Guest Blogger: Laura Dickinson

It's IntLawGrrls' great pleasure to welcome Laura Dickinson (left) as today's guest blogger.
Laura is the Foundation Professor of Law and Faculty Director of the Center for Law and Global Affairs at Arizona State University Sandra Day O'Connor College of Law.
She joined the ASU law faculty in 2008, having taught previously at the University of Connecticut School of Law. She was a Visiting Research Scholar and Visiting Professor in the Law and Public Affairs Program at Princeton University in 2006-2007.
An expert on human rights, national security, foreign affairs privatization, and qualitative empirical approaches to international law, Laura is the author of Outsourcing War and Peace (2011). This just-published book examines the privatization of military, security, and foreign aid functions of government and its impact on core public values.
During the Clinton Administration, Laura served as a senior policy adviser to Harold Hongju Koh when he was Assistant Secretary of State for Democracy, Human Rights, and Labor. Before that, she clerked for U.S. Supreme Court Justices Harry A. Blackmun and Stephen G. Breyer and for Judge Dorothy Nelson of the U.S. Court of Appeals for the Ninth Circuit. A term member of the Council on Foreign Relations and and co-organizer of a Collaborative Research Network on Empirical Approaches to International Human Rights Law, convened under the auspices of the Law & Society Association, Laura is also a member of the Executive Council of the American Society of International Law. Her guest post below sets forth the call for papers for an ASIL initiative, the Research Forum for which she serves as a 2011 co-chair.
Heartfelt welcome!

Paris in America in Paris, today

A distinguished group will examine Paris in America in Paris this afternoon, at a session this 'Grrl regrets having to miss.
Featured will be 2 IntLawGrrls guests/alumnae -- Professor Mireille Delmas-Marty (below left), holder of the Chair of Comparative Legal Studies and Internationalization of Law at the Collège de France de Paris, where the colloquium will occur, and Pittsburgh Law Professor Vivian Grosswald Curran (below, near right) -- as well as U.S. Supreme Court Justice Stephen Breyer (bottom left).
The program will begin at 3:30 p.m. at Amphithéâtre Marguerite de Navarre at the Collège, located at 11, place Marcelin-Berthelot.
Inspiring the session is the English-edition title of an 1863 book by Édouard Laboulaye, Mireille (left) explained in an interview published at page 504 of n the February 17, 2011, edition of Recueil Dalloz. Published under the pseudonym René Lefebvre, Laboulaye's Paris in America went through 35 French and 8 English editions. It is a celebratory study of American constitutionalism -- no coincidence then that, as Mireille noted, Laboulaye, in his day an adminstrator of the Collège de France, "contributed actively, along with the sculptor Bartholdi, to the realization of the Statue of Liberty."
Mireille challenged her interviewer's implication that comparative law might not provide a useful platform for study of contemporary democracies (my translation):

I would not say that comparative law is a 'subaltern' discipline; to the contrary, I believe that it is indispensable in an era in which the interdependence of states has become so strong that the interactions among diverse national and regional systems lie at the heart of the phenomena of the internationalization of law. ... Even constitutional judges, presented with difficult or undecided questions, have a need for comparative law.

Acknowledging that consultation by Breyer and colleagues on the Court had provoked controversy within the United States, Mireille stated:

Paradoxically, this controversy demonstrated that, in this time of globalization, comparative law is on the front lines in democracies.

This afternoon's program thus will begin with a tribute marking the bicentennial of the birth of Laboulaye. It's on that subject that Vivian will speak. Joining her on the panel will be Professor Jean-Louis Halpérin of Ecole normale supérieure; and Professor Bénédicte Fauvarque-Cosson (far right), of Université de Paris II and secretary-general of the Société de législation comparée. Olivier Dutheillet de Lamothe, conseiller d’État and former member of the Conseil constitutionnel, will moderate.
Commenting on the transition from the 19th to the 21st century will be Columbia Law Professor George Bermann, President of the International Academy of Comparative Law.
Finally, a session titled "Le juge constitutionnel et la démocratie" will mark the French publication of Justice Breyer's latest book, titled La Cour suprême, l'Amérique et son histoire in French, and Making Our Democracy Work: A Judge's View in English. A central theme of the book, as Mireille described it to her Recueil Dalloz interviewer:

Even if he remains optimistic, Breyer recognizes that the support of the public is never guaranteed. The relation between the constitutional judge and democracy is always susceptible to reinvention.

Taking part in a discussion of the book's themes will be Justice Breyer; Mireille; Guy Canivet of the Conseil constitutionnel; and Antoine Garapon, secretary-general of the Institut des hautes études sur la justice. Senator Robert Badinter, formerly President of the Conseil constitutionnel, will moderate.
Admission is free and open to the public.

Extraterritoriality in flux?

In a just-published ASIL Insight, our colleague Paul B. Stephan sees more than securities laws at stake in the recent U.S. Supreme Court trimming of extraterritoriality.

Stephan, both the John C. Jeffries, Jr., Distinguished Professor of Law and the Elizabeth D. and Richard A. Merrill Professor of Law at the University of Virginia, deftly detailed Justice Antonin Scalia's opinion for the 5-member majority in Morrison v. National Australia Bank Limited (June 24, 2010). (credit for below left photo) Other thought-provoking discussions of this decision were posted here, here, here, and here at Opinio Juris.

In Morrison, the Court affirmed dismissal of a lawsuit alleging civil fraud in violation of § 10(b) of the Securities and Exchange Act of 1934 and its implementing Rule 10b-5. The suit, to quote Stephan's Insight, "involved only foreign plaintiffs, securities issed by a foreign company, and transactions in those securities that took place exclusively in a foreign country." Scalia's opinion underscored that there is a presumption against extraterritoriality, one that requires "Congress to clearly indicate when it wanted its rules to apply to foreign conduct."

Stephan termed the decision "a firm and unambiguous rebuke" of the tendency by some lower courts to give securities laws greater extraterritorial reach. That pronouncement pretermits the contrary viewpoints of the 3 remaining Justices (Sonia Sotomayor did not participate): Stephen G. Breyer, in a separate opinion that suggested the suit yet might go forward under other federal statutes, concurred only in part, while John Paul Stevens and Ruth Bader Ginsburg concurred only in the judgment and not at in the majority's reasoning; indeed, their joint opinion opened with the declaration that they

would adhere to the general approach that has been the law in the Second Circuit, and most of the rest of the country, for nearly four decades.

Nonetheless, the pronouncement is accurate as a matter of counting current Court noses.

As interesting as the description of the judgment is Stephan's additional observation. He rightly wrote that

one must wonder what Morrison implies about other statutes.

Particularly noted is the means by which noncitizen plaintiffs have sought relief in U.S. federal courts for torts committed in violation of the law of nations or U.S. treaties. That means, of course, is Alien Tort Statute (prior IntLawGrrls posts). Alien Tort cases have involved events in all corners of the earth. "The Justice Department in several briefs has argued that the presumption against extraterritoriality applies to this statute," Stephan wrote (citing this 1 U.S. amicus brief, which dates from the 2d term of President George W. Bush). The Insight adds that "[s]cholarly support exists" for such a position. All may be tested soon: Stephan noted that the question's presented in Talisman Energy (photo credit), an Alien Tort case involving the oil field in Sudan, which the Supreme Court has been asked to review.

Another thought jumps to mind:

Any chance that a Court cutback campaign might reach to a sector in which extraterritoriality has grown steadily, with judicial approval, in the years of the so-called wars on drugs and terror? That is, to extraterritorial criminal jurisdiction?

Court OKs counterterrorism tool

Yesterday the U.S. Supreme Court upheld a criminal ban on "material support" of "terrorism" first placed in the Federal Code in the 1990s.
Plaintiffs in Holder v. Humanitarian Law Project had argued that to include things like "expert advice" in the list of punishable "support" violated the 1st Amendment. Their bid for a declaratory judgment to that effect was rebuffed by the 6-member majority, which interpreted the ban to cover advice given in "connection" with a group whom the Secretary of State has designated a Foreign Terrorist Organization. The Opinion of the Court by Chief Justice John G. Roberts, Jr. stressed that the ruling was not intended to include speech that -- though it might favor goals also favored by such a group -- was made independently of any such group.
Justice Stephen G. Breyer read parts of his dissent from the bench. In his view, the majority deferred too much to the political branches, and thus gave short shrift to its constitutional duty to protect individual liberties. Joining his opinion were Justices Ruth Bader Ginsburg and Sonia Sotomayor (right). The latter joinder deserves particular note, for it marks a break by the newest Justice (herself a former prosecutor) from a counterterrorism policy of the President who nominated her.
The attorney who argued the case for the United States this past February (transcript here) is the subject of the post below: President Obama's current nominee to the bench, Solicitor General Elena Kagan.
My own take on the decision is here, published at The New York Times' "Room for Debate."

'Nuff said

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

To my knowledge, and I have spoken to numerous jurists and architects worldwide, no other Supreme Court in the world — including those, such as Israel’s, that face security concerns equal to or greater than ours — has closed its main entrance to the public. And the main entrances to numerous other prominent public buildings in America remain open. I thus remain hopeful that, sometime in the future, technological advances, a Congressional appropriation, or the dissipation of the current security risks will enable us to restore the Supreme Court’s main entrance as a symbol of dignified openness and meaningful access to equal justice under law.

-- Justice Stephen G. Breyer, joined by Justice Ruth Bader Ginsburg, in the Statement Concerning the Supreme Court’s Front Entrance they released yesterday. As is apparent from this final paragraph, the 2 invoked global context in explaining opposition to the decision to close the marble-stepped main entryway of the United States' highest court. From today on, visitors must enter at the much less august side door.

Read On! Ordering Pluralism

(Read On! ... occasional posts on writing we're reading) Shameless self-promotion, I didn't realize it was already on the market, my most recent translation: Ordering Pluralism. A Conceptual Framework for Understanding the Transnational Legal World (2009) by Collège de France Professor Mireille Delmas-Marty (right) (prior IntLawGrrls posts).
Better than the jacket blurb you'll find by following the link is this excerpt from the preface by U.S. Supreme Court Justice Stephen G. Breyer:

This book ... helps us understand how law among nations and beyond single nations develops through cross-referencing, through efforts to harmonize, and through the creation of hybrid rules of substance and procedure. It helps us understand where this law develops, regionally or internationally. And it helps us understand the significance of the temporal leads and lags created as this law develops over time. In a word, the book helps us understand, talk about, and evaluate what is happening before our eyes.

Bonne lecture!

ABA to honor Zimbabwean lawyers

This coming Saturday, August 1, at a luncheon meeting in Chicago, the Rule of Law Initiative of the American Bar Association will honor Zimbabwe Lawyers for Human Rights with its 2009 Rule of Law Award.
The Zimbabwean group -- a public interest litigation organization operating in one of Africa's most treacherous environment's for human rights defenders -- is being recognized for its efforts at advancing the rights of persons in the country. Its impressive portfolio includes:
► Representing indigent individuals who have been illegally denied citizenship;
► Providing emergency legal aid to detained human rights defenders;
► Training legal practitioners, teachers, and traditional leaders on human rights; and
► Preparing lawyers for a future transitional justice project.
In addition to honoring the courageous lawyers and advocates who protect human rights in Zimbabwe, the giving of this award also provides an opportunity to reflect upon the state of human rights in that country in recent years:
► In June 2008, the U.N. Security Council condemned Zimbabwe's intimidation of political opponents, which resulted in the deaths of opposition activities and displacement of thousands. Despite the creation of a coalition government between President Robert Mugabe's Zanu-PF and the Movement for a Democratic Change leader earlier this year, Zimbabweans continue to struggle against an oppressive Mugabe regime in their quest to realize their human rights.
► On June 18, 2009, four members of the nongovernmental organization Women of Zimbabwe Arise were detained by police for peacefully demonstrating in commemoration of World Refugee Day. The women were assaulted while in custody, and then denied medical treatment for their injuries.
► On July 13, 2009, Mugabe supporters disrupted a national conference to draft a new Constitution, which would include provisions to curtail executive power.
Established in 1994, the Rule of Law Award is granted to leaders and countries that take "significant steps towards implementing democratic and market reforms" on the domestic level. Past award recipients of the Rule of Law Award include Pakistan's lawyers and judges who protested that country's purging of its judiciary; U.S. Supreme Court Justices Stephen Breyer and Anthony M. Kennedy; and Nataša Kandić, Founder and President of the Humanitarian Law Center based in Belgrade, Serbia.
Heartfelt congratulations to the courageous members of Zimbabwe Lawyers for Human Rights and their peers!

Inter-national judicial conversation

Asked to explain judicial receptivity to international law, Judge Guy Canivet (pictured, middle) of the Conseil constitutionnel spoke of values; that is, the role of the judge as the "bearer of the value of justice," of the "value of the democratic quality of the state." That's the difference between U.S. and French judges, interjected U.S. Supreme Court Judge Stephen Breyer (2d from left): the French "start with principles," while the Americans "start with concrete problems." "Yes, I worry about those things too," Breyer continued. "When? When I have a case that calls for it." So began this week's conversation between 2 countries' high court judges at Cardozo Law School in New York. Discussion touched on topics as varied as executive detention and the legal status of embryos, as AIDS and universal jurisdiction. Posing questions were Cardozo's Michel Rosenfeld (far right) and Mireille Delmas-Marty (far left), Professor of Comparative Legal Studies & the Internationalization of Law at Collège de France.
The public session capped a 2-day private roundtable meeting of Delmas-Marty's brainchild -- Réseau ID, the Franco-American Network on the Internationalization of Law, which 1st met in Paris last year. Participants included a French ambassador and other French judges (from not only the Conseil constitutionnel but also the Conseil d'État); U.S. Court of Appeals Judge William A. Fletcher; former Solicitor General Charles Fried; Emmanuelle Jouannet, Vivian Grosswald Curran, George Bermann, Harold Hongju Koh, and Jonathan Wiener; IntLawGrrls Diane Marie Amann (aka Grace O'Malley), Hélène Ruiz Fabri (aka Olympe de Gouges), Naomi Norberg (aka Anna Koransky, 2d from right as translator extraordinaire for the public event).
A 2008 meeting of the Réseau, in Paris, is contemplated. We'll always have New York.