Latest Scholarship

January 20, 2017

Serving as Visiting Scholar at National Chiao-Tung University in Taiwan

I had the honor of serving as a visiting scholar at National Chiao-Tung University, Taiwan during the week of January 8th. My visit was coordinated by Professor Chien-Chung Lin, who has twice visited UC Davis School of Law to present papers at the American Society of Comparative Law (ASCL), Younger Comparativists Committee (YCC) Workshop on Comparative Business and Financial Law. Taiwanese corporate law scholars such as Professor Lin have been doing excellent work especially in the area of comparative corporate law, so I was very much looking forward to interacting with some of them.

I began my visit with a fabulous lunch organized by Professor Lin and our own UC Davis JD student, Oscar Yang (himself a 2016 graduate of our LLM program). Oscar and Professor Lin had graciously invited leading Taiwanese lawyers for the lunch, including Prosecutor Jawyang Huang, Taipei District Prosecutors Office. Mr. Huang has been a visiting scholar at Yale University School of Law and was Oscar's supervisor in the Office of Trade Negotiations, in charge of WTO dispute settlement cases. We were joined by two of Oscar's former colleagues who were both fabulous company, Ms. Jenny Van, Senior Legal Adviser in Office of Trade Negotiations and Mr. Jason Lai, Secretary to the Director-General of Bureau of Foreign Trade.  It was a terrific lunch at one of Taipei's most popular restaurants, Din Tai Fung. After the lunch Mr. Huang gave me a fascinating tour of the Taipei Judicial Building, where I was able to observe a few trials that were being conducted. The efficiency and order at the judicial building was quite impressive.

After the first day in Taipei, Professor Lin took me to Hsinchu, one of the educational centers of Taiwan. The city has several prestigious universities, including National Chiao Tung University and National Tsing Hua University. Hsinchu is also an economic and technology hub in Taiwan with an impressive science and technology industrial park. The science and technology park is home to hundreds of high technology companies including world-renowned firms in the semiconductor space such as TSMC and UMC. Professor Lin gave me a tour of the technology park and given my prior corporate practice experience in the semiconductor space I was quite excited to see the place!

In Hsnichu, I gave three lectures at the two law schools there.

  1. Redefining Corporate Purpose: An International Perspective, at the Institute of Law for Science & Technology, College of Technology Management, National Tsing Hua University in Hsinchu, Taiwan.
  2. Deal Structure and Minority Shareholders, at the School of Law at National Chiao-Tung University, Taiwan
  3. Legal Transplants in the Law of the Deal: M&A Agreements in India at the School of Law at National Chiao-Tung University, Taiwan


Lecturing at NTHU

My visit to National Tsing Hua University was coordinated by Professor Robert Tsai, who is trained as an attorney in both Taiwan and the U.S. The lectures were well-attended, and the audience of professors and law students asked excellent questions.

I also had the opportunity to visit the Taiwan Stock Exchange to learn more about the significant corporate governance initiatives undertaken in Taiwan. I had an informative meeting at the Taiwan Stock Exchange with Mr. Joe Tsun Cheng (Senior Vice President, Corporate Governance Department) and Ms. Tracy Chen (Associate, Corporate Governance), as well as meeting Mr. Lih Chung Chien, Senior Executive Vice President of the Taiwan Stock Exchange. At the meeting we exchanged views on corporate governance initiatives undertaken in Asia, and I detailed some of my scholarly work on the trajectory and possible outcomes of the corporate governance reforms undertaken in India over the last decade. I really enjoyed the intellectual engagement with the professors, lawyers and law students I had the privilege to meet.

Professor Lin had also kindly arranged many opportunities for me to experience the beauty and culture of Taiwan, including visits traditional tea houses, temples and the CKS Memorial Hall and Liberty Square, an afternoon at beautiful hot springs outside of Taipei, a culinary adventure with law students at one of Taipei's fabulous night markets, a tour of the National Palace Museum, several informative walks around the different districts in Taipei, and more delicious meals than I can count.  I could easily have spent weeks enjoying all that Taiwan has to offer from its vibrant coffee culture to its elegant tea houses and lush country side, all topped off by the generous hospitality and friendliness of its people.

If it is not already clear, the trip to Taiwan was truly inspiring, and I look forward to future visits!

January 20, 2017

The UK Supreme Court’s Landmark Judgment Belhaj v. Straw: A View From the United States

Cross-posted from Just Security.

On Tuesday, the Supreme Court of the United Kingdom gave its judgment in Belhaj v. Straw and Rahmatullah v. Ministry of Defence, two human rights cases brought against UK officials in UK courts. Plaintiffs did not claim that UK officials were the main actors in the alleged human rights violations, which included unlawful detention, rendition, and torture. Rather, plaintiffs claimed that UK officials had assisted other countries-principally, the United States and Libya-in committing such violations. The UK officials argued that a court could not decide the assistance claims without ruling on the legality of other countries' actions and that the cases should therefore be dismissed on grounds of state immunity or under the foreign act of state doctrine. But the UK Supreme Court unanimously rejected these arguments. This means that the claims may proceed to trial where the actions of the United States, Libya, and other countries may be reviewed.

Lord Mance gave the leading judgment, with concurring judgments by Lord Neuberger and Lord Sumption. The state immunity question was whether the suits against UK officials indirectly impleaded foreign states because, in order to maintain their claims against the former, the plaintiffs would have to show that the latter acted unlawfully. The act of state question was whether an English court should abstain from adjudicating upon sovereign acts committed by a foreign state, even outside its own territory.

How does the reasoning in Belhaj compare to the approach taken in the United States? What insights might we derive from the UK Supreme Court's treatment of these areas of law and the role of the judiciary in adjudicating questions that implicate international relations? 

State Immunity

The UK Supreme Court found the state immunity question to be quite straightforward. No foreign states had been directly impleaded because no claims had actually been brought against them. No foreign states had been indirectly impleaded "because the legal position of the foreign states" would not be affected by the suits. Para. 31 (emphasis added). The Court distinguished past cases in which foreign states were indirectly impleaded because the claims involved property in which the states had an interest. "The present appeals involve no issues of proprietary or possessory title. All that can be said is that establishing the appellants' liability in tort would involve establishing that various foreign states through their officials were the prime actors in respect of the alleged torts." Para. 29. Such "reputational" harm was not sufficient. Para. 29. As Lord Sumption put it in his concurring opinion: "No decision in the present case would affect any rights or liabilities of the four foreign states in whose alleged misdeeds the United Kingdom is said to have been complicit. The foreign states are not parties. Their property is not at risk. The court's decision on the issues raised would not bind them." Para. 197.

Although the US Foreign Sovereign Immunities Act (FSIA) differs substantially from the UK State Immunity Act, the approach of the UK Supreme Court on this question was similar to what one would expect in the United States. In Republic of Philippines v. Pimentel, 553 U.S. 851 (2008), the US Supreme Court held that a suit to determine the ownership of property allegedly stolen by Philippine President Marcos could not proceed because the Philippines had a legal interest in the property. This is equivalent to the indirect impleading of a foreign state that the UK Supreme recognized is barred under the State Immunity Act. But in Samantar v. Yousuf, 560 U.S. 305 (2010), the US Supreme Court held that a suit against a foreign official is not necessarily a suit against a foreign state to which state immunity attaches. It would follow a fortiori that a suit a against a domestic official is not necessarily a suit against a foreign state to which state immunity attaches, which is essentially what the UK Supreme Court held in Belhaj. (Parenthetically, it is worth remembering that, in contrast to the US Supreme Court's interpretation of the FSIA in Samantar, the House of Lords has interpreted the State Immunity Act as extending state immunity to foreign officials acting in that capacity. See Jones v. Saudi Arabia, paras. 31 & 69.)

Act of State Doctrine

The foreign act of state doctrine in the United Kingdom, on the other hand, has historically been quite different from the act of state doctrine in the United States. To give two obvious examples: (1) one strand of the UK act of state doctrine is not limited to acts performed within the foreign sovereign's own territory, see Buttes Gas and Oil Co. v. Hammer (No. 3) [1982] AC 888, while the US act of state doctrine is so limited; and (2) the UK act of state doctrine contains a public policy exception, see Oppenheimer v. Cattermole [1976] AC 249; Kuwait Airways Corp. v. Iraqi Airways Co. [2002] 2 AC 883, which the US act of state doctrine does not. Each of these differences played a key role in Belhaj.

The three reasoned judgments did not entirely agree about how to organize the past cases-Lord Mance divided the foreign act of state doctrine into three types, Lord Neuberger into four, and Lord Sumption into two-nor did they agree about the proper terminology. But in the end, all members of the Court agreed on the key points and on their application to these cases. Certain strands of the UK act of state doctrine are territorially limited (specifically the first two types identified by Lords Mance and Neuberger, which Lord Sumption called the "municipal law act of state doctrine"). These strands were thus inapplicable to those claims that involved acts-particularly those of the United States-outside the foreign sovereign's own territory. But each of the judgments also identified a strand of the act of state doctrine that is not territorially limited (specifically the third type identified by Lords Mance and Neuberger, which Lord Sumption called the "international law act of state doctrine"). This strand originated in Buttes Gas and applies to cases "where an issue is said to be inherently unsuitable for judicial determination by reason only of its subject matter." Para. 43 (quoting Shergill v. Khaira [2015] AC 359).

Critically, however, Lords Mance, Neuberger, and Sumption agreed that each strand of the foreign act of state doctrine was subject to a public policy exception and that the exception should apply in these cases. (Lord Mance preferred to view the exception as a limitation on the ambit of the doctrine, but did not think the distinction between ambit and exception was critical. Para. 89.) Thus, Lord Mance wrote: "The critical point in my view is the nature and seriousness of the misconduct alleged in both cases before the Supreme Court, at however high a level it may have been authorized. Act of state is and remains essentially a domestic law doctrine, and it is English law which sets its limits. English law recognizes the existence of fundamental rights, some long-standing, others more recently developed." Para. 98. Lord Neuberger similarly reasoned that, "assuming that the claimants were detained, kidnapped and tortured as they allege, the public policy exception would apply." Para. 168. And Lord Sumption said that the foreign act of state doctrine could not be applied to detention and torture because both "exhibit the same combination of violation of peremptory norms of international law and inconsistency with principles of the administration of justice in England which have been regarded as fundamental since the 17th century." Para. 278.

Differences in Approach Among the Judgments

Despite their agreement on the most important aspects of the case, there were some notable differences in approach. Lord Mance thought that "[t]he concept of foreign act of state needs to be disaggregated, or broken down, and approached at a more particular level of enquiry." Para 11(ii). For him, too much generalization "blurs the distinctions between different types of foreign act of state" and "impedes the important task of identifying the scope and characteristics of each type of foreign act of state." Para. 40. Lord Sumption was more inclined to generalize: "It is always possible to break down the cases into different factual categories, and deconstruct the law into a fissiparous bundle of distinct rules. But the process is apt to make it look more arbitrary and incoherent than it really is. I think that it is more productive to distinguish between the decisions according to the underlying principle that the court is applying." Para. 227. Lord Sumption's approach made him somewhat less likely to insist on all of the limitations to the act of state doctrine that might be found in past cases, for example the limitation of the territorial strands of the act of state doctrine to rights in property. See para. 231.

In approaching the question of public policy, the judgments also laid different emphases on domestic and international law. Lord Mance preferred to look "to individual rights recognized as fundamental by English statute and common law, rather than to tie them too closely to the concept of jus cogens." Para. 107. Lord Neuberger agreed that the public policy exception should "depend ultimately on domestic law considerations," but added that "generally accepted norms of international law are plainly capable of playing a decisive role." Para. 154. Lord Sumption, on the other hand, looked primarily to whether international law had been violated in deciding whether to apply the public policy exception, see paras. 249-80, though even he acknowledged that "the influence of international law does not mean that every rule of international law must be adopted as a principle of English public policy." Para. 257.

The three reasoned judgments also took different views on the relevance of foreign act-of-state decisions. Lords Mance and Sumption each discussed the US cases at length, see paras. 47-56, 209-212, as well as cases from Germany, France, and the Netherlands, see paras. 67-72, 201. Lord Mance cautioned that US law was "not necessarily transposable to English law," para. 57, but also said "we should be unwise not to take the benefit of it." Para. 57 (quoting Buttes Gas and Oil Co. v. Hammer (No. 3) [1982] AC 888). Lord Sumption disapproved of the flexible US approach expressed in Sabbatino, see para. 212, without mentioning the US Supreme Court's more recent decision in Kirkpatrick, which is rather less flexible. He seemed to prefer the "instructive" approach of the French and Dutch courts. Para. 201. But Lord Neuberger advised "great caution before relying on, let alone adopting, the reasoning of foreign courts in connection with the Doctrine." Para. 133. He found the US decisions "to be of very limited assistance." Para. 134.

Act of State as International Comity

One thing that all three judgments agreed on, however, was that the act of state doctrine is a doctrine of domestic rather than international law. Drawing a distinction with state immunity, Lord Mance noted early in his judgment that "foreign act of state in most if not all of its strands has been developed doctrinally in domestic law." Para. 7. Lord Neuberger wrote that "the Doctrine is purely one of domestic common law." Para. 118. And Lord Sumption added that "[t]he act of state doctrine . . . does not reflect any obligation of states in international law." Para. 261. As I have noted in other writing, the act of state doctrine is a doctrine of international comity rather than international law. I wrote there (p. 2077) that international comity "describes an internationally oriented body of domestic law that is distinct from international law and yet critical to legal relations with other countries."

The fact that a particular doctrine is based on international comity does not mean that it must give a decisive role-or indeed any role-to the executive branch; many comity doctrines, from the conflict of laws to the enforcement of foreign judgments to the doctrine of forum non conveniens, are administered entirely by courts (pp. 2132-40). With respect to the act of state doctrine, one US Court of Appeals has recognized an exception allowing the executive to waive the doctrine, see Bernstein v. Nederlandsche-Amerikaansche, 210 F.2d 375, 376 (2d Cir. 1954), but the US Supreme Court has never approved it and has rejected a broader role for the executive in determining when the doctrine applies. See W.S. Kirkpatrick & Co., Inc. v. Environmental Tectonics, Intern., 493 U.S. 400, 405, 408-09 (1990). Before we leave the three judgments in Belhaj, it is worth noting that each of them rejected the possibility that the act of state doctrine should apply whenever the Foreign Office indicated that the case would embarrass the United Kingdom in the conduct of its foreign relations. Lord Neuberger was willing to list this as his "possible fourth rule," para. 124, but found "little authority to support the notion that the fourth rule is part of the law of this country." Para. 132. Allowing the executive to dictate to the judiciary, he thought, "would be quite unacceptable." Para. 149. Lord Mance similarly saw "little attraction in and no basis for giving the Government so blanket a power over court proceedings." Para. 41. And Lord Sumption felt that allowing the act of state doctrine to turn on the degree of embarrassment to the government "would not be consistent with the accepted principles governing the relations between the courts and the executive in England." Para. 212.

The fact that a particular doctrine is based on international comity does mean that each country is free to shape the doctrine as it thinks best. Whether one feels that it is instructive to look to the experiences of other countries or not, the simple fact is that the act of state doctrine is quite different in different countries. In contrast to the United Kingdom, the United States does not recognize a non-territorial strand of the act of state doctrine and limits the doctrine to "the official act of a foreign sovereign performed within its own territory." W.S. Kirkpatrick & Co., Inc. v. Environmental Tectonics, Intern., 493 U.S. 400, 405 (1990). On the other hand, the US version of the doctrine has no public policy exception; if the act of state doctrine applies, a US court must accept its validity "[h]owever offensive to the public policy of this country" it may be. Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 436 (1964). Still, it seems likely that US courts would not recognize fundamental violations of human rights as acts of state to begin with. See Kadic v. Karadzic, 70 F.3d 232, 250 (2d Cir. 1995) ("we doubt that the acts of even a state official, taken in violation of a nation's fundamental law and wholly unratified by that nation's government, could properly be characterized as an act of state"). These differences among nations make the act of state doctrine a fascinating topic for comparative study. They also reinforce the point that the act of state doctrine is one of international comity rather than international law.

January 19, 2017

Professor Saucedo to Deliver Alice Cook Distinguished Lecture at Cornell

Professor Leticia Saucedo will deliver the Alice Cook Distinguished Lecture at Cornell University on April 13, 2017.

Saucedo will deliver a lecture titled, "The Legacy of the Immigrant Workplace: Lessons for the 21st Century Economy."

The Alice Cook Distinguished Lecture is organized by the ILR School of Cornell University. ILR is a leading college of the applied social sciences focusing on work, employment, and labor policy issues.

January 19, 2017

Professors Ikemoto and Lee to Speak at Stem Cell Research Policy and Ethics Symposium

January 10, 2017

The strangest thing happened at the AALS last week

I have attended the Association of American Law Schools annual meeting for many of the 17+ years I have been a law professor, but I experienced something at last week's annual conference in San Francisco that I had never before seen or heard, something that came as a pleasant surprise.   Attendees were actually talking about rural people and places--including in a plenary session on the future of the legal profession.

For more than a decade now, I have worked to establish as a sub-discipline what I call "law and rural livelihoods" (I've taught a seminar by that name for eight years), and my Legal Ruralism blog is part of that effort.  One of my overarching arguments is that most legal scholarship implicitly embraces an urban norm--and that some legal scholarship is explicitly urbanormative.  Yet in all my years of attending gatherings of law professors, I have consistently been the only person in the room talking about rural people and places--I've literally been the only person using the word "rural."  I've often joked that I'm the "rural lady," perhaps analogous to SNL's "church lady," a character with a one-track mind who keeps showing up and making the same overarching point. Over the years, this approach has attracted a lot of eye-rolling, ongoing marginalization.  But it has remained the case that rural people and places have been omitted from so many scholarly conversations about law--and from so many scholarly works on topics that, to my mind, have an obvious rural or spatial angle, e.g., reproductive justice, poverty.

So, imagine my surprise when, following the plenary on "Preparing a Diverse Profession to Serve a Diverse World," with key note by Brad Smith, President and Chief Legal Officer of Microsoft Corporation (and, incidentally, my boss at Covington & Burling London in 1992 and later my client, from 1996-98, when I returned to Covington and he was in house at Microsoft),  Lauren Robel of Indiana University School of Law asked the first question, which was essentially "what about rural?"  She noted that she had recently been in southern Indiana, which is quite rural, and that shortages of broadband and lawyers are two challenges plaguing the region.  She also referenced the recent NPR story about the "epic" shortage of rural lawyers, a story that quoted me and mentioned the work I have done on the rural lawyer shortage.  After Robel broke the ice with a reference to rural Indiana, several others referenced "rural" in the ensuing conversation.  This was interesting in part because Smith had, early in his talk, referenced a small town in southwest Virginia where Microsoft has a server farm, but he had not used the word "rural."  As the conversation unfolded, however, the word became part of the discussion in a way that seemed, well, natural.

This was somewhat similar to what had happened the day before in a discussion session in which I participated:   Community Development Law and Economic Justice--Why Law Matters.  About a dozen scholars were invited in advance to participate in this discussion, including me.  Because I don't "do" community development law or work as such, I assumed I was invited to participate because of my work on rurality, including rural poverty, thus implicating issues of economic justice.  Once I got the ball rolling by talking about my rural-focused scholarship, several other participants mentioned "rural," including "rural and urban," as in referencing the prospect of intra-regional CED collaborations and such.  (Let me be clear that this usually doesn't happen; when I'm on a panel talkig about "rural," I typically remain silo-ed as such).  I commented that I thought much of the attention to "rural and urban" was racially coded (though it is not necessarily accurate to conflate rurality with whiteness, it is a common phenomenon), as a way to get at cross-racial collaborations, which I very much support (indeed, cross-racial cooperation among low-income folks is a big focus of my scholarship right now).  I also joked that I had not heard as many mentions of "rural" in my entire 17 years of attending law prof. conferences as I had in that 1.75 hour-long session!  Perhaps colleagues in this session--where I was invited to the conversation because I am a ruralist--were humoring me. 

So, is this attention to rurality among legal educators the wave of the future?  or just a temporary dalliance, a moment of intrigue and curiosity, as we absorb the results of the 2016 election and the role that rural America apparently played in Trump's win?  I'm hoping for the former because mainstream (even liberal! highly educated! elite!) attention to rural issues and rural people might help us avert another electoral disaster in two years, or four.  

Cross-posted to Legal Ruralism.

January 3, 2017

UC Davis School of Law Faculty at AALS 2017

Faculty from UC Davis School of Law will have a prominent presence at the 2017 Association of American Law Schools (AALS) Annual Meeting in San Francisco this week.

Here is a list of King Hall-related faculty activities.

UC Davis School of Law Reception for Faculty, Staff, Alumni, and Friends

Thursday, January 5
6 pm - 8 pm
Powell Room, 6th Floor, Hilton

***

Programs with King Hall Speakers

**Wednesday, January 4**

Lisa Ikemoto
10:30 am - 12:15 pm
AALS ARC OF CAREER PROGRAM - Branching Out in Your Post-Tenure Career
Imperial B, Ballroom Level, Hilton

Lisa Pruitt
10:30 am - 12:15 pm
AALS DISCUSSION GROUP - Community Development Law and Economic Justice: Why Law Matters
Golden Gate 2, Lobby Level, Hilton

Chris Elmendorf
10:30 am - 12:15 pm
SECTION ON LAW AND THE SOCIAL SCIENCES - How Can Social Science Improve Judicial Decisionmaking?
Continental Parlor 2, Ballroom Level, Hilton

Alan Brownstein
1:30 pm  - 4:30pm
SECTION ON LAW AND RELIGION - Is Securalism a Non-Negotiable Aspect of Liberal Constitutionalism?
Continental Parlor 9, Ballroom Level, Hilton

Angela P. Harris
1:30 pm - 3:15 pm
POVERTY LAW, CO-SPONSORED BY SECTION ON LAW, MEDICINE AND HEALTH CARE - Food Justice as Interracial Justice
Continental Ballroom 5, Ballroom Level, Hilton

Aaron Tang
3:30 pm - 4:45 pm
SECTION ON LEGISLATION AND LAW OF THE POLITICAL PROCESS - New Voices in Legislation Works in Progress
Golden Gate 8, Lobby Level, Hilton

Kevin R. Johnson
6:30 pm               
Honored Guest at the Latino/a Law Professor's Dinner
Perry's Restaurant Embarcadero, 155 Steuart Street (between Mission and Howard)

**Thursday, January 5**

Leticia Saucedo
8:30 am - 10:15 am
SECTION ON LABOR RELATIONS AND EMPLOYMENT LAW, CO-SPONSORED BY IMMIGRATION LAW; BUSINESS ASSOCIATIONS; & CONTRACTS - Classifying Workers in the "Sharing" and "Gig" Economy
Golden Gate 4, Lobby Level, Hilton

Lisa Pruitt
8:30 am - 10:15 am
SECTION ON WOMEN IN LEGAL EDUCATION, CO-SPONSORED BY MINORITY GROUPS; & BALANCE IN LEGAL EDUCATION - Cultivating Empathy
Continental Ballroom 5, Ballroom Level, Hilton

Kevin R. Johnson
1:30 pm - 2:00 pm (Keynote address)
AALS COMMITTEE ON RECRUITMENT AND RETENTION OF MINORITY LAW TEACHERS AND STUDENTS - Making Room for More: Theorizing Educational Diversity and Identifying Best Practices in the Age of Fisher
Golden Gate 2, Lobby Level, Hilton

**Friday, January 6**

Madhavi Sunder
8:30 am - 10:15 am
SECTION ON INTELLECTUAL PROPERTY - Intellectual Property in Conflict or Concert with Community Values
Golden Gate 6, Lobby Level, Hilton

Anupam Chander
8:30 am - 10:15 am
SECTION ON INTERNATIONAL LAW - Implementing the Trans-Pacific Partnership: Challenges and Opportunities on the Road Ahead
Golden Gate 8, Lobby Level, Hilton

David Horton
10:30 am - 12:15 pm
SECTION ON COMMERCIAL AND RELATED CONSUMER LAW & CONTRACTS JOINT PROGRAM - Contracts, Commercial, and Consumer Law in Action
Continental Parlor 1, Ballroom Level, Hilton

Courtney Joslin
1:30 pm - 3:15 pm
SECTION ON SEXUAL ORIENTATION AND GENDER IDENTITY ISSUES - Setting the Post-Obergefell Agenda
Golden Gate 8, Lobby Level, Hilton

Darien Shanske
1:30 - 3:15pm
SECTION ON TAXATION - Fiscal Federalism: Balancing Tax Policies at the Federal, State, and Local Levels
Continental Parlor 1, Ballroom Level, Hilton

Kevin R. Johnson
1:45-3PM
Pre-tenured Law School Teachers of Color - Small Group Discussion about Scholarship
Golden Gate 4 & 5, Lobby Level, Hilton

Kevin R. Johnson
3:15 pm - 4:15 pm
PLENARY SESSION - Pre-tenured Law School Teachers of Color (Part I - Service: Challenge, Opportunity, and Passion; Part II - Teaching and Outsider Status)
Golden Gate 4 & 5, Lobby Level, Hilton

A TOAST TO LESLEY McALLISTER
5pm - 8pm
Location: UC Hastings
Details and RSVP info: http://facultyblog.law.ucdavis.edu/post/a-festschrift-for-lesley-mcallister.aspx

***

Other Faculty Roles in AALS

- Rose Cuison Villazor, Chair, Section on Minority Groups; Chair-Elect, Section on Immigration Law
- Afra Asharipour, Executive Committee Member, Section on Transactional Law & Skills; Executive Committee Member, Section on Law and South Asian Studies
- Jasmine Harris, Executive Committee Member, Section on Evidence; Executive Committee Member, Section on Law and Mental Disability
- Carlton Larson, Executive Committee Member, Section on Legal History

***

Additional Attendees from King Hall

Thomas W. Joo
Peter Lee
Evelyn Lewis
Brian Soucek
Carter "Cappy" White  

 

December 30, 2016

A Festschrift for Lesley McAllister

UC Davis School of Law is proud to co-sponsor a festschrift for King Hall's own Professor Lesley McAllister.

Here is the invitation and program information from the Center for Progressive Reform. The event will take place next week in San Francisco, where many legal scholars will be attending the Association of American Law Schools (AALS) Annual Meeting.

Tickets are not required, but RSVPs are strongly encouraged. You can RSVP here.

***

Friends,

Please join us from 5:00-8:00 pm on Friday, January 6, 2017 as we close out the holiday reception season with an event that will expand your thinking, rather than your waistline. 

UC Davis law professor Lesley McAllister has made an indelible mark on the field of environmental law. Unfortunately, she has been fighting a rare form of lung cancer for several years. On January 6, by the sidelines of the AALS annual meeting, we are convening a forum of influential scholars who contributed to her work, are inspired by her work, and benefit from her work. We hope you'll come be a part of it.

Lesley McAllister has been a volunteer Member Scholar of the Center for Progressive Reform (CPR), for the past 8 years. CPR, founded over 15 years ago by a few law profs who taught environmental and workplace health and safety law, is an advocacy organization through which law scholars work together to bring their voices out of academia into the policy arena in support of protective regulation.  

This event to honor Lesley McAllister will take place at the UC Hastings College of Law, 200 McAllister Street, San Francisco, just a few blocks from the AALS annual meeting. It is not an AALS event, so you do not need a ticket to attend. It starts at 5:00 pm, with a light reception from 5:00-6:00 pm. An hour-long program (see below) follows, and then there will be a bigger (i.e. more food & drink) reception from 7:00-8:00 pm. 

The evening is generously co-sponsored by UC Davis School of Law and the University of San Diego School of Law.

You can RSVP here. Thank you and Happy Holidays!

Robert R.M. Verchick
Board President, Center for Progressive Reform
Gauthier-St. Martin Chair in Environmental Law, Loyola University New Orleans
Senior Fellow in Disaster Resilience Leadership, Tulane University

PROGRAM

Welcome

  • Rob Verchick, CPR President, Gauthier-St. Martin Eminent Scholar and Chair in Environmental Law, Loyola New Orleans University
  • Lesley McAllister, Professor of Law, UC Davis

Introductory Remarks   

  • Madhavi Sunder, Senior Associate Dean for Academic Affairs and Martin Luther King, Jr. Professor of Law, UC Davis
  • Orly Lobel, Professor of Law, University of San Diego

Panel

  • Climate Change & Cap and Trade: William Boyd, Professor of Law & John H. Schultz Energy Law Fellow, University of Colorado
  • Environmental Law in Developing Countries: Benjamin Van Rooij, Professor of Law, UC Irving
  • Private Regulation / 3rd party Auditing: Jodi Short, Professor of Law, UC Hastings

Concluding Remarks 

  • Daniel Rodriguez, Dean and Harold Washington Professor of Law, Northwestern University      
  • Robert Kagan, Prof. Emeritus of Political Science and Law, UC Berkeley.
  • Lesley McAllister

Please RSVP here.

December 18, 2016

On the Protection of Cultural Heritage

Earlier this month, I spoke at an international gathering of national societies for the promotion of international humanitarian law organized by the International Committee of the Red Cross in Geneva. I spoke on protection of cultural heritage. These were my remarks.

4th Universal meeting of National IHL committees, December 1, 2016, Geneva -- Statement by Karima Bennoune, Special Rapporteur in the field of cultural rights

Honourable Chair, Excellencies, distinguished delegates, ladies, and gentlemen,

I am honoured to take the floor before this important gathering in my capacity as Special Rapporteur in the field of cultural rights.   My recent thematic report to the General Assembly concerned the intentional destruction of cultural heritage as a violation of human rights and I am pleased to have the opportunity to share with you some of my key findings.

Cultural heritage is significant in the present, both as a message from the past and as a pathway to the future. Viewed from a human rights perspective, it is important not only in itself, but also in relation to its human dimension. While specific aspects of heritage may have particular resonance for and connections to particular human groups, all of humanity has a link to such objects, which represent the "cultural heritage of all humankind." Cultural heritage includes tangible heritage, composed of structures and remains of historical, religious, or cultural value, and also intangible heritage made up of customs, beliefs, languages, artistic expressions and folklore.  Tangible and intangible heritage are interlinked and attacks on one are usually accompanied by assaults on the other.

The right of access to and enjoyment of cultural heritage forms part of international human rights law, finding its legal basis, inter alia in the right to take part in cultural life.  Cultural heritage is a fundamental resource for other human rights also, in particular, the rights to freedom of expression, freedom of religion, as well as the economic rights of the many people who earn a living through tourism related to such heritage, and the right to development.  The preservation and restoration of cultural heritage is also a critical tool for reconciliation and peace-building.

Given this importance of cultural heritage for human rights, I welcome the fact that, in its recent Resolution 33/20 (2016) on "cultural rights and the protection of cultural heritage," the Human Rights Council agreed that "the destruction of or damage to cultural heritage may have a detrimental and irreversible impact on the enjoyment of cultural rights."  The Council encouraged States to consider implementing the recommendations that I made to the General Assembly on these issues.

A special protection regime governs heritage protection in times of conflict. The core standards include the 1954 Hague Convention and the protocols thereto. The Hague Convention, requires States parties to respect cultural property and to refrain from any act of hostility directed against it or any use of it likely to expose it to such acts, subject only to imperative military necessity (art. 4).  The Second Protocol strengthens the rule by further limiting the military necessity exception.

I have heard worrying reports of violations of these provisions in recent conflicts. I call on states to recognize that any military necessity exception to the ban on targeting cultural property must be interpreted narrowly, taking into consideration the impact on cultural rights.  All military decisions resulting in the destruction of or damage to cultural heritage should be subject to close public scrutiny.

I note with concern that many States have not adhered to the 1954 Hague Convention and its Protocols, in particular the Second Protocol, which now has 69 parties, since the most recent accession by Norway. I was pleased to learn of the commitment that has been made for the first time by a permanent member of the Security Council, namely, the United Kingdom of Great Britain and Northern Ireland, to ratify the Second Protocol, and I look forward to the achievement of that important step. I call upon all permanent members of the Security Council to follow suit in the next two years so as to demonstrate collective leadership on this critical issue which is at the heart of meaningful peace and security.

In addition to tackling the role of States, attention must also be paid to the robust use of international standards such as article 19 of The Hague Convention - and developing other strategies - for holding non-State actors to account and preventing their engaging in destruction.

Individual criminal responsibility arises from serious offences against cultural heritage, which can rise to the level of war crimes or to crimes against humanity when carried out with discriminatory intent, and may also be evidence of intent to destroy a group within the meaning of the genocide convention. A human rights approach emphasizes accountability.  I welcomed the decision of the Office of the Prosecutor of the International Criminal Court to charge the destruction of cultural and religious sites as a stand-alone war crime for the first time in the case of Ahmad Al Faqi Al Mahdi which has recently resulted in a guilty verdict and 9-year sentence.  I endorse the conclusions in the Al Mahdi judgment that the crime in question aimed at "breaking the soul of the people of Timbuktu" and was of "significant gravity."  I very much hope to see similar prosecutions in future, and to that end I remind States of the vital need to collect and preserve evidence of any such crimes.

In the early twenty-first century, a new wave of deliberate destruction is being recorded and displayed for the world to see, the impact magnified by widespread distribution of the images. Such acts are often openly proclaimed and justified by their perpetrators and represent a form of cultural warfare being used against populations which I condemn in the strongest possible terms.  Such attacks represent an urgent challenge to cultural rights that requires rapid and thoughtful international response.

Acts of deliberate destruction are often accompanied by other grave assaults on human dignity and human rights, including acts of terrorism. They have to be addressed in the context of holistic strategies for the promotion of human rights, and peacebuilding.  Protection of cultural heritage must be included in the mandates of peacekeeping missions.  We must care about the destruction of heritage in conjunction with our grave concern for the destruction of the lives of populations. 

Acts of intentional destruction harm all, target freethinkers in majority groups and often disproportionately affect persons belonging to minorities. They contribute to intolerance and tensions between people, and deprive all humanity of the rich diversity of cultural heritage.

In responding to intentional destruction of cultural heritage today, it is critical to employ a human rights approach. Beyond preserving and safeguarding an object or a manifestation in itself, a human rights approach obliges one to take into account the rights of individuals and populations in relation to them.  It is impossible to separate a people's cultural heritage from the people itself and their rights.

A critical, related question concerns the protection of the defenders of cultural heritage who are at risk and who may even lose their lives in defence of cultural heritage, such as Samira Saleh al-Naimi, an Iraqi lawyer abducted and killed in September 2014 after denouncing destructions of religious and cultural sites by Daesh in her home city of Mosul, and many others who today continue to labour in obscurity and danger. We must not wait until we are mourning the deaths of at-risk cultural heritage defenders to rally to their cause.

People like them are cultural rights defenders. States must respect their rights and ensure their safety and security, but also provide them, including through international cooperation, with the conditions necessary to complete their work, including all needed material and technical assistance, grant them asylum when necessary and ensure that when displaced they are able to continue their work and to take part in the protection and reconstruction of their country's cultural heritage.

I also encourage the development and adoption of a fully gender-sensitive approach to the protection of cultural heritage and to the combating of its destruction, which should include promoting the inclusion of women cultural heritage experts in relevant forums and institutions.

A human rights approach also embraces prevention and the allocation of sufficient budgetary resources both at the national and international levels. Preventive action and education, especially for young people, on the importance of cultural heritage and cultural rights for all without discrimination, and the relevant norms of IHL, are vital. 

Let me conclude by stressing again how crucial it is to consider that destruction of cultural heritage is a human rights issue, including in times of conflict, when human rights law must be taken seriously as a necessary complement to international humanitarian law. When cultural heritage is destroyed, this bears important consequences for a wide range of human rights for current generations and those to come.  

Today, in our collective role as custodians of the past achievements of humanity, we are faced with a stark choice. Will we engage with cultural heritage in its diversity in such a way as to allow cultural rights to flourish and will we protect it, teach youth about it, learn from it and from the history of its destruction, and make use of heritage and its reconstruction to understand ourselves and find solutions to the grave problems that we face? Will we be up to the challenge of protecting the heritage of humanity? If the answer is no, the rights of current generations will be violated, and we will incur the scorn of future generations. Would we not prefer to bequeath a richer legacy? The intentional destruction of cultural heritage is a human rights issue. The approach to stopping it needs to be a holistic one, encompassing all regions, focused on both prevention and punishment, and targeting acts committed by both State and non-State actors, in conflict and non-conflict situations. We must not only respond urgently, but also take the long view.

Thank you.

December 13, 2016

Top 10 Immigration News Stories of 2016

Cross-posted from Immigration Prof Blog.

It has been a memorable year in U.S. immigration news.  Here is the ImmigrationProf top 10 immigration news items for 2016.

1.  The Election of Donald Trump as President of the United States

This was an easy pick.  During the 2016 Presidential campaign, Donald Trump took some tough immigration stances, including promising to "build a wall" along the U.S./Mexico border, railing on "criminals" coming to the United States from Mexico, advocating the creation of a "Deportation Force," and endorsing the "extreme vetting" of Muslim noncitizens seeking entry into the United States.  After all of that on the campaign trail, President-elect Trump appears to be softening his positions on immigration.

2.  United States v. Texas 

With an eight Justice Court (due to Justice Scalia's passing) deciding the challenge by Texas and 26 states to President Obama's expanded deferred action program, the Supreme Court was deadlocked 4-4 and let stand a lower court injunction barring implementation of the program in United States v. Texas.   The injunction virtually guarantees that President Obama's Deferred Action for Parents of Americans (DAPA) program will never go into effect.

Click here for an online symposium on the case. 

3.  BREXIT:  The United Kingdom Exits the European Union

With immigration and immigrants a major concern,  voters in the United Kingdom voted to leave the European Union.  The campaign was hotly contested but the aye votes carried the day.

4.  Maricopa County Voters Oust Sheriff Joe 

Maricopa County (Arizona)  Sheriff Joe Arpaio, famous for his zealous -- some might say overzealous -- efforts to enforce the U.S. immigration laws, lost his bid for reelection.  In 2016, Sheriff Arpaio also was charged with criminal contempt for numerous failures to comply with court orders in a lawsuit in which his sheriff's office was found guilty of racial profiling.

5. Jeff Sessions Tapped as New U.S. Attorney General

Jeff Sessions was named by President-elect Donald Trump to be his Attorney General.  He was elected to the U.S. Senate in 1996 and re-elected in 2002, 2008, and 2014. Senator Sessions is noted for his opposition to undocumented immigration and advocacy of reducing legal immigration. 

An early supporter of Donald Trump's 2016 presidential campaign, Sessions was considered as a possible vice presidential nominee, but Indiana governor Mike Pence was ultimately selected for the ticket. On November 18, 2016, it was announced that President-elect Donald Trump plans to nominate Sessions for Attorney General of the United States when he takes office.

6.   4th anniversary of DACA 

In 2012, President Obama announced the Deferred Action for Childhood Arrivals (DACA) program.  DACA has provided relied to thousands of migrants who were brought to the United States as children.  In 2016, DACA celebrated its fourth birthday.

7.  Passing of Justice Scalia

Conservative icon Justice Antonin Scalia passed away this year.  As his vehement dissent in Arizona v. United States makes clear, Justice Scalia's opinions were  not particularly sympathetic toward immigrants.  Click here for a summary of Justice Scalia's major immigration decisions

8.   Garland Nomination

With the vacancy left by the death of Justice Scalia, President Obama nominated Merrick Garland, a respected judge of  the U.S. Court of Appeals for the District of Columbia Circuit.  There was some uncertainty about Judge Garland's views on immigration matters and he had few immigration opinions.  For a review of Judge Garland's criminal and national security opinions, click here.

9. The Surge of Syrian Refugees in Europe

The nations of Europe responded in very different ways yo se to the large flow of Syrian refugees.  Due to geography, Syrian refugees have not had as great an impact on the United States, although some states, such as Indiana, unsuccessfully sought to prevent the U.S. government from bringing Syrian refugees into their jurisdiction.  Thousands of refugees have died seeking to cross the Mediterranean Sea.

10.  Death on the border continues

It is not really news but migrants continue to die as they attempt to cross the U.S./Mexico border.  Death on the border is likely to continue during the Trump administration.

Honorable Mention:  Ethiopian Silver Medal Winning Olympics Marathoner Protests Government, Refugee Team Competes in Rio Olympics 2016

There were a number of immigrant stories in the Rio Olympics 2016. 

The finish of the Marathon in the Olympics yesterday saw the Silver Medal winner make a political statement. As MSN explains, when he crossed the Olympics marathon finish line, Feyisa Lilesa put his hands above his head in an "X." Lilesa was protesting the Ethiopian government's killing of hundreds of the country's Oromo people - an ethnic majority that has long complained about being marginalized by the country's government. The group has held protests this year over plans to reallocate Oromo land. Many of those protests ended in bloodshed.  For months, the Oromo have been using the same "X" gesture that Lilesa used at the finish line.

A team of refugees competed at the Rio Olympics. A Syrian refugee was designated to carry the Olympic torch through a refugee camp in Greece.

December 2, 2016

Argument analysis: Immigrant detention and the Constitution

Cross-posted from SCOTUSblog.

The detention of immigrants is a major tool for enforcing the immigration laws employed by the executive branch. President-elect Donald Trump has promised to detain immigrants facing removal while their cases percolate through the courts. Detention thus is poised to become more common for noncitizens in removal proceedings.

Yesterday, the justices appeared deeply divided during oral argument in Jennings v. Rodriguez. This class-action challenge to immigration detentions raises questions about whether immigrants, like virtually any U.S. citizen placed in criminal or civil detention, must be guaranteed a bond hearing. The U.S. Court of Appeals for the 9th Circuit affirmed a district court injunction that generally requires bond hearings every six months for certain classes of immigrant detainees.

The Supreme Court's immigration-detention decisions have followed a jagged path, often tracking American political and social history. In 1953, at the height of the Cold War, the court in Shaughnessy v. United States ex rel. Mezei emphasized the "plenary power" of the U.S. government over immigration and upheld the indefinite detention of a long-term legal immigrant who had briefly visited his native country. In 2001, in Zadvydas v. Davis, the court interpreted an immigration statute to require judicial review of a detention decision because a "statute permitting indefinite detention of an alien would cause a serious constitutional problem." But, not long after the tragic events of September 11, 2001, in the 2003 case of Demore v. Kim, the court again invoked the plenary-power doctrine to justify the detention of a legal immigrant convicted of a crime pending his removal. These cases left something for each of the parties to argue in Jennings.

The argument required counsel to navigate the thicket of Supreme Court immigration-detention precedent and explain the complex immigration statute and different sub-classes of immigrants in the case. The justices came at the case from several different angles. Many of the justices' questions focused on gaining a better understanding of how the immigration statute allowed for the detention of different sub-classes of immigrants. Several justices seemed perplexed by fact that the statute provides for detention without a bond hearing of someone who was placed in custody at the time of attempted entry into the country but that, in contrast, a similarly situated noncitizen who was apprehended in the interior of the country enjoys the right to a hearing.

Some of the justices, especially Justice Sonia Sotomayor but also Justices Stephen Breyer and Elena Kagan, found it hard to see how immigrants might constitutionally be detained without a bond hearing. Such a result, they suggested, is out of sync with the court's decisions dealing with civil and criminal detention, which are highly protective of the rights of persons subjected to a loss of liberty.

Justice Samuel Alito seemed to suggest that the constitutional issues surrounding detention might best be addressed through relief in individual cases rather than in a class action.

Chief Justice John Roberts appeared keen on remanding the case to the lower court to decide the constitutional questions; he suggested that the 9th Circuit should not have employed the doctrine of constitutional avoidance because the statute was so clear - especially with respect to the mandatory detention of noncitizens convicted of certain crimes required by 8 U.S.C. 1226(c). Roberts stated that, to avoid the constitutional question, the 9th Circuit had "draft[ed] a statute or a regulation," - an approach he characterized as "quite a leap."

Ian Gershengorn, the acting solicitor general, argued the case for the government, and frequently relied on Demore v. Kim, particularly with respect to making mandatory the detention of immigrants convicted of certain crimes. Gershengorn did not invoke the plenary-power doctrine, nor did he mention the extraordinary decision in Mezei, in which the court authorized the indefinite detention of an immigrant. Rather, the focus of his argument was that Congress had spoken on the issue of detention and "[t]he Ninth Circuit's decision is a serious misuse of the constitutional avoidance canon." In his view, the court of appeals rewrote the statutory provisions, rather than reasonably interpreting them to avoid constitutional questions.

Gershengorn ran into difficulty in grappling with questions about when a term of detention would be too long to satisfy due process concerns. He suggested that 20 years without a bond hearing would certainly be unconstitutional, but had a hard time explaining why a two-or three-year detention was not too long. (The mistaken statistical data about the average length of detention that the solicitor general's office had provided the court in Demore v. Kim came up in the argument, but was not a major bone of contention.) The acting solicitor general surprisingly suggested that delays in deciding removal cases were in part due to the "tremendous process to the individual alien" guaranteed by the statute, including counsel at no expense to the government. Sotomayor questioned whether lengthy detention could be appropriate without a finding that the immigrant was a flight risk or a danger to public safety.

Ahilan Arulanantham of the American Civil Liberties Union of Southern California argued the case for the detained immigrants. He defended the lower court injunction as an appropriate application of Zadvydas and its fashioning of a practical approach to avoiding significant constitutional problems. He contended that the 9th Circuit's requirement of a bond hearing every six months was appropriate in light of the fact that the USA PATRIOT Act requires bond hearings at such intervals for persons held for national-security reasons.

Arulanantham claimed that the availability of habeas-corpus review in individual cases was insufficient to address the constitutional concerns posed by prolonged detention. He pointed out that such cases on the average take 19 months to be processed by the courts - much too long a period, he argued, to be held in detention without judicial review. Much of the justices' questioning focused on whether the 9th Circuit had inappropriately relied on the doctrine of constitutional avoidance and whether the case should be remanded to the court of appeals to decide the constitutional questions. None of the justices appeared to buy the lower court's claim that the provision requiring detention of immigrants with certain criminal convictions could reasonably be interpreted to avoid those questions.

In sum, both sides in yesterday's argument had some explaining to do to the justices, who seemed troubled by two very different aspects of the case. On the one hand, as even the government seemed to concede, indefinite detention without a hearing is difficult to justify as a constitutional matter. At the same time, however, some justices worried that the 9th Circuit had acted more like a legislature than a court in fashioning the injunction requiring bond hearings every six months. Based on the argument, it may prove difficult for a majority of an eight-justice court to agree on a rationale for deciding the case.