Category: International & Comparative Law


Parting words from Justice Scalia

scalia.jpgThe time has come for me to say farewell to the CoOp community — I’ve thoroughly enjoyed my stint as a guest blogger, and hope to visit again sometime soon.

As much of my blogging over the last month has been on the controversy over the use of foreign and international law in U.S. courts (see here and here), I thought it would be appropriate in my “farewell” blog to give Justice Scalia the last word. His diatribes against foreign and international law have inspired various Congressional attempts to legislate against the practice: A Senate bill, for example, would forbid federal judges from citing “any constitution, law, administrative rule, Executive order, directive, policy, judicial decision, or any other action of any foreign state or international organization or agency, other than English constitutional and common law up to the time of the adoption of the Constitution of the United States.” So what does the Justice himself think about his Congressional fan club?

Not much, apparently. The Washington Post reports today that Justice Scalia chastised Congress for sticking its nose where it doesn’t belong. “It’s none of your business. No one is more opposed to the use of foreign law than I am, but I’m darned if I think it’s up to Congress to direct the court how to make its decisions.” The pending legislation, Scalia complained, “is like telling us not to use certain principles of logic.” And he concluded, “Let us make our little mistakes just as we let you make yours.”

As surprised as I am to find myself in agreement with him, I say, “Amen, Justice Scalia.” In my view, the jury is still out on whether it’s a “mistake” to rely on foreign and international law in constitutional interpretation — but surely this is something for our judges to decide for themselves. America is blessed with one of the strongest judiciaries in the world, and we can trust them to figure this out on their own. Congress should leave them alone and let them do their jobs.

And on that note, I’ll sign off for now. Many thanks to all those who have debated this and other issues with me over the past month. I have learned much from your comments, and look forward to continuing the dialogue in the future.


Wanna hobnob with George Clooney this weekend?

Then come join the crowds at the Save Darfur Coalition’s “Rally to Stop Genocide” on the National Mall in Washington, D.C., this Sunday, April 30. Other luminaries appearing at the event include Senator Barack Obama, Nobel Peace Prize winner Elie Wiesel, rap impresario Russell Simmons, and Paul Rusesabagina (whose story was depicted in the superb film Hotel Rwanda, which you should rush out and rent tonight if you haven’t seen it yet). The Save Darfur Coalition brings together more than 160 faith-based, human rights, and humanitarian organizations, and the list of speakers at Sunday’s event reflects the incredibly diverse, grass roots nature of this effort. Here’s the blurb from the Coalition’s website:

“The rally is part of the “Million Voices for Darfur” campaign to generate one million postcards for delivery to President Bush, who recently pledged to push for additional UN and NATO help to protect the people of Darfur. We applaud the President’s leadership, but the work is far from done. We are urging President Bush to take steps necessary to end the genocide and build a lasting peace.”

Organizers estimate that around 20,000 people will attend the rally in DC, with smaller rallies to be held in cities around the country. Even if the crowds defy expectations and number in the hundreds of thousands, they will be dwarfed by the figures coming out of Sudan itself: According to the Coalition website, in just three years, 400,000 people have died and nearly 2.5 million have been displaced.

How many political issues out there can unite Barack Obama and Sam Brownback in common cause? Kudos to both Senators, and to the many other politicians, celebrities, and ordinary folk who have put compassion and principle above partisan bickering, in an attempt to shake us all out of our apathy.


Looking Out Over the Crowd: A Moderate’s Take

In a previous post, I asked whether there was anything new to be said on the issue of the role of foreign and international law in interpreting the U.S. Constitution. Roger Alford wrote a thoughtful comment (also posted on Opinio Juris), laying out what he sees as some of the big issues that remain to be explored among scholars and courts. His post got me thinking: How will the debate over foreign and international law evolve over the next, say, ten years? And what will second-generation scholarship in this area look like? I, for one, hope it looks something like the following:

First, I hope we all tone down the rhetoric. Justice Ginsburg has a point when she blames the hysterical tone struck by many Congressmen (and, I would add, by Justice Scalia) for fueling the death threats that she and Justice O’Connor have received from the “irrational fringe”. On the other hand, she and others in the so-called “internationalist” camp surely deserve some of the blame for the ratcheting up of the rhetoric: They wrongly dismiss the democratic legitimacy concerns of those in the so-called “nationalist” camp as just so much neo-isolationist thinking. Is the simplistic, Crossfire-esque tone of the debate really helpful, and why does everyone feel the need to choose up sides? Am I an internationalist or a nationalist? I have no idea, because I don’t know what these labels MEAN.

Instead, I hope future debate on these issues becomes increasingly dominated by moderates, who reject these simplistic labels. In fact, the tide may already be turning: A recent editorial in the Washington Post called for moderation, and pointed out that “in the debate over foreign law, neither side has a monopoly on wisdom.” So what does a nuanced debate on the role of foreign and international law – one dominated by moderates in both camps — look like?

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If you’re watching television tonight …

Check out “The Armenian Genocide,” a PBS documentary that tells the sad story of the slaughter of over a million Armenians by the Ottoman Empire during and just after World War I. Read the New York Times’ review of the documentary here.

Genocide is much in the news of late: Justice Kennedy devoted his entire keynote speech at the Annual Meeting of the American Society of International Law to the issue (see my previous post here), and genocide charges are pending against Saddam Hussein for the mass slaughter of Kurds during the 1980s. The PBS documentary reminds us that the crime of genocide has a long and painful history, one that pre-dates the 1943 coining of the term “genocide”. (For those who are interested in the issue, there’s no better reference than Samantha Power’s Pulitzer prize-winning book, “A Problem from Hell: America and the Age of Genocide.)

Amazingly, the Armenian genocide is still the subject of tremendous controversy a hundred years after it took place — the government of Turkey resolutely refuses to admit that it occurred, even at the risk of jeopardizing its entry into the European Union. Apparently PBS’s treatment of the issue is also not immune from the controversy: According to the New York Times, many PBS stations (bowing to lobbying efforts by Armenian groups and some U.S. Congressmen) have pulled a panel discussion that was to air after the documentary, in which two “experts” were to defend Turkey’s position that the genocide never occurred.

Why should you care about a “forgotten” genocide that occurred almost a hundred years ago? Here’s one reason: Many argue that the Armenian genocide – and the world’s failure to stop (or even to condemn) it – served as a source of inspiration for the policies of Adolf Hitler. He famously said:

I have placed my death-head formations in readiness, with orders to them to send to death mercilessly and without compassion, men, women, and children of Polish derivation and language. Only thus shall we gain the living space which we need. Who, after all, speaks today of the annihilation of the Armenians?

Kudos to PBS for proving Hitler wrong. The show airs tonight on PBS, at 9 p.m. EST.


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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