How 'bout a women's legal history trial?

A prince is about to stand trial for murder.

He's Hamlet, fatal assailant of the meddlesome man destined (if Ophelia had her way) to become his father-in-law.

At issue: given the welter of woe in which Shakespeare situated the troubled Dane, is the prince mentally competent to face judgment?

"The Trial of Hamlet" will take place January 31 at the University of Southern California in Los Angeles. (here for tickets & image credit) Justice Anthony M. Kennedy, who created the play, will preside. A jury including celebs like Helen Hunt will decide.

Karen Wada of the Los Angeles Times properly places the staging in a Court tradition, writing that "[i]n 1987, for instance, three high court jurists heard arguments over who really wrote Shakespeare's plays." (On continuing high court furor over the question, see this article by Jess Bravin.)

Blog readers no doubt also are familiar with the many trials of this sort staged by the American Bar Association.

So here's a thought:

How 'bout retrying some signature event of women's legal history? (And see here and here.)

Jumping to mind are 2, both involving IntLawGrrls foremothers:

► The 1873 conviction of Susan B. Anthony (by a U.S. Supreme Court Justice) for the offense of illegal voting.

► Any number of 1917 jailings -- at times brutal -- of Alice Paul, Lucy Burns (left), and their National Woman's Party colleagues for the "direct action campaign" against U.S. entry into World War I. As IntLawGrrls alumna Catherine Lanctot has posted, they took that campaign to "the very doorstep of the President of the United States, Woodrow Wilson."

Additional nominations welcome.

Darfur.Gitmo.dot.

There's a constant in the subtext of stories about Sudan.
For years, criticism of Sudan's treatment of its western and southern regions has come from many corners -- from college campuses, political candidates, human rights groups, aid workers, even states themselves. Not much progress, for all of that:
► The western region, Darfur, remains a humanitarian-aid disaster, as posted just days ago. Moreover, the current suspension of outright civil war in that region (in light green on the map at left) seems to have a rather short fuse.
► The warrant issued in March 2009 by the International Criminal Court, for the arrest of Sudan's President on charges of genocide and other atrocities in Darfur, remains unfulfilled. Indeed, it is flouted not only by its target, Omar al-Bashir, but also by the African Union, the regional organization through which some of Bashir's fellow leaders have promised him cover against the global court.
► Meanwhile, concerns mount that the government will put off a Southern Sudan independence referendum, which a 2005 peace agreement set for January 2011. Yesterday, according to the Associated Press, a local leader predicted "the collapse of a peace accord that ended a war that killed more than 2 million people if it stalls" the election, "which could turn the arid region," in red on the map at left, "into the world's newest nation and split Africa's largest country in two."
That's the text.
Why such disarray?
Why no change given the apparent consensus, at least in the West, that the Darfur conflict needs to come to an end?

Given further apparent consensus that the Southern Sudan peace agreement should be honored?

In short, what's the subtext?

In an article published this week, the Wall Street Journal's Jess Bravin connected dots that may answer some of these questions.

Reporting from Guantánamo Bay, Cuba, on a military commission's recommendation that "former al Qaeda cook Ibrahim al-Qosi" be sentenced to 14 years in prison, Bravin wrote:

The U.S. has been working with the Sudanese government to repatriate detainees from Guantanamo Bay, according to evidence presented ....

Indications are that upon imposition of sentence, Qosi will be repatriated to Sudan, along with 9 other Sudanese men detained at Gitmo. Adduced, Bravin wrote, was a letter which said:

'Sudan is ready to cooperate with President Obama in his effort to close down the Guantanamo facility ...'

Bravin connected this readiness to cooperate to Bashir's continuing at-large status. Experts he contacted -- Juan E. Méndez and IntLawGrrls' own guest/alumna, Mary Ellen O'Connell, disagreed on whether including Gitmo in the Sudan/ICC mix was a good or bad idea.

Truth is, given the way that countries interact, conflation of the 2 is probably inevitable. So too the add-on of concerns about the on-the-ground situation in Darfur -- even apart from consideration of the ICC charges. So three the add-on of concerns about what's up with Southern Sudan.

There's yet a 4th add-on, implicit but not quite overt in these Guantánamo revelations: Sudan's been a linchpin in counterterrorism at least since the days that the government tolerated Osama bin Laden's presence there, so that the United States and its allies are loathe to dismiss out of hand any aid the Sudanese government gives to anti-Qaeda efforts.

Kudos to Bravin for bringing subtext to light.

Time now for people who care to push the United States -- and other countries with clout, in the Security Council or elsewhere -- squarely to confront the complex of issues related to policy on Sudan.

'Nuff said

(Taking context-optional note of thought-provoking quotes)

Comparative sideglances can sometimes aid us in deciding not only what we should do, but what we should not do. A notable example: In the 'Steel Seizure Case' decided by the U. S. Supreme Court in 1952, Justice Jackson, in his separate opinion, pointed to features of the Weimar Constitution in Germany that allowed Adolf Hitler to assume dictatorial powers. Even in wartime, Jackson concluded, the U.S. President could not seize private property (in that case, the steel mills). Such a measure, in good times and bad, the Court held, required congressional authorization.
At the time Justice Jackson cast a comparative sideglance at Weimar Germany, the United States itself was a source of 'negative authority' abroad. The Attorney General pressed that point in an amicus brief for the United States filed in Brown v. Board of Education, the public schools desegregation case decided in 1954. Urging the Court to put an end to the 'separate but equal doctrine,' the Attorney General wrote:
'The existence of discrimination against minority groups in the United States has an adverse effect upon our relations with other countries. Racial discrimination . . . raises doubts even among friendly nations as to the intensity of our devotion to the democratic faith.'

-- U.S. Supreme Court Justice Ruth Bader Ginsburg on "The Value of a Comparative Perspective in Constitutional Adjudication," in what SCOTUSblog's Lyle Denniston termed "a rare commentary by a member of the Supreme Court on Senate hearings for a potential colleague." He refers, of course, to the broadsides that some Senators aimed at nominee Elena Kagan (prior post). Ginsburg's comments were part of a speech she delivered yesterday at the XVIIIth International Congress of Comparative Law, about which IntLawGrrl Afra Afsharipour posted earlier this week. (hat tip: Jess Bravin) (The role of foreign context in the school desegregation litigation is, incidentally, a key aspect of the scholarship of IntLawGrrl guest/alumna Mary Dudziak.)

An interesting added note in Ginsburg's full speech, available here: her reference to judges' consultation of "any number of legal blogs." Hmmm....

Under the bus

I would not characterize myself using Professor Koh’s categories, which I do not find particularly helpful in thinking about the issues involving foreign or international law that are likely to come before the Court. I have never used these terms for any purpose.

That's the written response of Solicitor General Elena Kagan (above left) to the query below by U.S. Senator John Cornyn (R-Texas), purportedly based on articles by Harold Hongju Koh (below right), formerly Yale Law Dean and now (following the protracted confirmation fight chronicled here) the State Department's Legal Adviser:

As described by Professor Koh, are you a transnationalist or a nationalist? Have you ever previously expressed your position on this question? What did you say?

These were among many written questions that Cornyn, Tom Coburn (R-Okla.), and other Senators posed in the runup to committee and full-Senate votes -- starting perhaps as early as today -- on whether to confirm Kagan as the next Associate Justice of the Supreme Court.
(Meanwhile, Robert Barnes reported yesterday in the Washington Post of Senator Coburn's complaint in a letter to the current junior Justice, Sonia Sotomayor. Coburn contended that the observation in an opinion for the Court Sotomayor joined -- that virtually no other country permitted juvenile life-without-parole sentences -- "'conflicts with your pledge to the Judiciary Committee and the American public 'not to use foreign law to interpret the Constitution.'")
Kagan's written response differs markedly from Kagan's "qualified defense" of foreign and international law, as I characterized her oral answers during committee hearings earlier this month.
Yet it appears consistent with others among Kagan's written responses (available in full here), which were released Friday. As detailed by the Wall Street Journal 's Jess Bravin, the responses place considerable distance between Kagan and certain schools of legal thought, among them critical legal studies and legal realism.
Even as the responses throw those theories under the bus, they embrace Justice Oliver Wendell Holmes, Jr. (below left) as the "one Justice in the last 100 years whose judicial philosophy has been most influential on the Court" -- and in so doing, gloss over linkages between Holmes and legal realism.
Contradiction is also inherent in the question and response quoted at the top of this post.
Cornyn's battery of questions concluded a long, interpretive passage about "-isms" and "-ists." The passage effectively relegates the "transnational" and the "national" to the status of movements that demand the faith of their disciples, rather than that of descriptions of reality-based phenomena. Too bad Kagan's response eschewed challenge of the question's premise in its haste to disown the "-ism" that the question presumes.

'Nuff said

(Taking context-optional note of thought-provoking quotes)

'[W]hat you are suggesting is that the courts who created corporations as persons, gave birth to corporations as persons, and there could be an argument made that that was the Court's error to start with, ... the fact that the Court imbued a creature of State law with human characteristics.'

-- Sonia Sotomayor (above right), posing the question that appears at page 33 of this transcript of the 1st oral argument in which she participated as an Associate Justice of the U.S. Supreme Court. (Here is audio of the September 9 argument in that campaign spending case, Citizens United v. Federal Election Commission). Jess Bravin plumbed the possible implications of her query in this article in the Wall Street Journal (hat tip to SCOTUSblog); he further observed that "Sotomayor may have found a like mind in Justice Ruth Bader Ginsburg" (below left), who evoked the American Declaration of Independence when she said, even earlier in the argument (transcript p. 4):

'A corporation, after all, is not endowed by its creator with inalienable rights.'

Ways that any rethinking of the legal personality of the corporation might affect subfields of international law -- in particular, the field of corporate responsibility -- deserve pondering.