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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.

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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.