Latest Scholarship

May 6, 2016

Faculty Scholarship: Legal Studies Research Paper Series, Vol. 18, No. 2

Faculty members at UC Davis School of Law publish truly unique scholarship that advances the legal profession. You can view their scholarly works via the Social Science Research Network (SSRN) Legal Scholarship Network. An archive can be found on this web page.

What follows here is the most recent collection of papers:

"Corporate Governance and the Indian Private Equity Model" 
National Law School of India Review, Volume 27, Issue 1
UC Davis Legal Studies Research Paper No. 484

AFRA AFSHARIPOUR, University of California, Davis - School of Law
Email: aafsharipour@ucdavis.edu

Private Equity (PE) firms have long invested in Western firms using a leveraged buyout (LBO) model, whereby they acquire a company that they can grow with the ultimate goal of either selling it to a strategic buyer or taking it public. Unable to undertake the traditional LBO model in India, PE investors in Indian firms have developed a new model. Under this Indian PE Model, PE firms typically acquire minority interests in controlled companies using a structure that is both hybridized from other Western investment models and customized for India's complex legal environment. As minority shareholders in controlled firms, PE investors in India have developed several strategies to address their governance concerns. In particular, PE investors in India have focused on solutions to address local problems through the use of agreements that govern (i) the structuring of minority investments, (ii) investor control rights, and (iii) exit strategies. Nevertheless, recent governance and regulatory difficulties highlight the continuing uncertainty surrounding the Indian PE model.

"National Data Governance in a Global Economy" 
Columbia School of International and Public Affairs Issues Brief, April 2016
UC Davis Legal Studies Research Paper No. 495

ANUPAM CHANDER, University of California, Davis - School of Law
Email: achander@ucdavis.edu

Global data flows are the lifeblood of the global economy today and of the technologies of the future. Yet, the regulation of how data is to be handled remains largely the province of national laws. How we resolve the dilemmas of global flows within a nation-state structure will impact the digital economy, free expression, privacy, security, consumer protection, and taxation. Just as we once built an architecture for cross-border flow of goods, we need to build an architecture for cross-border flow of information.

"The Charming Betsy and the Paquete Habana" 
UC Davis Legal Studies Research Paper No. 485

WILLIAM S. DODGE, University of California, Davis - School of Law
Email: wsdodge@ucdavis.edu

This chapter for the book "Landmark Cases in Public International Law" discusses two famous U.S. Supreme Court decisions - The Charming Betsy (1804) and The Paquete Habana (1900). Although written nearly one hundred years apart, each decision appears to stand for similar propositions - that international law has an important place in the law of the United States, but that U.S. domestic law should prevail in the event of conflict. What often goes unnoticed is that the Supreme Court decided these cases against the backdrop of very different understandings about international law and its relationship to U.S. domestic law.

In addition to discussing the background and significance of each case, this chapter describes three shifts in U.S. thinking about customary international law during the nineteenth century. First, the theoretical foundations of customary international law shifted away from natural law towards positivism. Second, the consent requirement for making customary international law shifted from the individual consent of each state to the consent of states generally. And third, the U.S. understanding of the relationship between international law and domestic law shifted away from monism towards dualism - away from an understanding that international law was part of U.S. law unless displaced, towards an understanding that international law was not part of U.S. law unless adopted. The Charming Betsy and The Paquete Habana are landmark cases not because they changed the course of international law in the United States but because they reveal changes in the landscape.

"Probate Lending" 
Yale Law Journal, Vol. 126, 2016
UC Davis Legal Studies Research Paper No. 492

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

One of the most controversial trends in American civil justice is litigation lending: corporations paying plaintiffs a lump sum in return for a stake in a pending lawsuit. Although causes of action were once inalienable, many jurisdictions have abandoned this bright-line prohibition, opening the door for businesses to invest in other parties' claims. Although some courts, lawmakers, and scholars applaud litigation lenders for helping wronged individuals obtain relief, others accuse them of exploiting low-income plaintiffs and increasing court congestion.

This Article reveals that a similar phenomenon has quietly emerged in the probate system. Recently, companies have started to make "probate loans": advancing funds to heirs or beneficiaries to be repaid from their interest in a court-supervised estate. The Article sheds light on this shadowy practice by empirically analyzing 594 probate administrations from a major California county. It finds that probate lending is a lucrative business. Nevertheless, it also concludes that some of the strongest rationales for banning the sale of causes of action - concerns about abusive transactions and the corrosive effect of outsiders on judicial processes - apply to transfers of inheritance rights. The Article thus suggests several ways to regulate this nascent industry.

"The Social Transmission of Racism" 
Tulsa Law Review, Vol. 51, 2016
UC Davis Legal Studies Research Paper No. 489

LISA CHIYEMI IKEMOTO, University of California, Davis - School of Law
Email: lcikemoto@law.ucdavis.edu

This essay reviews two books, Robert Wald Sussman, The Myth of Race: The Troubling Persistence of an Unscientific Idea (Harvard University Press 2014) and Osagie K. Obasogie, Blinded by Sight: Seeing Race Through the Eyes of the Blind (Stanford University Press 2014). Sussman is an anthropologist who brings his expertise to bear in tracing scientific racism through history. Obasogie is a legal scholar and sociologist who uses both qualitative data gathered through interviews with blind and sighted people and Critical Race Theory to explore racialization's dependence on the idea that race is visually obvious. Each book examines an idea that has sustained racism despite social, political and geographic change. The essay assesses each account and links the authors' analyses to judicial and legislative framings of reproductive rights and to postmodernist scholarship on race, gender and the human body.

"Computer Source Code: A Source of the Growing Controversy Over the Reliability of Automated Forensic Techniques" 
DePaul Law Review, Forthcoming
UC Davis Legal Studies Research Paper No. 487

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

The article deals with two legal issues posed by the growing trend in the United States to automate forensic analyses.

Since World War II, we have had alarming insights into the unreliability of both eyewitness testimony and confession evidence. Those insights have prompted the criminal justice system to place greater reliance on forensic evidence. In one Rand study, the researchers found that expert testimony was presented at 86% of the trials examined. This shift to greater use of expert testimony has placed growing demands on crime laboratories. For example, the backlog of unanalyzed DNA samples has become such an acute problem that Congress was impelled to enact the DNA Backlog Elimination Act to provide funding to reduce the backlog of untested rape kits.

In both the public and private sectors, the typical response to the development of a backlog is technological automation. That has certainly held true for forensic analysis. There is now widespread automation in such areas as fingerprint examination, breath testing, and DNA analysis. The argument runs that automation holds the promise of both enhancing efficiency and improving the accuracy of the analyses proffered in court.

That promise turns on the accuracy of the source code controlling the software governing the automated techniques. The source code embeds the instructions determining which tasks the program performs, how the program performs them, and the order in which it performs the tasks. The validity of a program's source code is the most fundamental guarantee of a software program's reliability. Defense counsel have sometimes challenged the software for automated forensic techniques. Early in this century, the defense counsel attacked the software controlling automated infrared breath testing devices. Today they are challenging the software for the TrueAllele program analyzing mixed DNA samples. Those waves of cases have posed two issues: (1) whether the prosecution can lay a sufficient foundation for evidence based on an automated technique without presenting testimony about the computer source code; and (2) whether the defense has any discovery right to access to the code. Almost all the courts have answered the first question in the affirmative and the second question in the negative. In responding to the second question, the courts have reasoned that the existence of validation studies for the technique eliminates any need to scrutinize the source code and that in any event, manufacturers have an evidentiary privilege protecting the code as a trade secret. The purpose of this short article is to critically evaluate the judicial response to both questions.

On the one hand, the article argues that the courts have correctly answered the first question. More specifically, the prosecution may lay an adequate foundation by presenting testimony describing validation studies for the automated technique even if the testimony does not touch on the source code. On the other hand, the article contends that in some cases, the courts ought to accord the defense a pretrial discovery limit. The article explains the limited utility of validation studies and notes that the evidentiary privilege for trade secrets is a qualified one that can be surmounted when the party seeking discovery has a significant need for the information. The article proposes a procedure that judges can employ to resolve the tension between the defendant's need for access to the source code and the manufacturer's legitimate interest in safeguarding its valuable proprietary information.

"Beyond Surveillance: Data Control and Body Cameras" 
__ Surveillance & Society __ (2016) Forthcoming
UC Davis Legal Studies Research Paper No. 494

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

Body cameras collect video data - lots of it - and thus many have raised questions about increased government surveillance. But if understood primarily as data collection, surveillance represents only one concern. In our big data age, "seeing, monitoring, and recording the digital footprints is quite different from sharing, releasing, revealing or publicizing the data." Body camera policies must address not only concerns about surveillance, but also data control.

"Some Thoughts on the Future of Legal Education: Why Diversity and Student Wellness Should Matter in a Time of 'Crisis'" 
Buffalo Law Review, Forthcoming
UC Davis Legal Studies Research Paper No. 488

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

Some vocal critics have loudly proclaimed that the challenges of law school economic have reached "crisis" proportions. They point to the well-known facts about recent developments in the market for law schools. Law schools have experienced a precipitous drop in applications. The global recession decimated the legal job market. To make matters worse, rising tuition has resulted in increasing debt loads for law graduates.

In light of the changes in the legal marketplace, stabilization of the budgetary picture is currently the first priority of virtually every American law school. Faculty members have been let go. Staffs reduced. Enrollment of students - and the collection of tuition revenues - have critical budgetary consequences.

Linked to the economic "crisis" facing law schools and students was deep concern with each school's relative placement in the much-watched U.S. News and World Report law school rankings. These rankings, among other things, affect admissions and enrollment, and thus budgetary bottom lines for law schools.

Much less publicized concerns with legal education involve non-financial issues. The lack of racial and other diversity of students attending law school, and ultimately entering the legal profession, and faculty, has long been a problem. In addition, today's students demand a more humane legal education and are asking for additional academic support, career and mental health counseling, experiential learning opportunities, and more. The costs of the additional services and programs have further added to budgetary pressures on law schools.

This Essay contends that law schools should strive to address the noneconomic as well as the economic problems with modern legal education. In a time of considerable change, this is a most opportune time to consider and implement deep and enduring improvements that benefit students as well as the entire legal profession.

"Welfare Queens and White Trash" 
25 Southern California Interdisciplinary Law Journal 289 (2016)
UC Davis Legal Studies Research Paper No. 486

LISA R. PRUITT, University of California, Davis - School of Law
Email: lrpruitt@ucdavis.edu

The "welfare queen" is widely recognized as a racialized construct deployed by politicians to undermine support for public benefits and the wider social safety net. Less often recognized or discussed is the flip side of the welfare queen's conflation of blackness with dependency and poverty: the conflation of whiteness with self-sufficiency, autonomy, and affluence. The welfare queen trope, along with media and scholarly depictions of socioeconomic disadvantage as a nonwhite phenomenon, deflects attention from white poverty. Yet data indicate that a majority of poor people in the United States self-identify as white.

This essay, written for the "Reframing the Welfare Queen" symposium, (re)surfaces the existence of white poverty and ponders its (in)visibility, meaning, and significance in relation to the welfare queen construct. Among other things, Pruitt suggests that the welfare queen stigmatype is not just bad for blacks, it is bad for poor whites. First, it obscures white poverty, rendering poor whites and their plight invisible. Second, to the extent we are aware of white poverty, the widespread conflation of whiteness with affluence suggests that poor whites have only themselves to blame, given the benefits widely associated with white-skin privilege.

Given the welfare queen's potency as a racialized construct, we might assume that greater awareness of white poverty would enhance public support for safety net programs because middle and upper income whites would (so the story goes) want to ameliorate white poverty, even if racial animus discourages their support for poor blacks. But Pruitt questions the soundness of this line of reasoning, which discounts the existence and potency of intraracial discrimination in assuming that society feels greater empathy with or concern for the fate of poor whites than for poor nonwhites. In fact, we have several reasons - including empirical studies - to believe that such a well of empathy is missing. A further reason for skepticism is found in a second racialized construct explored in this article: white trash.

"Tax Cannibalization and Fiscal Federalism in the United States" 
Northwestern University Law Review, Forthcoming
UC Davis Legal Studies Research Paper No. 491
UC Berkeley Public Law Research Paper No. 2750933

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

The current structure of U.S. federal tax law incentivizes state governments to adopt tax policies that inflict costs on the federal government, at the expense of national welfare. We label this the "tax cannibalization problem."

This article introduces the tax cannibalization problem to the law and policy literatures for the first time. This article also explains how U.S. federal tax law might be restructured so as to alleviate the tax cannibalization problem - to counteract the perverse incentives currently leading U.S. state governments to design their tax systems so as to, in effect, wastefully devour federal tax revenues.

"Stitches for Snitches: Lawyers as Whistleblowers" 
UC Davis Law Review, Forthcoming (2017)
UC Davis Legal Studies Research Paper No. 493

DENNIS J. VENTRY, University of California, Davis - School of Law
Email: djventry@ucdavis.edu

This Article challenges the prevailing wisdom that ethics rules forbid lawyers from blowing the whistle on a client's illegal conduct. While a lawyer is not free to disclose confidential information in every jurisdiction for every legal violation, the ethics rules in all jurisdictions permit disclosure of confidential information pertaining to a client's illegal activities under certain conditions. Proving the lie of the prevailing wisdom, this Article examines a high profile case in the state of New York that ruled a lawyer whistleblower violated the state's ethics rules by revealing confidential information to stop his employer-client from engaging in a tax fraud of epic proportions. The Article argues that the court undertook a deficient analysis of New York ethics rules pertaining to permissive disclosure of confidential client information. Even if the whistleblower had violated his ethical obligations, the New York False Claims Act (the statute under which he brought his action) expressly protects disclosure of confidential employer information made in furtherance of the statute. In addition to New York's statutory shield, federal courts across the country have developed a public policy exception safeguarding whistleblowers for disclosing confidential information that detects and exposes an employer's illegal conduct.

While challenging the previously unchallenged criticism of lawyer whistleblowers, this Article acknowledges the intrinsic appeal of that position. The idea of a lawyer revealing a client's transgressions - particularly for monetary awards paid under various federal and state whistleblower programs - seems unsavory and a threat to the attorney-client relationship. Nonetheless, lawyers have always had the discretion to disclose confidential information to prevent a client from committing a crime or fraud. And although the addition of financial incentives complicates the analysis, modern ethics rules extend to lawyers considerable discretion in revealing confidential client information, even if disclosure makes a lawyer eligible for financial awards.

April 27, 2016

Would JASTA Violate International Law?

Cross-posted from Just Security.

Writing in The New York Times last Friday, Curt Bradley and Jack Goldsmith argued that the Justice Against State Sponsors of Terrorism Act (JASTA) would "violate a core principle of international law," the principle of foreign sovereign immunity. At Lawfare, former State Department Legal Adviser John Bellinger seconded their assertion. Earlier in the week, White House Press Secretary Josh Earnest expressed similar concerns. (For a good primer on JASTA and its background, see Steve Vladeck's post here.) The amount of legal analysis one can fit into an op-ed is necessarily limited, and it would be welcome to see Curt, Jack, John, or others flesh out the argument. But, in my view, there are serious problems with the assertion that JASTA would violate customary international law governing sovereign immunity, problems that raise more general questions of how one identifies rules of customary international law.

Curt and Jack summarize their international law argument this way: 

A nation's immunity from lawsuits in the courts of another nation is a fundamental tenet of international law. This tenet is based on the idea that equal sovereigns should not use their courts to sit in judgment of one another. Many nations have tacitly agreed to limit immunity in specified contexts, such as when they engage in certain commercial activities. But apart from those exceptions (or where a binding treaty or Security Council resolution otherwise dictates), international law continues to guarantee immunity, even for alleged egregious crimes.

The first question to ask is where this fundamental tenet of international law comes from. I believe it is common ground that - as the Restatement (Third) of Foreign Relations Law puts it - "[c]ustomary international law results from a general and consistent practice of states followed by them from a sense of legal obligation." If one looks at state practice with respect to foreign sovereign immunity, one finds some situations in which states are consistently held to be immune from the jurisdiction of the courts of other states, other situations in which states are consistently held not to be immune, other situations in which the practice is mixed, and still other situations in which there is no practice at all. How should one make sense of this practice?

Curt and Jack's approach with respect to foreign sovereign immunity seems to be to infer a general rule of immunity based on state practice granting immunity and to treat the state practice denying immunity as establishing exceptions to the general rule. Where the practice is mixed or non-existent, the general rule of immunity would govern because there is not a "general and consistent practice of states" sufficient to create an exception. Of course, this is not the only possible way to read the existing state practice. One could instead infer specific rules of immunity only in those situations where there is a general and consistent practice of granting immunity. Under this approach, where the practice is mixed or non-existent, a general rule of non-immunity would govern. As Curt has recently written on page 34 in his excellent contribution to the book Custom's Future, one must "necessarily make choices about how to describe [state practice], which baselines to apply in evaluating it, and whether or when to extend or analogize it to new situations." I agree. My point is simply that the choices Curt and Jack have made in their analysis of sovereign immunity are choices - and they need to be defended.

One way to defend their approach would be to invoke the International Court of Justice's 2012 decision in the Jurisdictional Immunities Case (Germany v. Italy), which took a similar approach to questions of sovereign immunity. But the ICJ took this approach because the state parties to the dispute both agreed on it. See paragraph 61 ("Both Parties agree that States are generally entitled to immunity in respect of acta jure imperii."). In light of the parties' agreement, the ICJ was certainly justified in starting with a general rule of immunity and then looking for state practice sufficient to support exceptions. But as Curt again has reminded us in his contribution to Custom's Future, "ICJ decisions are technically binding only on the parties and thus should not automatically be treated as the last word by the international community on the content of [customary international law]" (p. 59).

Even if one adopts Curt and Jack's basic approach to sovereign immunity, there remains the question of how broadly or narrowly to read the state practice creating exceptions to the general rule. There is lots of state practice supporting a territorial tort exception to sovereign immunity - that is, an exception for torts that occur in the nation that would exercise jurisdiction over the foreign state. (See Jurisdictional Immunities paragraphs 62-79.) This is what allows Americans injured in traffic accidents by a foreign government employee to sue the foreign state for damages. One might argue that this state practice should be read narrowly to apply only in these sorts of situations. But states that have codified the exception have done so in general terms applicable to any tort.

The US Foreign Sovereign Immunities Act (FSIA) also codifies the territorial tort exception in general terms. (See 28 U.S.C. § 1605(a)(5).) But US courts have interpreted it to require that the "entire tort" occurs within the United States. (See the Second Circuit Court of Appeals 2013 decision from In re Terrorist Attacks on September 11, 2001.) It is this limitation that JASTA would remove. JASTA would still require that there be "physical injury or death, or damage to or loss of property, occurring in the United States," but it would make clear that the territorial tort exception applies "regardless of where the underlying tortious act or omission occurs."

Customary international law does not seem to require the "entire tort" limitation. Article 12 of the United Nations Convention on Jurisdictional Immunities of States and Their Properties would apply the territorial tort exception if the act or omission occurred "in whole or in part" in the territory of the state exercising jurisdiction. Most nations that have codified the exception appear to require some act or omission in their territories, but it is not clear that these nations have done so from a sense of international legal obligation rather than from comity. Even if customary international law were properly read to preclude a nation from applying the territorial tort exception solely on the basis of death and damage within its territory, the application of JASTA to the 9/11 cases would still not violate international law, since the 9/11 attacks clearly involved tortious acts in the United States.

Another, more controversial, path would be to expand the FSIA's terrorism exception, so that it covers state-sponsored terrorism even when the foreign state has not been designated by the State Department as a state-sponsor of terrorism, as is currently required under the FSIA. JASTA would not do this, but Curt and Jack discuss it at some length, so it is worth considering. They assert that the current exception "is almost certainly contrary to international law." If this is true of the existing exception, then it would also be true of an expanded exception.

But I am not so sure that the terrorism exception violates customary international law. First, the United States is not alone in having adopted such an exception - Canada has done so too in Section 6.1 of its State Immunity Act. Second, to my knowledge, these exceptions have not provoked the sorts of widespread protests one might expect from other nations in the event of a clear violation of customary international law. Curt and Jack anticipate this point, explaining that "[t]he controversy has been muted, however, because the exception applies to only a few nations designated as bad actors by the executive branch." This is true, but explaining away the absence of protests is not the same thing as having such protests as evidence of state practice. Third, Curt's and Jack's argument here necessarily depends on the choices they made at the outset about how to organize existing state practice. This is a situation in which the state practice is mixed - two states have such exceptions but most do not. Whether customary international law requires immunity for state-sponsored terrorism depends on whether one begins from a baseline of immunity (as Curt and Jack do) or from a baseline of non-immunity. To repeat what I said above, this is a choice and must be defended.

Of course, Curt and Jack are trying to make a policy argument based on reciprocity too. They write: "If the United States reduces the immunity it accords to other nations, it exposes itself to an equivalent reduction in its own immunity abroad." But their reciprocity argument against JASTA depends on several propositions. First, it depends on the proposition that other states would view the immunity that the United States currently extends (and that JASTA would take away) as required by international law. If not, then they are already free to reduce the immunity they extend the United States, whether JASTA passes or not. Second, it depends on the proposition that other countries would read JASTA broadly to authorize exceptions to sovereign immunity in non-identical situations. Curt and Jack write: "It might appear that the United States has little to fear in lawsuits abroad for acts of terrorism akin to 9/11. But terrorism is often in the eye of the beholder, and reciprocity need not be precise." A broad reading of JASTA is possible, but certainly not inevitable, and the United States would have strong arguments that its practice should be read more narrowly. Finally, Curt and Jack's reciprocity argument depends on the proposition that international law influences the behavior of other states. I believe that to be true, but Jack has co-written an entire book disputing the proposition. See The Limits of International Law.

In the end, I am not certain whether Congress should pass JASTA. Much depends on how one weighs the benefits of providing legal redress for victims of terrorism against the impact on relations with countries like Saudi Arabia that currently cooperate with US counterterrorism efforts. But as a legal matter, the argument that JASTA would violate international law is far from clear.

January 15, 2016

Immigration Article of the Day: "The Mediterranean Migration: A Clash of Titans' Obligations?" by Barbara Miltner

Cross-posted from Immigration Prof Blog.

Here's my pick for Immigration Article of the Day for the blog:

The Mediterranean Migration: A Clash of Titans' Obligations? by Barbara Miltner, UC Davis School of Law, December 2015, The Brown Journal of World Affairs, Fall/Winter 2015, Vol. XXII, Issue I, UC Davis Legal Studies Research Paper No. 476

Abstract: Nearly 670,000 migrants crossed the Mediterranean to reach European shores in the first ten months of 2015. The influx has been characterized as the greatest migration crisis since World War II. The associated death toll is equally alarming. In April alone, over 800 migrants died in the largest maritime refugee disaster on record, provoking calls for an immediate response. Following an emergency summit, EU leaders reacted by launching new criminal anti-smuggling measures and an intensive maritime surveillance program in the Mediterranean, among other measures. The response has been criticized for its emphasis on militarized border control strategies at the expense of humanitarian protection measures in relation to maritime rescue and asylum screening. Certainly, such an enforcement-oriented approach to border controls is not new, but it is legally problematic. This article examines the latest European response to the Mediterranean migration crisis from an international legal standpoint. It considers aspects of the proposal with regard to the roles and conduct of individual member states, as well as those of the EU border control agency Frontex. The article examines recent jurisprudential developments, both within and beyond the European sphere, to highlight new and emerging legal limitations on state actors at sea.

December 23, 2015

Dodge and Elmendorf Publish in Columbia Law Review

The December issue of the Columbia Law Review is out, and two of its scholarly articles come from King Hall faculty: William S. Dodge and Christopher S. Elmendorf.

Professor Dodge's article is International Comity in American Law. Abstract: "International comity is one of the principal foundations of U.S. foreign relations law. The doctrines of American law that mediate the relationship between the U.S. legal system and those of other nations are nearly all manifestations of international comity-from the conflict of laws to the presumption against extraterritoriality; from the recognition of foreign judgments to the doctrines limiting adjudicative jurisdiction in international cases; and from a foreign government's privilege of bringing suit in the U.S. courts to the doctrines of foreign sovereign immunity. Yet international comity remains poorly understood. This Article provides the first comprehensive account of international comity in American law. It has three goals: (1) to offer a better definition of international comity and a framework for analyzing its manifestations in American law; (2) to explain the relationship between international comity and international law; and (3) to challenge the myths that international comity doctrines must take the form of standards rather than rules and that international comity determinations should be left to the executive branch."

Professor Elmendorf's article (with Douglas M. Spencer) is Administering Section 2 of the Voting Rights Act After Shelby County. Abstract: "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 Article 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; and second, that the courts have authority to regularize section 2 adjudication by creating rebuttable presumptions. Most 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 reduce 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."

Congratulations on these prestigious placements, Professors Dodge and Elmendorf!

November 11, 2015

"The Uncondemned" at Napa Valley Film Festival, Nov. 12-15

"The Uncondemned," a feature documentary about the first conviction of rape as a war crime, is showing at the Napa Valley Film Festival, which starts tomorrow, Thursday Nov. 12.  

That first conviction came in 1998 in a decision by the International Criminal Tribunal for Rwanda (ICTR) in the case against Jean-Paul Akayesu, the mayor of Taba Commune.  I worked at ICTR as a gender consultant in 1996, analyzing the evidence of sexual assault in the Akayesu matter, and I am therefore one of the "baby lawyers" who worked on the case and who is featured in the film. (Photo below from 1996, as we flew between Kigali where the Office of the Prosecutor was located and Arusha, Tanzania, where the tribunal judges sat.) 

The film already won two awards at the Hamptons International Film Festival, including the Brizzolara Family Foundation Award for the best film about conflict and resolution. The Guardian.com filed this story about the film and that award.

I have seen the film once before, this summer in Rwanda when the Rwandan witnesses (one of whom is pictured in the flyer) saw it for the first time.  Read more in this previous blog entry.  I'm looking forward to seeing it again tomorrow night, this time with two UC Davis colleagues, Keith Watenpaugh (Religious Studies, History, Human Rights) and Michael Lazzara (Spanish, Cinema and Digital Media). Both are involved with UC Davis's Human Rights Initiative, a project of the Davis Humanities Institute.  Hope to see some of you in Napa this weekend, where the film will be shown at a different venue each day.  Here is the schedule.

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!

December 16, 2013

Prof. Karima Bennoune to Deliver Guest Lecture in Middle East/South Asia Studies

Please note new date below.

Professor Karima Bennoune will deliver a guest lecture on February 10 in the Department of Middle East/South Asia Studies at UC Davis. The public lecture is titled, "Sidi Bouzid Blues and the Green Wave: Journeys through the Arab Spring and Fall."

July 13, 2013

New Book: The Electronic Silk Road, by Anupam Chander

Yale University Press has just published The Electronic Silk Road: How the Web Binds the World Together in Commerce. The book has been hailed as a "tour de force" by leading trade economist Jagdish Bhagwati of Columbia University, a "must read" by Senator Chris Coons, and "engaging" and "important" by Ricardo Ramírez-Hernández, Chair of the Appellate Body, World Trade Organization.

The hardcover is available from Amazon here, as is a Kindle version.

Former World Trade Organization Director-General Michael Moore, currently New Zealand's Ambassador to the United States, tweeted: "What am I reading? "The Electronic Silk Road" by @AnupamChander explains essential issues for modern trade agenda."

The book has received extensive advance praise from key figures in international law and economics.

  • "An extraordinarily lucid and colorful description of the way cybertrade is changing global commerce -- and global society. Chander proposes realistic legal arrangements that can secure the Web’s benefits and avert its perils. This is an important book."—Michael Reisman, Yale Law School
  • "The world of commerce has changed for services. A masterly analysis of the implications of this development, this book is a tour de force."— Jagdish Bhagwati, University Professor, Columbia University
  • “A must read for those interested in globalization in the information age and the public policy challenges, opportunities, and pitfalls that will result. Anupam Chander offers an insightful primer on international cyberlaw and a thoughtful set of proposals for adapting to a changed world.” —Chris Coons, United States Senator
  • “This engaging book makes a powerful argument for embracing trade, without displacing law, along the new digital trade routes. Indeed, it recognizes law as crucial to promoting both trade and consumer protection. This is an important contribution to thinking about the international legal order.”—Ricardo Ramírez-Hernández, Chair of the Appellate Body, World Trade Organization
  • “Chander examines how international trade is ordering human rights and free expression in the digital age. Virtual borders and transnational corporations are here to stay, and Chander’s notion of ‘net-work’ offers us a sobering analysis of the dangers, and the possibilities.”—Deji Olukotun, PEN American Center
  • “Chander accentuates what is often forgotten--the importance of law underlying the digital evolution. Highly readable and enjoyable, The Electronic Silk Road is a piece of sound intellectual work, which is handsomely written.”—Mira Burri, University of Bern
  • “Anupam Chander takes us on a fascinating journey, raising provocative questions on how to balance competing global and local interests when managing new trade dynamics. Anyone interested in the digital transformation of commerce should consider carefully Chander’s insights.”—Mark Wu, Harvard Law School

The Electronic Silk Road

May 10, 2012

Madhavi Sunder's Important New Book Now Available for Pre-Order

Most scholarship on intellectual property considers this law from the standpoint of law and economics. Under this conventional wisdom, intellectual property is simply a tool for promoting innovative products, from iPods to R2D2. In this highly original book Madhavi Sunder calls for a richer understanding of intellectual property law’s effects on social and cultural life. Intellectual property does more than incentivize the production of more goods. This law fundamentally affects the ability of citizens to live a good life. Intellectual property law governs the abilities of human beings to make and share culture, and to profit from this enterprise in a global Knowledge economy. This book turns to social and cultural theory to more fully explore the deep connections between cultural production and human freedom.

Should be available on May 21, 2012--Order here.


March 24, 2012

Rural Women and the Limits of Law: Reflections on CSW 56

The United Nations 56th Session of the Commission on the Status of Women (CSW 56) featured as its priority theme this year "the empowerment of rural women and their role in poverty and hunger eradication, development and current challenges."  This focus on rural women is long overdue, given that rural women comprise a quarter of the world's population.  Further, women provide 43% of the world's agricultural labor, and they produce half of the world's food for direct consumption.  In fact, non-governmental organizations (NGOs) discovered some time ago that women--referred to by many as the "architects of food security"--are key agents of development.  One reason for this is that when women and girls receive income, they reinvest 90% of it in their families.  In spite of their transformative potential to reduce hunger and poverty, women own less than 2% of land worldwide and they receive less than 10% of available credit.

As one whose scholarship focuses on rural livelihoods in both the United States and abroad, I was pleased to attend three days of the two-week CSW 56 event (February 27-March 9) as an observer for the American Society of International Law. As a former gender consultant for the United Nations, I was prepared for some of what I saw (e.g., bureaucracy), but the experience also held a few surprises. One thing that intrigued me about the “Session”—which is not a session at all but a dizzying array of “high-level round tables” and other meetings, panel discussions, “side events,” and “parallel events”—is that discussion of law was relatively absent. Furthermore, relatively little of the substance of these gatherings focused on rural women in a way that went beyond adding the modifier “rural” to whatever issue was being discussed. Rather than engaging with the circumstances that often distinguish rural women’s lives from those of their urban counterparts, many of the sessions seemed merely to “add rural women and stir” in relation to a well-recognized (and admittedly very important) women’s issue (e.g., female genital mutilation, child marriage). Other sessions did take up issues more central to rural livelihoods, including spatial removal from services and agents of the state, and women’s roles in agricultural production. The lack of significant engagement with the particular challenges facing rural women is reflected in the fact that none of the resolutions adopted by the Commission was about rural women. Nor did the Commission adopt any agreed conclusions on the priority theme of the 56th Session.

In contrast to CSW’s somewhat anemic approach to the priority theme, Article 14 of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) addresses the rights of rural women as a group. Indeed, CEDAW is the first human rights treaty to recognize rural difference, to acknowledge rural populations. While Article 14 guarantees to rural women all the rights enumerated elsewhere in CEDAW, the article also addresses rights specific to rural women. These include the right:

  • to be involved in “development planning at all levels”;
  • to benefit from “all community and extension services” among other types of education;
  • to “organize self-help groups and cooperatives in order to obtain equal access to economic opportunities”;
  • “to have access to agricultural credit and loans, marketing facilities, appropriate technology and equal treatment in land and agrarian reform, as well as in land resettlement schemes”; and
  • “to enjoy adequate living conditions, particularly in relation to housing, sanitation, electricity and water supply, transport and communications.”

Read more about Article 14, its history, and its implementation herehere, and here. Given the particular attention paid to rural women in this germinal women’s rights treaty, one might have anticipated considerable attention to the provision and its potential at CSW 56. Not so at the sessions I attended. I heard Article 14 mentioned only a couple of times.

It is a common bias among lawyers to presume law can solve problems and should be used to do so. Lawyers may be more skeptical about whether international law is effective at solving problems, attributing failures to the lack of enforceability of international law and the lack of respect for the rule of law, particularly in the developing world. As a ruralist, I have asserted that law is less effective at addressing problems in rural locales for some similar reasons. That is, when legal institutions and legal actors (including lawyers) are literally less present, laws on the books are less potent and the rule of law withers. All of these issues related to the relevance, authority, and efficacy of law were in play—sometimes explicitly, more often implicitly—in the attention CSW 56 gave to rural women.

Many of the participants in CSW 56 were not lawyers—nor were they UN or national officials. Rather, the vast majority of participants were associated with NGOs that have consultative status with the UN Economic and Social Council. Indeed, on each morning of CSW 56, officials with UN Women held a briefing for NGO representatives (also referred to as “civil society”). By the middle of the first week, UN Women announced that 1,598 NGO representatives from 358 NGOs were engaged in the annual gathering.

At these daily briefings, UN Women officials offered affirmations to NGO representatives, assuring them of the importance of their efforts. The UN officials also offered updates on what was happening at the “high-level meetings” that few NGO representatives had permission to attend. In spite of their exclusion from many of the events where member states were in direct talks, NGOs presented a robust and varied array of panel discussions. A tiny sampling of the topics and their sponsors follows:

  • Women and Corruption: Grassroots Experiences and Strategies, Huairou Commission, UN Development Program
  • Empowering Caregivers to Build Healthy Sustainable Communities, Huairou Commission, GROOTS International, International Council of Women
  • Rural Women's Groups and Key Stakeholders Frame Joint Actions, Government of Norway, Huairou Commission, GROOTS International, UN Women, UN-Non Governmental Liaison Service, Baha'i International Community, Food and Agriculture Organization, International Fund for Agricultural Development, World Food Program, Landesa
  • Rural Women Speak: Land, Health and Rights in Africa, FEMNET
  • Rural Girls and Urban Migration: The Role of Communications for Development in Bridging the Divide, UN-HABITAT, Plan International, UNESCO, Women in Cities International
  • Measuring Change for Rural Women in Sub-Saharan Africa, Global Fund for Women

Here is a link to the official programming, and a full listing of the NGO programming is here.

While most commentators in these parallel and side events presumed developing world contexts, a few offered reminders that biases against women persist in the developed world, too, including in relation to agriculture. In other words, Australia, Canada, the United States (just to name a few) all have work to do to empower women, including those in rural areas. (To be clear, unlike these other nations, the U.S. has never ratified CEDAW and is not bound by it).

This sampling of events demonstrates my earlier points about both the relative absence of attention to law’s role in solving the problems of rural women (and perhaps, by implication, all women), and also the shortage of programming regarding issues unique to rural women. To the extent that the particular concerns and circumstances of rural women were center stage, the focus typically related to agriculture. Among these were issues such as access to credit and means of marketing their products, the relative merits of “sustainable” agriculture versus intensive production agriculture, and an issue that more squarely implicates law: women’s right to own land. Officials from UN Women reported that diplomats participating in CSW 56 were sharing examples of legislation that would achieve land reform and improve land distribution schemes, but in the next breath they acknowledged the challenge of getting these laws implemented and enforced.

The need for legal reform arose in other contexts, too, but so did law’s limitations. For every comment I heard about the utility of Article 14 of CEDAW (or some other progressive national or international law) and the importance of legal and policy environments that were conducive to women’s empowerment, I also heard words of caution about the limits of law. Government and UN officials were more likely to tout the power of law, while NGOs were more likely to focus on village realities that often undermine the rule of law. Among those offering caveats regarding the potency of law were those who noted that many will be reluctant to invoke it—including criminal laws—in relation, for example, to forced child marriage. One African NGO representative stated,

Face reality ... be honest. Even in America, who tells the law? Maybe [the victims and their families] are illiterate ... [child marriage] is their custom. Who goes to tell the law except the child? And how can the child go tell the law?

This is where all of us come in ... if your NGO is interested in solving these problems. You go [to the village], watch the ways things are done and then talk to the educated locals [so that they begin to see the social and economic costs of the practice, e.g., child marriage]. And they will know they must do something.

This woman, like many others I heard over three days, extolled the importance of grassroots efforts to achieve the empowerment of women.

Wherever one might strike the balance between formal law on the one hand and local, grassroots efforts to educate and achieve cultural change on the other, few coming out of CSW 56 would dispute that both have significant roles in empowering not only rural women, but indeed all women.

Originally posted to Jurist.org; cross-posted to Legal RuralismIntLawGrrls and Agricultural Law.