Category: International & Comparative Law


The Parenting Debate

Although I am somewhat hesitant to add another voice to an already loud debate about the work-family conflict that has arisen again in the last month or so, I am finding it difficult to stay quiet.  As the working mother of a 3 ½ year old and a 3 month old, this is the legal and policy issue that affects me most these days.

When Anne-Marie Slaughter wrote her piece in the Atlantic, arguing that women in top government and business positions are leaving because of the difficulty of combining work and family, she predictably drew loud praise and equally loud critique (including an interesting post by Sherilyn Ifill, linked to from Concurring Opinions).  But then, Marissa Mayer, Yahoo’s newly appointed CEO, added her voice to the debate (perhaps unwittingly) when she told Fortune that she was pregnant and that her maternity leave would be “a few weeks long, and I’ll work throughout it.”  That comment brought a new onslaught of responses including criticism that she was doing a disservice to all working women whose employers would now expect them to “work throughout” their maternity leaves.

Whether this is a male/female issue or merely a parenting issue that cuts across gender, what is clear from the numerous opinions out there is that one size does not fit all.  In fact, if I am any example, one approach might not even work throughout one person’s working/parenting life. As a first time mom and associate at a law firm, I took a 6½ month leave, made possible by a hefty pay check and 12 weeks of paid leave.  Now that it’s my second time around and I am transitioning to academia, I chose to work from home through the first few months after my son was born and (mostly) don’t regret it.

The notion of privileging women or parents by building in options for them is not new and is, in fact, the dominant approach in many European countries and in Israel (which I have written about in the past).  But it has not been the American way.  Might we be changing?  In my prior article, I wrote about the emergence of the Israeli approach as a function of the society’s overall collectivist culture and a national interest in promoting reproduction and the parent-child bond.  I am wondering whether there is a chance that Americans could recognize this too.

Of course, that would not be the end of the debate.  What would the privileging of women or parents mean for equality?  If women (by law) gain options that men don’t have, do they come out equal, better, or worse?  For example, if we mandate paid maternity leave as some countries do, will employers stop hiring fertile age women out of fear that they will exercise this option and be less productive than men?  What if the option is non-gendered and open to all parents?  Will men exercise the option or continue to feel pressure to return to work immediately after a child is born?  Will women?  While the answers to these questions remain unclear, one thing is obvious—this is not a problem that parents can solve on their own.  Beyond the debate in the media, it is high time for a serious debate in government about remedies (beyond the Family Medical Leave Act) for working parents who are having trouble being good at both jobs.



There is no new thing under the sun

Photo: Like it’s namesake, the European Data Protection Directive (“DPD”), this Mercedes is old, German-designed, clunky and noisy – yet effective. [Photo: Omer Tene]


Old habits die hard. Policymakers on both sides of the Atlantic are engaged in a Herculean effort to reform their respective privacy frameworks. While progress has been and will continue to be made for the next year or so, there is cause for concern that at the end of the day, in the words of the prophet, “there is no new thing under the sun” (Ecclesiastes 1:9).

The United States: Self Regulation

The United States legal framework has traditionally been a quiltwork of legislative patches covering specific sectors, such as health, financial, and children’s data. Significantly, information about individuals’ shopping habits and, more importantly, online and mobile browsing, location and social activities, has remained largely unregulated (see overview in my article with Jules Polonetsky, To Track or “Do Not Track”: Advancing Transparency and Individual Control in Online Behavioral Advertising). While increasingly crafty and proactive in its role as a privacy enforcer, the FTC has had to rely on the slimmest of legislative mandates, Section 5 of the FTC Act, which prohibits ‘‘unfair or deceptive acts or practices”.


To be sure, the FTC has had impressive achievements; reaching consent decrees with Google and Facebook, both of which include 20-year privacy audits; launching a serious discussion of a “do-not-track” mechanism; establishing a global network of enforcement agencies; and more. However, there is a limit as to the mileage that the FTC can squeeze out of its opaque legislative mandate. Protecting consumers against “deceptive acts or practices” does not amount to protecting privacy: companies remain at liberty to explicitly state they will do anything and everything with individuals’ data (and thus do not “deceive” anyone when they act on their promise). And prohibiting ‘‘unfair acts or practices” is as vague a legal standard as can be; in fact, in some legal systems it might be considered anathema to fundamental principles of jurisprudence (nullum crimen sine lege). While some have heralded an emerging “common law of FTC consent decrees”, such “common law” leaves much to be desired as it is based on non-transparent negotiations behind closed doors, resulting in short, terse orders.


This is why legislating the fundamental privacy principles, better known as the FIPPs (fair information practice principles), remains crucial. Without them, the FTC cannot do much more than enforce promises made in corporate privacy policies, which are largely acknowledged to be vacuous. Indeed, in its March 2012 “blueprint” for privacy protection, the White House called for legislation codifying the FIPPs (referred to by the White House as a “consumer privacy bill of rights”). Yet Washington insiders warn that the prospects of the FIPPs becoming law are slim, not only in an election year, but also after the elections, without major personnel changes in Congress.

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Illinois Law Review, Issue 2012:2 (March 2012)

University of Illinois Law Review Logo

University of Illinois Law Review, Issue 2012:2

Please see our website for past issues


Homogeneous Rules for Heterogeneous Families: The Standardization of Family Law When There is no Standard Family – Katharine K. Baker (PDF)

Legal Sources of Residential Lock-Ins: Why French Households Move Half as Often as U.S. Household – Robert C. Ellickson (PDF)

Sealand, HavenCo, and the Rule of Law – James Grimmelmann (PDF)

David C. Baum Memorial Lecture on Civil Rights and Civil Liberties

Citizens United and Conservative Judicial Activism – Geoffrey R. Stone (PDF)


Bargaining for Salvation: How Alternative Auditor Liability Regimes Can Save the Capital Markets – Hassen T. Al-Shawaf (PDF)

Analysis Paralysis: Rethinking the Courts’ Role in Evaluating EIS Reasonable Alternatives – J. Matthew Haws (PDF)

The Real Social Network: How Jurors’ Use of Social Media and Smart Phones Affects a Defendant’s Sixth Amendment Rights – Marcy Zora (PDF)


Sidestepping corporate liability, Supreme Court shifts focus of Kiobel case to extraterritoriality

(Marco Simons is Legal Director of EarthRights International.  He is a graduate of Yale Law School, where he received the Robert L. Bernstein Fellowship in International Human Rights.)

Last week I blogged about the Kiobel v. Royal Dutch Petroleum case, in which the Supreme Court was considering whether corporations could be sued for complicity in serious human rights abuses under the Alien Tort Statute (ATS). I noted that some scholars and amici were urging the Supreme Court to decide the case on other grounds; namely, that the ATS was limited to suits against U.S. citizens.

On Monday the Supreme Court issued a rare reargument order in Kiobel, directing the parties to re-brief and argue next Term the question of “[w]hether and under what circumstances” the ATS allows suits for abuses “occurring within the territory of a sovereign other than the United States.”
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Wrongful Auction of Stolen Chinese Cannon

The cannon pictured was stolen from the Chinese by Webb Hayes, son of president Rutherford B. Hayes, after the notorious Boxer Rebellion of 1899-1901 fomented by foreign armies. Other Chinese property Hayes stole is displayed at the Hayes presidential museum in Cleveland and at West Point’s museum. The cannon will soon go on sale at auction in New York, says the New York Times, at the Cowan Auction house.

All those involved in sustaining the original theft should be ashamed, including the current “owner” and the auction house.  The property should be returned to China. The current “owner” of the cannon paid $150,000 for it last year, fixed it up, and now proposes to fetch three to four times that. 

It seems offensive, yet also common, for Westerners to deny that they hold stolen goods that rightfully should be returned to China.  On the rare occasions when Westerners have returned such property, Chinese respond with an outpouring of gratitude.

The first such example appears to have occurred about two decades ago, thanks to senior executives of American International Group (AIG).  In 1991, a senior executive of AIG’s Asian life insurance business heard that a Paris gallery came into possession of ten imposing bronze window panels. Initial research suggested these exquisite objects—each towering ten feet and emblazoned with iconic serpents and dragons—may have been part of the Baoyun Pavilion at the Summer Palace in Beijing, looted by foreign armies during the Boxer Rebellion.

The executive reported this to AIG’s chief executive, Hank Greenberg, who was also chairman of the Starr Foundation, created by his predecessor, the legendary insurance pioneer, Corneilus Vander Starr, who had opened American insurance operations in China in 1919.  Greenberg, who had been running AIG’s insurance operations in China since 1975, and had many friends in the country,  instantly appreciated the significance of this discovery. He knew that the Pavilion had been closed ever since, as the loss of those windows amounted to a loss of face for the Chinese people.

Experts confirmed that the window panels were indeed those missing from the Pavilion. The treasured national assets had been stolen by a French army officer amid the period’s pillaging. The Starr Foundation bought the iconic window frames from the French gallery for $510,000 and arranged for repatriation into China.

A national rededication service followed in December 1993, broadcast throughout the country on television. Millions of grateful Chinese watched tearfully during the ceremony. It was the first time that any foreign organization had returned missing national Chinese artifacts to the homeland. It was the right thing to do.

It would be the right thing to do with this cannon as well, along with the items in the Hayes presidential museum that the president’s son stole, the items at West Point, and anything else Westerners stole from the Chinese during the Boxer Rebellion.


Physical Punishment and Parental Rights

A recent study published online in the Canadian Medical Association Journal brings up the unresolved debate about parental rights and physical punishment of children.  This study lends support to an argument I made some years ago in an article called “Suing for Lost Childhood” about the use of the delayed discovery rule in child sexual abuse cases.  In my article, I argued that physical abuse of children and neglect can have impacts on children’s development that are as destructive as sexual abuse, but for a variety of reasons we are as a culture more attuned to issues related to children and sexuality.  (I later called the analysis used in that article “narrative genealogy” as it traces the cultural origins and migrations of stories that ultimately had shaping effects on legal decisions.)

The CMAJ study reviews 20 years of published research on physical punishment of children and concludes that no evidence exists of positive outcomes.  Physical punishment is correlated with aggression and antisocial behavior, cognitive impairment and developmental problems, as well as depression, spousal abuse, and substance abuse.  Co-author Joan Durrant says, “”There are no studies that show any long term positive outcomes from physical punishment.”   Summaries of the study say that the study refutes the frequent argument that aggression comes before corporal punishment and not vice versa.  (I’ll get to the viral video of the dad shooting his daughter’s computer with a .45).

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ECHR on Diplomatic Assurance, pt. 2

I would like to thank Sarah Waldeck and the rest of the Concurring Opinions authors for allowing me to stay on until February 15th.  A lot happened has happened in the past few days with significant implications for international human rights law, but before I turn to these events I want to finish up my thoughts on the recent decision by the European Court of Human Rights in Othman v. United Kingdom.

To briefly recap, the Court’s judgment contained two main holdings. First, it found that diplomatic assurances agreed upon by Jordan and the United Kingdom sufficient to mitigate the risk that the Islamist cleric Omar Othman (a.k.a. Abu Qatada) would be tortured if extradited to Jordan for trial.  Second, it found that transfer to Jordan would expose Othman to an unfair trial, in that it was likely that evidence derived from torture would be used against him.  The second holding effectively bars the United Kingdom from transferring Othman to Jordan. The United Kingdom has 3 months days to appeal the decision to the Grand Chamber.

As promised in my previous post, I want to offer some thoughts here on whether the ECHR persuasively addressed criticism of the post-transfer monitoring arrangement created by MOU and exchange of letters between Jordan and the United Kingdom. The judgment contains some significant weaknesses in this regard, as I detail here:

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The Yale Law Journal Online: Outcasting, Globalization, and the Emergence of International Law

 The Yale Law Journal Online has published the second in a series of responses to Oona Hathaway and Scott S. Shapiro’s article Outcasting: Enforcement in Domestic and International Law, which appeared in the November 2011 issue of The Yale Law Journal. In Outcasting, Globalization, and the Emergence of International Law, Robin Bradley Kar builds on Hathaway and Shapiro’s work by recasting their conclusions in the context of obligation. Kar argues that understanding the perceived obligatoriness of law is key to arguing whether international law is law. Enforcement mechanisms like outcasting or physical sanction are effective because they provide the necessary evolutionary stability conditions for a system of international legal obligations to thrive. Kar posits that the emergence of such a system is evidence of a significant transformation in our social order.

Preferred citation: Robin Bradley Kar, Outcasting, Globalization, and the Emergence of International Law, 121 YALE L.J. ONLINE 413 (2012),


Privacy Torts in Canada and the International Convergence of Privacy Law

Over at the HL Chronicle of Data Protection, I have a post entitled Privacy Torts in Canada and the International Convergence of Privacy Law. The post discusses a recent privacy tort case from Ontario, Canada that recognizes the Warren and Brandeis’ privacy tort of intrusion upon seclusion.  From the post:

The recognition of the US privacy torts by a Canadian court is further demonstration of a general trend – the convergence of privacy law across countries around the world.  Although profound differences in the law remain between countries, there has also been significant convergence.

Read the rest of the post over at HL Chronicle.