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January 31, 2017

A Teach-In About the Immigration Executive Orders

Please join School of Law faculty for a discussion of President Trump's Executive Orders regarding immigration law, immigrants' rights, and human rights.

Monday, February 6, 2017, 12:00 PM
King Hall Room 1001

 

Sponsored by

Aoki Center for Critical Race and Nation Studies

Immigration Law Association

La Raza Student Association

Middle Eastern South Asian Law Students Association (MESALSA)

Lunch will be served.

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.

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.

October 17, 2016

Time to End Intentional Destruction of Cultural Heritage

In her role as UN Special Rapporteur in the field of cultural rights, Professor Karima Bennoune is taking part in a discussion of the special report she will present to the United Nations General Assembly. 

Speakers:

  • Ms. Karima Bennoune
  • Mr. Pablode Greiff (Special Rapporteur on the promotion of truth, justice, reparation & guarantees of non‐recurrence)
  • Mr. Omara Khan Massoudi (Former Director of  the National Museum  of Afghanistan, UNESCO Consultant, Kabul)
  • Father Najeeb Michael (Director of the Research Dominican Center, Erbil, Iraq)
  • Ms. Diane Alai (Representative of the Bahai International Community to the United Nations, Geneva, Switzerland)
  • Ms Kristen Carpenter (Oneida Indian Nation Visiting Professor of Law, Harvard Law School)

Moderator: Dr Ousseina Alidou (Professor, Department of African American and African Studies, Rutgers University)

With a performance by Malian artist Yacouba Sissako

Video message from Maestro Placido Domingo, President of Europa Nostra

Date: Thursday, October 27, 2016

Time: 5:30pm - 8pm

Venue: Conference Room 12, UN Headquarters, New York, New York

RSVP by October 24th at https://goo.gl/forms/YwyfgpVCFxFgs5Zp1

December 10, 2015

How the Right and the Left Are Getting San Bernardino Wrong

This article originally appeared on The Huffington Post on December 7, 2016.

14 people are dead. 21 are injured.

A young couple armed for battle attacked a Christmas party full of the husband's colleagues. In the face of this nightmare -- both the 355th mass shooting in 336 days in the United States, and one that came less than three weeks after the Paris attacks -- right and left alike are sticking to their scripts rather than grappling with the complex reality. If we are to successfully prevent future massacres, that has to change.

First and foremost, we have to think of the victims and their families.

And then we have to declare all-out war on the political ideology of Islamism that motivated Syed Farook and Tafsheen Malik, while simultaneously standing firm against all attempts to discriminate against Muslims generally. We have to disarm all potential terrorists by toughening up gun control laws and by discrediting the foul ideas that motivate them. (And we have to name those ideas without fear of being labelled politically incorrect. ) The right and the left, more worried about their fight with each other than the fight against terrorism, have made this an either/or choice when it is both/and. We cannot succeed by only doing one of these things or the other.

The right rushed in almost immediately. Twitter was full of smears of all Muslims, President Obama, immigrants, etc. Ann Coulter tweeted: "it's been a 50 year invasion." "Where," shrieked Pamela Geller, "are the programs in mosques and madrassas teaching against jihad? NONE." Are there enough such programs and are they succeeding? No. But, as someone who has spent years traveling the world talking to Muslims, including clergy, who are challenging extremism, I know that this is simply a lie. As the icing on the cake, Marco Rubio now denies that there is any discrimination against Muslims in America.

The left meanwhile, as exemplified by the tepid statements of Democratic candidates -- has only been willing to talk about gun control and has mostly refused to name a key part of the problem in this case -- Muslim fundamentalism or Islamism, a virulent political ideology (which represents the far right of the Muslim political spectrum). That ideology today poses a global threat and is one that many (but not enough) people of Muslim heritage themselves have been fighting against all around the world for years. Hilary Clinton deems it insulting to say "radical Islam." Not saying it, when it represents a reality, is much worse.

The double standards have been stunning. On the right, people who denounced anyone who dared make a connection between the Colorado Planned Parenthood shooter and its own extreme anti-choice discourse were instantly linking the San Bernardino bloodbath to "Islamic" terrorism before there was any evidence other than that the first suspect had a foreign sounding name. On the left, the same people who had instantly (and correctly) recognized the politics of the Planned Parenthood shooting were reticent to admit any connection to terrorism here or to discuss the possible political motivation, even as thousands of rounds of ammunition were being found in the "IED factory" Farook and Malik had in their garage.

The soundtrack to all of this has been a diatribe from the Far Right in the West increasingly suggesting that all Muslims are members of one big sleeper cell and that there is something inherently wrong with this religion, and this religion only. Such views contravene basic tenets of humanism and decency. They also give a powerful weapon both to actual fundamentalists and those who apologize for them by suggesting that the extremists are just fighting an oppressive, imperialist West and defending Muslim interests. Making Muslims into victims, or making them feel like they are, plays into the hands of the fundamentalists who know just how to play that card.

While the Western Right sometimes advocates bigotry and international crimes -- like killing the families of terrorists as Donald Trump appallingly suggests -- in response to Muslim fundamentalist violence, the Western Left often refuses to recognize the reality of that violence and the actual danger posed by its underlying ideology.

They should listen to progressives of Muslim heritage whose words also belie the claims of the Gellers of the world. For example, Algerian anti-extremist activist Cherifa Kheddar, whose own brother and sister were killed by the Armed Islamic Group in 1996, clearly explains that you cannot end jihadist violence without "prioritizing the fight against fundamentalism which makes the bed of jihadism."

A similar point was made by a petition authored by Muslim journalist Mohamed Sifaoui and published last summer in the leftwing and secular French magazine Marianne that was signed by some 2000 people, mostly people of North African, Muslim heritage. "Islamism imposes a war on us and its principle weapon is terrorism, but Islamism also imposes on us a great ideological battle that we must face up to collectively."

In facing up to this very battle, President Obama got some things right in his Oval Office speech though he mainly pledged -- somewhat incongruously -- to continue the same strategy against a threat which has evolved, and emphasized what he would not do. However, he rightly reminded us that Muslim Americans are an integral part of the community. Discrimination is an unacceptable response to terror. Allowing terror suspects to arm themselves inside our borders is not a good idea. And at the same time he insisted that Muslims must confront extremism which is a grave threat and one that has, in fact, taken root in certain quarters, including here in the U.S..

What we need to do now -- rather than giving a forum to self-appointed spokespeople like CAIR who have not led the fight against extremism -- is listen to those who have actually been taking on this very struggle the President referenced. One of those brave people, Ani Zonneveld, the Malaysian American head of Muslims for Progressive Values based in Southern California, wrote to me the day after the San Bernardino slaughter. "You cannot be religious and go out and kill in Islam, and yet again we are witnessing murder in the name of our faith. The fact that guns are easily accessible and there have been more than 355 mass shootings in America to date should be irrelevant to our internal conversation. Our conversation should be why and what is it in our theology that has been so bastardized to give people permission to kill? Until we honestly root this out, we will by default be blamed."

To enable the "rooting out" Ani calls for, the right and the left need to focus on the actual problem and not on each other. They all need to carefully distinguish between Muslims, people of Muslim heritage and immigrants on the one hand, and Islamist extremists on the other. They must be tolerant toward the former who are key allies, and unwaveringly intolerant of the latter. As a necessary first step, they must speak the name of the problem: "Muslim fundamentalism."

The memory of the victims of San Bernardino, and of so many other recent terror attacks around the world, demands nothing less from us today.

October 8, 2015

Los Angeles Times Op-Ed: The refugee tragedy in our own backyard

On September 11, three UC Davis students, Aldo Martinez Gomez, Amanda Whitney, and Anita Barooni, and I went to provide a free legal orientation to refugees detained in the Mesa Verde Detention Center in Bakersfield. The students and volunteers met with over 250 refugees and immigrants from all over the world, providing pro se assistance, self-help materials, and legal support. However, we also left feeling a bit defeated because the need was so overwhelming, and the people were desperate for more meaningful legal assistance.

The students' outrage and courage inspired me to write this opinion piece for The Los Angeles Times with my friend and colleague, Jayashri Srikantiah at Stanford.

I did not want what we witnessed to remain invisible, because in the words of MLK, "In the end we will remember not the words of our enemies, but the silence of our friends."

 

October 1, 2015

TIME Ideas: Borders Should Be Checkpoints, Not Roadblocks, to Migrants

I was invited to contribute an essay to TIME Magazine's "Ideas" section.

The result is this: "Borders Should Be Checkpoints - Not Roadblocks - to Migrants."

An excerpt:

The Syrian refugee crisis unfortunately is simply the latest mass migration to challenge the global community. Just last summer, for example, the U.S. was the destination for tens of thousands of women and children fleeing rampant gang violence in Central America. Many other contemporary examples of large movements of people—Haiti, Africa and Vietnam—come to mind.

How do we as global community respond to large-scale migration flows caused by civil war, mass disaster or severe economic deprivation? Unfortunately, the law performs the worst in the situation where it is needed the most. Tight controls over numbers of people admitted do not help address mass migrations of people. More liberal admissions are urgently needed.

International law and the law of individual nations should be more open and admit migrants who want to work in low- and medium-skilled (as well as high-skilled) jobs that are highly valued by the economies of Western nations, which have experienced dwindling labor forces with decreasing fertility rates. We should show our true commitment to the global community by welcoming refugees fleeing violence, natural disaster, and lack of opportunity with open arms, not try to stop them from entering the country.

Read the full essay at TIME Ideas. Thanks to TIME for the opportunity!

September 2, 2015

New Faculty Research: Legal Studies Research Paper Series, Vol. 17 No. 4

Here is a look at some of the most recent scholarship from UC Davis School of Law faculty from the Social Science Research Network's Legal Scholarship Network. Click through the links to download the works.

LEGAL SCHOLARSHIP NETWORK: LEGAL STUDIES RESEARCH PAPER SERIES
UC DAVIS SCHOOL OF LAW

"Business and Human Rights Litigation in U.S. Courts Before and after Kiobel" 
UC Davis Legal Studies Research Paper No. 440

WILLIAM S. DODGE, University of California, Davis, School of Law
Email: dodgew@uchastings.edu

This Chapter examines the landscape for business and human rights cases in U.S. courts under the Alien Tort Statute (ATS) both before and after the U.S. Supreme Court's 2013 decision in Kiobel v. Royal Dutch Petroleum Co. It concludes that such cases today face a series of challenges, including personal jurisdiction, the question of corporate liability, the standard for aiding and abetting liability, and satisfying Kiobel's "touch and concern" test.

"Employment Arbitration after the Revolution" 
DePaul Law Review, Vol. 65, 2016 Forthcoming
UC Davis Legal Studies Research Paper No. 443

DAVID HORTON, University of California, Davis - School of Law
Email: dohorton@ucdavis.edu
ANDREA CANN CHANDRASEKHER, University of California, Davis - School of Law
Email: achandrasekher@ucdavis.edu

This invited contribution to the DePaul Law Review's Clifford Symposium on Tort Law and Social Policy examines 5,883 cases initiated by employees in the American Arbitration Association between July 1, 2009 and December 31, 2013. Its goal is to shed light on the state of employment arbitration after the U.S. Supreme Court's watershed opinions in Rent-A-Center West, Inc. v. Jackson and AT&T Mobility LLC v. Concepcion.

It finds that employees have filed fewer cases since Concepcion. It also determines that employees "win" - defined as recovering an award of $1 or more - 18% of matters. Finally, it performs logit regressions to investigate the impact of several variables on case outcomes. It concludes that employees are less likely to be victorious when they face a "high-level" or "super" repeat playing employer. Conversely, fact that a case involves a "repeat pairing" - an employer that has appeared at least once before the same arbitrator - does not influence win rates.

"The Ambivalence in the American Law Governing the Admissibility of Uncharged Misconduct Evidence" 
Proceedings of the Fifth International Conference on Evidence Law and Forensic Science, Forthcoming
UC Davis Legal Studies Research Paper No. 438

EDWARD J. IMWINKELRIED, University of California, Davis - School of Law
Email: EJIMWINKELRIED@ucdavis.edu

The English common-law courts gave birth to the character evidence prohibition and helped spread the prohibition throughout the common-law world. Under the prohibition, a prosecutor may not introduce testimony about an accused's uncharged misconduct on the theory that the uncharged misconduct shows the accused's propensity to commit crimes and that in turn, the propensity increases the probability that the accused committed the charged offense. According to the orthodox version of the prohibition, the government may introduce the testimony only if the prosecutor can demonstrate that the evidence is logically relevant on a non-character theory, that is, a theory that does not entail an assumption about the accused's personal, subjective bad character.

Today, though, in much of the common-law world, by virtue of case law and legislation the prohibition is no longer in effect as a rigid, categorical rule. Rather, the courts may admit uncharged misconduct as character evidence when, in their view, the character trait has special relevance or there is striking similarity between the charged and uncharged offenses. In contrast, in the United States the prohibition survives largely intact as a categorical rule. Indeed, the general prohibition is codified in Federal Rule of Evidence 404(b); and the vast majority of states have a statute or court rule modeled after 404(b). Yet, today there is an ambivalence in the American law governing the admissibility of uncharged misconduct:

In federal practice and three handfuls of states, the prohibition has been selectively abolished. For example, Federal Rules 413-14 abolish the prohibition in prosecutions for sexual assault and child molestation. Congress enacted the rules over the vocal opposition of both the Judicial Conference and the A.B.A. and despite empirical data indicating that revidivism rates for those crimes are lower than the rates for many other offenses such as property crimes.

At the same time, in other types of prosecutions there is a marked trend to toughen the standards for admitting uncharged misconduct evidence. Substantively, a number of American jurisdictions have tightened the requirements for both the plan and "res gestae" theories for introducing uncharged misconduct. Procedurally, several jurisdictions have imposed new pretrial notice requirements, demanded that the prosecution explicitly articulate a complete, non-character theory of relevance on the record, and forbidden trial judges from giving "shotgun" jury instructions which do not specify the particular non-character theory that the prosecution is relying on. The distinction between character and non-character theories can be a thin line, and all these steps have been taken to ensure that any uncharged misconduct admitted possesses genuine non-character relevance and is used for only that purpose during deliberations.

Some find the current ambivalence of American law dissastifying and urge that American jurisdictions resolve the tension by following the example of other common-law jurisdictions that have abandoned a general, rigid prohibition. However, doing so would be at best premature. There has yet to be a comprehensive investigation of the trial-level impact of Rules 413-14. Moreover, the most recent psychological research calls into question the validity of inferring a person's character or disposition from a single act or a few instances of conduct-which is what Rules 413-14 authorize a jury to do. Finally, American courts should be especially solicitous of the policy protecting accused from being punished for their bad character. In the United States, that policy has special importance; the Supreme Court has held that the Eighth Amendment ban on cruel and unusual punishment forbids status offenses. If an American jury succumbed to the temptation to punish an accused for his or her past - nothwithstanding a reasonable doubt about their guilt of the charged offense - the conviction would impinge on a policy with constitutional underpinning.

"The Myth of Arrestee DNA Expungement" 
University of Pennsylvania Law Review Online, 2015, Forthcoming
UC Davis Legal Studies Research Paper No. 447

ELIZABETH E. JOH, University of California, Davis - School of Law
Email: eejoh@ucdavis.edu

Building on a trend that began with collecting DNA from convicted offenders, most states and the federal government now collect DNA from felony arrestees. The national DNA database now contains information on more than 2 million arrestees. While some of these arrests will result in guilty pleas or convictions, a substantial number will not. In fact, in many cases arrests lead to dismissed criminal charges or no charges at all. Should these arrestees forfeit their genetic information nevertheless? Every jurisdiction that collects arrestee DNA permits eligible arrestees to seek the expungement of their genetic profiles. While formal expungement is the law, it turns out that arrestee DNA expungement is largely a myth. In most states that collect arrestee DNA, the initial decision by the police to arrest that person turns out in most cases to lead to the permanent collection and retention of the arrestee's genetic information, regardless of whether charges are dismissed or never brought at all. This essay is the first to provide preliminary data on actual arrestee DNA expungement, and argues for quick, efficient, and state-initiated expungement procedures.

"Race-Based Law Enforcement: The Racially Disparate Impacts of Crimmigration Law" 
Case Western Law Review, Forthcoming
UC Davis Legal Studies Research Paper No. 437

KEVIN R. JOHNSON, University of California, Davis - School of Law
Email: krjohnson@ucdavis.edu

This Essay was prepared for the Case Western Law Review's symposium on the 20th anniversary of the Supreme Court's decision in Whren v. United States, 517 U.S. 806 (1996). Racially-charged encounters with the police regularly make the national news. Local law enforcement officers also have at various times victimized immigrants of color. For example, New York City Department (NYPD) officers in 1999 killed Amadou Diallo, an unarmed immigrant from Guinea, in a hail of gunfire; two years earlier, officers had tortured Haitian immigrant Abner Louima at a NYPD police station. Both victims were Black, which no doubt contributed to the violence. In less spectacular fashion, police on the beat by many accounts regularly engage in racial profiling in traffic stops of U.S. citizens and noncitizens of color.

Removals of "criminal aliens" have been the cornerstone of the Obama administration's immigration enforcement strategy. Well-publicized increases in the number of removals of immigrants also have been the centerpiece of President Obama's political efforts to persuade Congress to pass a comprehensive immigration reform package. The hope behind the aggressive enforcement strategy has been to convince Congress that this is the time to enact comprehensive immigration reform.

In the last few years, a body of what has been denominated "crimmigration" scholarship has emerged that critically examines the growing confluence of the criminal justice system and the immigration removal machinery in the United States. That body of work tends to direct attention to the unfairness to immigrants, as well as their families, of the increasing criminalization of immigration law and its enforcement. This Essay agrees with the general thrust of the crimmigration criticism, but contends that it does not go far enough. Namely, the emerging scholarship in this genre fails to critically assess the dominant role that race plays in modern law enforcement and how its racial impacts are exacerbated by the operation of a federal immigration removal process that consciously targets "criminal aliens."

Part I of this Essay considers parallel developments in the law: (1) the Supreme Court's implicit sanctioning of race-conscious law enforcement in the United States, with the centerpiece of this symposium, Whren v. United States, the most well-known example; and (2) the trend over at least the last twenty years toward increased cooperation between state and local law enforcement agencies and federal immigration authorities. Part II specifically demonstrates how criminal prosecutions influenced by police reliance on race necessarily lead to the racially disparate removal rates experienced in the modern United States. Part III discusses how some state and local governments have pushed back on cooperation with federal immigration authorities, with effective community police practices being an important policy rationale invoked by local law enforcement for that resistance. Part III of this Essay further contends that more attention should be paid to the racially disparate impacts of linking immigration removals to the outcomes of a racially-tainted criminal justice system. It further sketches some modest reforms to the U.S. immigration laws that might tend to blunt, rather than magnify, some of these racial impacts.

"Corporate Speech and the Rights of Others" 
30 Constitutional Commentary 335 (2015)
UC Davis Legal Studies Research Paper No. 442

THOMAS WUIL JOO, University of California - Davis Law School
Email: twjoo@ucdavis.edu

The Supreme Court is often erroneously criticized for giving business corporations the constitutional rights of human persons. In fact, constitutional decisions protecting corporations tend to be based not on the rights of corporate "persons," but on the rights of other persons: human individuals such as shareholders or persons who listen to the content of corporate speech. Shareholders' property and privacy interests have been invoked to protect corporations from regulatory takings and from unreasonable searches, for example.

In the First Amendment context, Citizens United and other opinions have invoked the rights of others in a different way, invalidating corporate speech regulations on the ground that they infringe upon the public's right to hear corporate messages. These "rights of others," however, can conflict with the rights of other others: corporate shareholders who might not want corporate assets used to express such messages.

The Court has dismissed this concern with the inaccurate assertion that shareholders control a corporation's messages through "corporate democracy." This contention, and not corporate constitutional "personhood," is the true fallacy of corporate speech jurisprudence. Corporate governance is not democratic. In the interests of money-making efficiency, the law concentrates power in professional managers. As intended, this arrangement is likely to benefit shareholders financially. But it does not give them meaningful input into corporate decision-making, leaving them open to the misuse of corporate property. Thus the "rights of others" may justify the regulation of corporate speech.

"Remembrance of Early Days: Anchors for My Transactional Teaching" 
UC Davis Bus. L.J. 107, 2014
UC Davis Legal Studies Research Paper No. 444

EVELYN A. LEWIS, University of California, Davis - School of Law
Email: ealewis@ucdavis.edu

This essay discusses teaching transactional skills as part of traditional non-clinical, substantive law classes. It offers a very personal perspective gleaned from the author's 40 years of combined experience as a San Francisco transactional law practitioner and law professor. Of necessity, due to length constraints, the author offers only a few selected opinions about what she thinks works in teaching transactional skills in substantive law classes. Despite this limited focus, the author weighs in, at least a bit, on a myriad of subjects, including the current push for law graduates to be more "practice ready," the importance of skin-in-the-game type mentoring both pre- and post- law school graduation, the different challenges in training transactional lawyers versus litigators, the merits of using multifaceted large drafting projects versus more discrete problems, course advising needs, the teacher as recruiter, balancing desires for breath versus depth of exposure, and using what the author calls factual "side-bars" as accommodation of traditional casebooks to the transactional perspective. The author hopes these offerings of her matured discernment from longevity in the field of transactional law skills training, in the various iterations she notes in the essay, provide some helpful insights to current teachers of transactional law skills, both clinical and non-clinical.

"A New Understanding of Substantial Abuse: Evaluating Harm in U Visa Petitions for Immigrant Victims of Workplace Crime" 
Georgetown Immigration Law Journal, Vol. 29, 2015
UC Davis Legal Studies Research Paper No. 439

EUNICE HYUNHYE CHO, Southern Poverty Law Center
Email: eunice.cho@splcenter.org
GISELLE A HASS, Georgetown University - Center for Applied Legal Studies
Email: Giselle.Hass@gmail.com
LETICIA M. SAUCEDO, University of California, Davis - School of Law
Email: lmsaucedo@ucdavis.edu

This Article examines the legal concept of "substantial physical or mental abuse" suffered by immigrant victims of crime in the workplace, particularly as it relates to the ability to qualify for U non-immigrant status (commonly referred to as a "U visa"). Enacted for the dual purposes of strengthening law enforcement capacity and providing humanitarian relief to victims of crime, the U visa allows non-citizen victims of crime who are helpful in a crime's detection, investigation, or prosecution to remain in the United States, obtain employment authorization, and attain lawful permanent residency. To qualify for the visa, victims must demonstrate that they have suffered "substantial physical or mental abuse" as a result of the criminal activity.

Although legal scholars, medical and mental health experts, and government agencies have more robustly explored the concept of "substantial physical or mental abuse" in the context of domestic violence and sexual assault against immigrant women, there has been no focused exploration of this concept in relation to abuse of immigrant workers. In recent years, labor and civil rights enforcement agencies have increasingly certified U visa petitions in cases involving victims of workplace crime, but greater clarity is needed on the concept of substantial abuse in this context.

This Article provides for the first time a comprehensive framework to evaluate abuse suffered by victims of workplace crime in the U visa context. Based on a multi-disciplinary analysis, the Article argues that adjudicators have erroneously conflated the U visa's "substantial physical or mental abuse" standard with the standard of "extreme cruelty" developed in the context of immigration remedies for victims of domestic violence. The Article also argues that U visa adjudicators and advocates must account for the specific dynamics of abuse experienced by immigrant victims of workplace-based criminal activity, which are distinct from abuse displayed in more familiar cases of domestic violence, and examines particular forms of harm and vulnerabilities experienced by victims of workplace crime. The Article finally provides examples to assist adjudicators, policy-makers, and practitioners in the identification and assessment of workplace based U visa cases envisioned by the U visa statute and regulations.

"The Implications of Alabama Department of Revenue v. CSX Transportation Inc. and Direct Marketing Association v. Brohl" 
State Tax Notes, Vol. 76, No. 6, 2015
UC Berkeley Public Law Research Paper No. 2616561
UC Davis Legal Studies Research Paper No. 441

DAVID GAMAGE, University of California, Berkeley - Boalt Hall School of Law
Email: david.gamage@gmail.com
DARIEN SHANSKE, University of California, Davis - School of Law
Email: dshanske@ucdavis.edu

This essay analyzes the implications of two recent Supreme Court cases on state and local taxation: Alabama Department of Revenue v. CSX Transportation Inc. and Direct Marketing Association v. Brohl. We argue that both of these decisions not only fail to resolve major issues in state and local taxation, but actually unsettle these issues.

"The Last Preference: Refugees and the 1965 Immigration Act" 
Forthcoming in The Immigration and Nationality Act of 1965: Legislating a New America (Gabriel J. Chin & Rose Cuison Villazor eds., 2015).
UC Davis Legal Studies Research Paper No. 446

BRIAN SOUCEK, University of California, Davis - School of Law
Email: bsoucek@ucdavis.edu

The 1965 Immigration Act is remembered - and celebrated - for having replaced an immigration system driven by national origins with a preference system privileging family ties and occupational skills. But while the rest of the 1965 Act, in President Johnson's words, welcomed immigrants "because of what they are, and not because of the land from which they sprung," the last of its preferences, given to refugees, emphatically did not. Not only did the 1965 Act fail to embrace the 1951 U.N. Refugee Convention's protection for refugees persecuted because of their nationality, the Act itself discriminated on the basis of refugees' nationality. To qualify, those persecuted had to hail from a "Communist or Communist-dominated country" or "the general area of the Middle East." A separate provision allowed for entry of those "uprooted by catastrophic natural calamity as defined by the President."

By tying refugees' status to "the land from which they sprung," to America's anti-Communist foreign policy and national security interests, and, importantly, to the discretion of the President, the 1965 Act's refugee provision suggests a counter-narrative to descriptions of the Act as part the domestic anti-discrimination agenda of the mid-1960s, or as a reassertion of Congressional control over immigration. The 1965 Act turned refugee policy into another weapon of the Cold War, to be deployed largely as the President chose. It would be another fifteen years before Congress again attempted (or at least purported) to do for refugees what the 1965 Act did for most other immigrants: end national origin discrimination and formalize the criteria and procedures governing admission to the United States.

"Chae Chan Ping v. United States: Immigration as Property" 
Oklahoma Law Review, Forthcoming
UC Davis Legal Studies Research Paper No. 445

ROSE CUISON VILLAZOR, University of California, Davis
Email: rcvillazor@ucdavis.edu

In this symposium Essay, I explore an overlooked aspect of Chae Chan Ping v. United States: Ping's argument that his exclusion from the United States under the Chinese Exclusion Act violated his property right to re-enter the United States. In particular, Ping contended that the government-issued certificate that he acquired prior to leaving the United States gave him the right to return to the United States. Such right was based on "title or right to be in [the United States] when the writ issued." Importantly, Ping claimed that this right could not be "taken away by mere legislation" because it was "a valuable right like an estate in lands." Similar to his other claims, the Supreme Court rejected this property argument. The Court's treatment of his property claim is understandable because Ping's contention may perhaps be described as "new property," which did not become legible to courts until several decades later.

In reconsidering Ping's property arguments, I aim to achieve two goals. First, as a thought piece, this Essay aims to show what the plenary power doctrine might have looked like had Ping succeeded in convincing the Court that his right to return constituted a property right. Second, this Essay highlights the intersections between property law and immigration law and the ways in which individual property rights might serve as limiting principles to the Supreme Court's formulation of the nation's absolute right to exclude non-citizens from the United States.

June 18, 2015

Premiere of Film on the Historic Trial that Made Rape a War Crime

This week, I am in Rwanda for the premiere of the documentary film The Uncondemned.

The Uncondemned documents the legal and political path to the 1998 conviction of Jean-Paul Akayesu, the mayor of Taba Commune, Rwanda, in the first-ever conviction of rape as an act of genocide and as a crime against humanity.  The prosecution and conviction were at the International Criminal Tribunal for Rwanda (ICTR). a forerunner to the International Criminal Court.  The Rwandan Genocide occurred over about 3 months, beginning in April 1994, after the plane carrying the president of Rwanda, a moderate Hutu, was shot down. 

I was a gender consultant to ICTR in 1996 where I did the initial legal analysis of the sexual assault case against Akayesu, arguing that the indictment (for killings as acts of genocide and as crimes against humanity) against him should be amended to include charges of rape and other sexual assaults that occurred at the Taba Bureau Communale, which was under his control.  I appear in the film, along with the two American lawyers who tried the case, Pierre-Richard Prosper and Sara Darehshori. Also featured are other officials of ICTR, journalists who covered the genocide, and human rights advocates. 

Most exciting is that the three women who were the key witnesses against Akayesu are in the film, along with the Taba commune social worker who encouraged them to testify and helped to facilitate their doing so.  Those four women attended the premiere.  Their statements were the ones I was analyzing back in 1996. 

The President of Rwanda, Paul Kagame, hosted the screening of The Uncondemned in the capital city, Kigali. Also among those in attendance were the Minister of Justice, the Foreign Minister and a number of women parliamentarians. Official photos from the event are posted to the President's  Flickr album.  I am in a couple of the photos there, and my son William is one, too, near the bottom of the page.  

 


Photo: Professor Lisa Pruitt with two of the rape survivors, Serrafina and Victoire, who testified against Akayesu.

The Uncondemned is expected to be in distribution across the U.S. and worldwide in 2016.

 

May 1, 2015

New Research from the Faculty at UC Davis School of Law

Here is a look at some of the most recent scholarship from UC Davis School of Law faculty from the Social Science Research Network's Legal Scholarship Network. Click through the links to download the works.

LEGAL SCHOLARSHIP NETWORK: LEGAL STUDIES RESEARCH PAPER SERIES
UC DAVIS SCHOOL OF LAW

"Productive Tensions: Women's NGOs, the 'Mainstream' Human Rights Movement, and International Lawmaking" Free Download
Non-State Actors, Soft Law and Protective Regimes: From the Margins (Cecilia M. Bailliet ed., Cambridge University Press, 2012).
UC Davis Legal Studies Research Paper No. 422

KARIMA BENNOUNE, University of California, Davis - School of Law

Non-govermental organizations (NGOs) are among the most discussed non-state actors involved in the creation, interpretation, and application of international law. Yet, scholars of international law have often over looked the critical issue of diversity among NGOs, and the differing stances they may take on key international law issues and controversies. This oversight exemplifies the ways in which international law scholarship sometimes takes overly unitary approaches to its categories of analysis. Feminist international law questions the accuracy of such approaches. When one unpacks the "NGO" category, one often discovers multiple NGO constituencies reflecting conflicting concerns and perspectives. Hence, feminist international law theories should reflect a view of NGOs as international lawmakers that is equally complexified.

This chapter will focus on one example of such NGO diversity, namely the inter-NGO dynamic sometimes found between women's human rights NGOs and what is often termed the "mainstream" human rights movement. These relationships have long been complicated . At times these constituencies are allies with the same international law priorities. At other times they are opponents or at least involved in what might be described as a tense dialogue. Sometimes the "mainstream" human rights groups become themselves the targets of the lobbying of women's human rights groups. Indeed, women's human rights NGOs and other human rights NGOs may have very different views of particular inter­ national law questions . Over time, however, the women's rights groups have often - though not always - prevailed on human rights groups to evolve their view of international law in a more gender-sensitive direction.

This dialectical relationship between women's groups and other human rights groups has played out in numerous arenas, including in the 1990s debate over the definition of torture, and, most recently in regard to the need to (also) respond to atrocities by fundamentalist non-state actors in the context of critiquing the "war on terror:' In each instance, women's groups and other human rights NGOs have some­ times had uneasy, multifaceted and shifting relationships that have shaped critical international lawmaking processes and debates. Groups within both of those broad categories of NGOs have also taken diamet­rically opposed positions at times. All of these sets of complexities, these putatively productive tensions, have both enriched and rendered more difficult the role of NGOs as lawmakers, and must be reflected in any meaningful theorizing of the issue.

What then should these layered inter-NGO dynamics tell us about our conception of "NGO" as a category of analysis, and about the role of NGOs in the creation and practice of international law? What can analyzing these dynamics tell us about how progress can most success­ fully be made toward a feminist reshaping of international law? This chapter will consider each of these questions in light of several case studies.

I come at this subject from a range of vantage points, having been an Amnesty International legal adviser, having also worked closely with a range of women's NGOs, and currently as an academic. Hence, I will try to look at these questions at the intersection of both academic and these various practitioner perspectives. To that end, this chapter begins with a brief overview of NGOs and their roles on the inter­national law stage, as described in the literature. An examination of the categories used here follows, interrogating the meaning of the terms, "women's human rights NGO" and "mainstream human rights NGO." Subsequently, the chapter reviews the case studies drawn from practice, first with regard to NGO interaction concerning the definition of torture, and then bearing on responses to the "war on terror." It then concludes with a brief application of the lessons learned from these case studies about the meaning of NGO participation in international lawmaking.

"Administering Section 2 of the VRA After Shelby County" Free Download
Columbia Law Review, vol. 115 Forthcoming
UC Davis Legal Studies Research Paper No. 372

CHRISTOPHER S. ELMENDORF, University of California, Davis - School of Law
Email: cselmendorf@ucdavis.edu
DOUGLAS M. SPENCER, University of Connecticut, School of Law
Email: dspencer@berkeley.edu

Until the Supreme Court put an end to it in Shelby County v. Holder, Section 5 of the Voting Rights Act was widely regarded as an effective, low-cost tool for blocking potentially discriminatory changes to election laws and administrative practices. The provision the Supreme Court left standing, Section 2, is generally seen as expensive, cumbersome and almost wholly ineffective at blocking changes before they take effect. This paper argues that the courts, in partnership with the Department of Justice, could reform Section 2 so that it fills much of the gap left by the Supreme Court's evisceration of Section 5. The proposed reformation of Section 2 rests on two insights: first, that national survey data often contains as much or more information than precinct-level vote margins about the core factual matters in Section 2 cases; second, that the courts have authority to create rebuttable presumptions to regularize Section 2 adjudication. Section 2 cases currently turn on costly, case-specific estimates of voter preferences generated from precinct-level vote totals and demographic information. Judicial decisions provide little guidance about how future cases - each relying on data from a different set of elections - are likely to be resolved. By creating evidentiary presumptions whose application in any given case would be determined using national survey data and a common statistical model, the courts could greatly reduce the cost and uncertainty of Section 2 litigation. This approach would also end the dependence of vote-dilution claims on often-unreliable techniques of ecological inference, and would make coalitional claims brought jointly by two or more minority groups much easier to litigate.

"Bait, Mask, and Ruse: Technology and Police Deception" Free Download
128 Harvard Law Review Forum 246 (2015)
UC Davis Legal Studies Research Paper No. 423

ELIZABETH E. JOH, U.C. Davis School of Law
Email: eejoh@ucdavis.edu

Deception and enticement have long been tools of the police, but new technologies have enabled investigative deceit to become more powerful and pervasive. Most of the attention given to today's advances in police technology tends to focus either on online government surveillance or on the use of algorithms for predictive policing or threat assessment. No less important but less well known, however, are the enhanced capacities of the police to bait, lure, and dissemble in order to investigate crime. What are these new deceptive capabilities, and what is their importance?

"Richard Delgado's Quest for Justice for All" Free Download
Law and Inequality: A Journal of Theory and Practice, 2015, Forthcoming
UC Davis Legal Studies Research Paper No. 421

KEVIN R. JOHNSON, University of California, Davis - School of Law
Email: krjohnson@ucdavis.edu

This is a contribution to a symposium celebrating Richard Delgado's illustrious career in law teaching. This commentary offers some thoughts on Delgado's contributions to pushing the boundaries of Critical Race Theory - and legal scholarship generally - in seeking to create a more just society. This ambitious program has been the overarching theme to his scholarly agenda throughout his career.

"Leaving No (Nonmarital) Child Behind" Free Download
48 Family Law Quarterly 495 (2014)
UC Davis Legal Studies Research Paper No. 414

COURTNEY G. JOSLIN, University of California, Davis - School of Law
Email: cgjoslin@ucdavis.edu

Almost ten years, in 2005, I wrote a piece for the Family Law Quarterly describing the legal status of children born to same-sex couples. This Essay explores the some of the positive and some of the worrisome developments in the law since that time. On the positive side, today many more states extend some level of protection to the relationships between nonbiological same-sex parents and their children. Moreover, in many of these states, lesbian nonbiological parents are now treated as full, equal legal parents, even in the absence of an adoption.

There are other recent developments, however, that should be cause for concern. Specifically, this Essay considers recent legislative proposals that contract (rather than expand) existing protections for functional, nonmarital parents. I conclude by arguing that while advocates should celebrate the growing availability of marriage for same-sex couples, they must also be careful not to push legislative efforts that inadequately protect the large and growing numbers of families that exist outside of marriage.

"Amici Curiae Brief of Family Law Professors in Obergefell v. Hodges" Free Download
UC Davis Legal Studies Research Paper No. 420

COURTNEY G. JOSLIN, University of California, Davis - School of Law
Email: cgjoslin@ucdavis.edu
JOAN HEIFETZ HOLLINGER, University of California, Berkeley - School of Law
Email: joanhol@law.berkeley.edu

This Amici Curiae brief was filed in the Supreme Court on behalf of 74 scholars of family law in the four consolidated same-sex marriage cases.

The two questions presented in the cases concern whether the Fourteenth Amendment requires a state to license or recognize a marriage between two people of the same sex. Those defending the marriage bans rely on two primary arguments: first, that a core, defining element of marriage is the possibility of biological, unassisted procreation; and second, that the "optimal" setting for raising children is a home with their married, biological mothers and fathers. The brief demonstrates that these asserted rationales conflict with basic family laws and policies in every state, which tell a very different story.

"Fracking and Federalism: A Comparative Approach to Reconciling National and Subnational Interests in the United States and Spain" Free Download
Environmental Law, Vol. 44, No. 4, 2014
UC Davis Legal Studies Research Paper No. 424

ALBERT LIN, University of California, Davis - School of Law
Email: aclin@ucdavis.edu

Hydraulic fracturing presents challenges for oversight because its various effects occur at different scales and implicate distinct policy concerns. The uneven distribution of fracturing's benefits and burdens, moreover, means that national and subnational views regarding fracturing's desirability are likely to diverge. This Article examines the tensions between national and subnational oversight of hydraulic fracturing in the United States, where the technique has been most commonly deployed, and Spain, which is contemplating its use for the first time. Drawing insights from the federalism literature, this Article offers recommendations for accommodating the varied interests at stake in hydraulic fracturing policy within the contrasting governmental systems of these two countries.

"Access to Justice in Rural Arkansas" Free Download
UC Davis Legal Studies Research Paper No. 426

LISA R. PRUITT, University of California, Davis - School of Law
Email: lrpruitt@ucdavis.edu
J. CLIFF MCKINNEY, Independent
Email: cmckinney@QGTlaw.com
JULIANA FEHRENBACHER, Independent
Email: jfehr@ucdavis.edu
AMY DUNN JOHNSON, Independent
Email: adjohnson@arkansasjustice.org

This policy brief, written for and distributed by the Arkansas Access to Justice Commission, reports two sets of data related to the shortage of lawyers in rural Arkansas. The first set of data regards the number of lawyers practicing in each of the state's 25 lowest-population counties and the ratio of lawyers per 1,000 residents in each of those counties. This data is juxtaposed next to the poverty rate and population of each of county.

The policy brief also reports the results of a survey of Arkansas lawyers and law students, the latter from both the University of Arkansas Fayetteville Law School and the University of Arkansas at Little Rock/Bowen School of Law. These surveys probed respondents' attitudes toward rural practice, among other matters. The policy brief reports a summary of those responses. Finally, the policy brief reports on a 2015 legislative proposal aimed at alleviating the shortage of lawyers serving rural Arkansans.

This policy brief is a forerunner to a fuller, academic analysis of these and other data sets relevant to the geography of access to justice in Arkansas. That analysis will appear in an article that will be published by the University of Arkansas at Little Rock Law Journal (forthcoming 2015). The authors anticipate that these investigations in Arkansas may provide a model for other states concerned about the shortage of lawyers working in rural areas.

"Using Taxes to Improve Cap and Trade, Part I: Distribution" Free Download
75 State Tax Notes 99 (2015)
UC Davis Legal Studies Research Paper No. 425

DAVID GAMAGE, University of California, Berkeley - Boalt Hall School of Law
Email: david.gamage@gmail.com
DARIEN SHANSKE, University of California, Davis - School of Law
Email: dshanske@ucdavis.edu

In this article, the first of a series, we analyze the distributional issues involved in implementing U.S. state level cap-and-trade regimes. Specifically, we will argue that the structure of California's AB 32 regime will unnecessarily disadvantage lower-income Californians under the announced plan to give away approximately half of the permits to businesses and pollution-emitting entities.