking a path previously trod with great enthusiasm by the U.S. Congress.

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