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.

Editor's Note: The following is Professor Anupam Chander's "Letter from the Director" published in the California International Law Center's 2015-15 Annual Newsletter.

Dear Colleagues,

International and comparative law continues to thrive at UC Davis School of Law. I highlight here some recent news about our highly productive international and comparative law faculty, as well as news about the California International Law Center's plans for the upcoming year.

Professor Karima Bennoune was named the United Nations Special Rapporteur in the field of cultural rights. Her first report to the UN Human Rights Council can be viewed here. A second report on the intentional destruction of cultural heritage is available here. The Sacramento Bee featured her prize-winning book, Your Fatwa Does Not Apply Here, which won the 2014 Dayton Literary Peace Prize. She is currently teaching a seminar where UC Davis law students help provide research for her United Nations reports.

Professor William Dodge, who joined our faculty last year after having served as the Honorable Roger J. Traynor Professor of Law at UC Hastings, continues his work as Co-Reporter for the American Law Institute's Restatement (Fourth) of Foreign Relations Law: Jurisdiction and as a member of the State Department's Advisory Committee on International Law. His article" International Comity in American Law" was published last December in the Columbia Law Review.

I'm so pleased to announce that Professor Afra Afsharipour will serve as the Associate Director of the California International Law Center. She recently published The India Corporate Governance Handbook, a key reference tool in understanding Indian corporate regulations.

Professor Madhavi Sunder took up the position of Senior Associate Dean at UC Davis School of Law as Professor Vik Amar left to become Dean of the University of Illinois College of Law. We wish Professor Amar great success in Urbana-Champaign. Professor Sunder published The Luxury Economy and Intellectual Property, with Oxford University Press. Co-edited with Haochen Sun, Associate Professor of Law and Deputy Director of the LLM Program in Information Technology and Intellectual Property at the University of Hong Kong, and Barton Beebe, the John M. Desmarais Professor of Intellectual Property Law at New York University School of Law, the book comprehensively explores the rise of the luxury goods economy and the growing role of intellectual property in creating, sustaining, and regulating this economy.

I just returned from speaking in Brasilia last week and am off to Tokyo this coming week to speak before the Keidanren, the Japanese business federation, on issues of cross-border Internet regulation. I published a paper in the Emory Law Review with Uyen Le, Senior Research Fellow at the California International Law Center. I also authored a new paper, "The Racist Algorithm?," which is forthcoming in the Michigan Law Review. Professor Kriss Ravetto-Biagioli and I were pleased to receive a major grant from the Mellon Foundation for a Mellon Sawyer Seminar Series on "Surveillance Democracies?," which supported a lecture series during the 2015-2016 school year.

Professor Peter Lee was awarded the 2016 Distinguished Teaching Award, an honor bestowed to only one professor per year.

Just this month, Dean Kevin Johnson led some of our extraordinary immigration and refugee law faculty to a major UC Davis cosponsored conference on Migration and Asylum at the University of Geneva, Switzerland. Professors Leticia Saucedo, Brian Soucek, Rose Cuison Villazor spoke at the conference, along with Dean Johnson. UC Davis law aluma Jihan Kahssay '12 also participated.

The Center also invited several speakers from across the world as part of our mission to educate King Hall on current international and comparative law matters. We were pleased to host distinguished international lawyers including Judge Seung Wha Chang, Member of the Appellate Body of the World Trade Organization; Dr. Edward Kwakwa, Legal Counsel for the World Intellectual Property Organization; and Ms. Andrea Bjorklund, International Arbitration and Commercial Law Professor at McGill University. We hosted the Northern California International Law Scholars Works-In-Progress Workshop and the Conference of Asian Pacific American Law Faculty (CAPALF).

The Mellon Sawyer award that Professor Ravetto-Biagioli and I received, in collaboration with Professor Ken Goldberg at UC Berkeley, allowed us to host a year-long multidisciplinary seminar series to explore the tension between the surveillance state and democracy. As part of this seminar series, we invited several academics and practitioners with expertise in privacy law, encryption, and government surveillance. Such experts included Ben Wizner, the ACLU's Free Speech Director and attorney for Edward Snowden; Laura Donahue, Georgetown Law Professor and Director of Georgetown's Center on Privacy and Technology; and Helen Nissenbaum, Professor of Media, Culture and Communication, and Computer Science, and Director of the Information Law Institute, New York University. In addition, we co-hosted with the Mellon Initiative in Digital Cultures a symposium on drones titled "Eyes in The Skies: Drones and the Politics of Distance Warfare."

This fall we welcome Nida Siddiqui '16, who will serve as this year's Law Fellow at the California International Law Center. A former Student Fellow of the Center, Nida will aid in our efforts to educate and engage UC Davis students and the legal community at large on current international law issues, as well as work on international law research.

One highlight of this school year will be the 50th Anniversary UC Davis Law Review symposium with the theme of "Future Proofing Law: From DNA to Robots." We have a stellar lineup of confirmed speakers: California Supreme Court Justice Mariano Florentino Cuellar; Mark Lemley, Stanford University; Jane Bambauer, University of Arizona; Julie Cohen, Georgetown University; Paul Ohm, Georgetown University; Ryan Calo, University of Washington; Mary Anne Franks, University of Miami; Molly Van Houweling, UC Berkeley; Dan Burk, UC Irvine; Hank Greely, Stanford University; Arti Rai, Duke University; I. Glenn Cohen, Harvard University; Laura DeNardis, American University; Nancy Leong, University of Denver; Margot Kaminski, Ohio State University; Mira Burri, University of Lucerne, Switzerland; Gary Marchant, Arizona State University; Mario Biagioli, UC Davis; Lisa Ikemoto, UC Davis; Albert Lin, UC Davis; Peter Lee, UC Davis; and Elizabeth Joh, UC Davis.

None of our work would have been possible without the support of our wonderful staff-Administrative Assistant Nina Marie Bell, Senior Research Fellow Uyên Lê, and Student Fellows Varun Aery '16 and Nida Siddiqui '16. We are also grateful to support from the staff at UC Davis School of Law, including Pamela Wu, Gia Hellwig, and Sam Sellers. We also depended on collaborations with student organizations including King Hall International Law Association, King Hall Intellectual Property Law Organization, and the Journal of International Law & Policy. We also were delighted to co-sponsor events with the Aoki Center for Critical Race & Nation Studies, UC Davis School of Law International Programs, Sacramento Chapter of the World Affairs Council, the State Bar of California's International Law Section of the ABA's Section of International Law, UC Berkeley's Art, Technology, and Culture Colloquium, UC Davis Office of the Provost & Executive Vice Chancellor, Compliance & Policy, and UC Davis Information and Education Technology.

The California International Law Center is committed to increasing King Hall's contribution to the world in developing an understanding both the possibilities and challenges international law poses to our community and values. We thank you for your support and welcome your participation in our activities!

Sincerely,

Anupam Chander

Director, California International Law Center, and

Martin Luther King, Jr. Professor

UC Davis School of Law

Cross-posted from Just Security.

The Justice Against Sponsors of Terrorism Act (JASTA) is now the law of the United States, Congress having overridden President Obama's veto of the bill. Among other things, JASTA amends the Foreign Sovereign Immunities Act (FSIA) by adding a new terrorism exception that is not limited to designated state sponsors of terrorism. The European Union has claimed that JASTA "conflict[s] with fundamental principles of international law and in particular the principle of State sovereign immunity." Because the version of JASTA that is now law differs significantly from the version I considered back in April, it is worth taking a fresh look at whether JASTA violates international law.

The United States has had a terrorism exception in the FSIA since 1996, the current version of which is found at Section 1605A of Title 28 of US code. Section 1605A provides that a foreign state shall not be immune from suits seeking money damages for personal injury or death caused by certain acts like torture and extrajudicial killing-or material support for such acts-by foreign government officials. But this provision is limited to countries designated by the United States as state sponsors of terrorism (currently Iran, Sudan, and Syria).

The new terrorism exception added by JASTA is not limited to state sponsors of terrorism, but it is limited in other ways. The new Section 1605B provides that a foreign state shall not be immune from suits seeking money damages for personal injury or death, or for injury to property, occurring in the United States that is caused by (1) "an act of international terrorism in the United States;" and (2) a tortious act of a foreign state or its officials "regardless where the tortious act or acts of the foreign state occurred." The tortious act of a foreign state may not, however, be an omission or "constitute mere negligence." 

It is clear that customary international law requires states to recognize foreign sovereign immunity in at least some cases. In the Jurisdictional Immunities Case (Germany v. Italy), for example, the International Court of Justice (ICJ) held that international law requires immunity with respect to torts committed by armed forces during an armed conflict (para. 78). Customary international law rules of immunity-like customary international law rules more generally-must be based on a general and consistent practice of states followed out of a sense of legal obligation or opinio juris (para. 55). States may, of course, go further than international law requires and grant foreign states more immunity from suit as a matter of comity. But "the grant of immunity in such a case is not accompanied by the requisite opinio juris" and therefore does not establish rules of customary international law. See id. Looking at the practice of states with respect to foreign sovereign immunity, it is not always easy to tell where international law stops and international comity begins.

Like many other nations, the United States follows a restrictive theory of foreign sovereign immunity, under which the immunity of foreign states does not extend to their private and commercial acts (acta jure gestionis) but generally does extend to their governmental acts (acta jure imperii). But "generally" does not mean "invariably." The FSIA contains a number of exceptions to immunity that may apply to the governmental acts of foreign states, including the expropriation exception (Section 1605(a)(3)) and the territorial tort exception (Section 1605(a)(5)). The ICJ has also been careful not to hold that the line between immunity and no immunity neatly tracks the line between governmental and non-governmental acts. In Jurisdictional Immunities, it noted at paragraph 64 that "none of the national legislation which provides for a 'territorial tort exception' to immunity expressly distinguishes between acta jure gestionis and acta jure imperii."  And at paragraph 65, the ICJ limited its holding in that case to armed forces during armed conflict, leaving open the question whether other governmental acts might not be covered by immunity. So even if acts of terrorism or providing material support for acts of terrorism were properly considered governmental, such a classification would not by itself entitle those acts to immunity under international law.

Focusing on the new terrorism exception more specifically, there appears to be no general and consistent practice of states followed out of a sense of legal obligation establishing that foreign states are entitled to immunity for acts of terrorism or material support of such acts. To be sure, most states that have statutes governing foreign sovereign immunity do not have exceptions for terrorism. But it is not clear that the states extending foreign sovereign immunity to cover terrorist acts do so out of a sense of legal obligation. Again, as the ICJ noted at paragraph 55 in Jurisdictional Immunities, unless state practice is "accompanied by the requisite opinio juris," it does not establish a rule of customary international law. Significantly, there are two states-the United States and Canada-that do have terrorism exceptions in their foreign sovereign immunity laws. A terrorism exception has been part of U.S. law since 1996 and part of Canadian law since 2012, and neither exception, to my knowledge, has provoked the sort of widespread protests from other nations that one might expect in the case of a clear violation of customary international law. Perhaps that will change with JASTA's new terrorism exception, and such protests would provide new evidence relevant to the international law question. But the lack of protests prior to JASTA is more evidence that a terrorism exception does not violate customary international law.

Critics might point out that Canada's terrorism exception and the old U.S. exception were both limited to designated state sponsors of terrorism, while JASTA's new exception is not. Certainly this difference may be relevant to whether the new exception is good policy, as President Obama pointed out in his veto message. And this difference might also provoke new protests from other states, which would provide more evidence of customary international law regarding terrorism exceptions. But it is hard to see how this difference determines whether JASTA violates customary international law or not. Foreign sovereign immunity typically turns on the nature of the act, and international law does not typically dictate the particular processes a state must use to grant or deny such immunity. If customary international law allows the United States and Canada to deny foreign sovereign immunity when they have designated a particular country as a state sponsor of terrorism, it is not because the United States and Canada have satisfied some customary international law requirement with respect to designation. It is rather because customary international law does not require foreign sovereign immunity for terrorist acts in the first place.

Although new Section 1605B is written as a terrorism exception, it also finds support in the exception-well established under customary international law-for territorial torts. Recall that while Section 1605B does permit a suit for damages to be based on the tortious acts of a foreign state or its officials outside the United States, it also requires both conduct and injury inside the United States-specifically, "an act of terrorism in the United States" and injury or death "occurring in the United States." In Jurisdictional Immunities, the ICJ recounted the extensive state practice establishing an exception to foreign sovereign immunity for torts occurring in the forum state, although the Court also found that this exception did not extend to the activities of armed forces during armed conflicts. (See paragraphs 64-79.) Specifically, the ICJ noted that while the territorial tort exception had "originated in cases concerning road traffic accidents and other 'insurable risks,'" national legislation codifying the exception was written in more general terms (para. 64). Prior to JASTA, U.S. courts had adopted an "entire tort" interpretation of the FSIA's territorial tort exception (§ 1605(a)(5)), requiring that not just the injury but also all of the tortious conduct have occurred in the United States. But it is not clear that such a limitation is required by customary international law. Article 12 of the United Nations Convention on Jurisdictional Immunities of States and Their Properties, for example, 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. And it may be that the U.N. Convention is in fact more generous with immunity than customary international law requires.

In a previous post, I noted that there are various approaches to organizing state practice with respect to foreign sovereign immunity. The results may depend heavily on the baselines from which one begins and the levels of generality at which one reads state practice. Fully addressing those questions would require far more space than this post allows, but perhaps one observation may be made. In determining the customary international law of foreign sovereign immunity with respect to armed forces during armed conflict in Jurisdictional Immunities, the ICJ considered that "the most pertinent State practice is to be found in those national judicial decision which concerned the question whether a state was entitled to immunity in proceedings concerning acts allegedly committed by its armed forces in the course of an armed conflict" (para. 73). The Court found an almost unbroken practice of judicial decisions extending such immunity, even when the acts were committed on a state's own territory (paras. 73-77). There is no similarly unbroken practice of forum states extending immunity to foreign states that provide support for terrorist acts causing injury and death within the forum state.

Powerful arguments have been made that JASTA is bad policy, that it will not in fact help the victims of the 9/11 attacks, and that it will hurt our relations with important allies. I am not disputing those points. My only claim here is that JASTA does not clearly violate customary international law.

Cross-posted from Opinio Juris.

American law has many doctrines based on international comity-doctrines that help mediate the relationship between the U.S. legal system and those of other nations. The Second Circuit's decision last week in the Vitamin C Antitrust Litigation case correctly identified an international comity issue. But did it choose the right comity tool to address that issue?

Plaintiffs alleged that defendants, two Chinese companies, participated in a cartel to fix the price of vitamin C exported to the United States in violation of U.S. antitrust law. Defendants did not deny the allegations, but argued that Chinese law required them to coordinate export prices. The Chinese Ministry of Commerce backed the defendants in an amicus brief explaining Chinese law. The district court, however, declined to defer to the Ministry's interpretation of Chinese law, awarding the plaintiffs $147 million in damages and permanently enjoining the defendants from further violations of U.S. antitrust laws.

On appeal, defendants argued that the district court should have dismissed on grounds of foreign state compulsion, international comity, act of state, and political question. While the political question doctrine rests on separation of powers, the other three grounds are all doctrines of prescriptive comity. As I have explained in a recent article, American law is full of international comity doctrines, each with its own specific requirements.

To avoid confusion, it is worth noting at the outset that although the Second Circuit repeatedly framed the question as whether the district court should "abstain from exercising jurisdiction," Vitamin C was clearly not an international comity abstention case. International comity abstention is a doctrine of adjudicative comity, or deference to foreign courts. The Second Circuit has held that it is available only if parallel proceedings are pending in a foreign court. See Royal & Sun Alliance Ins. Co. of Canada v. Century Intern. Arms, Inc., 466 F.3d 88, 93-94 (2d Cir. 2006). The same is true in most other circuits that have adopted the doctrine (the cases are collected here at pp. 2112-14). The main exception is the Ninth Circuit, whose decision in Mujica v. Airscan Inc., 771 F.3d 580 (9th Cir. 2014), applied a broad and uncertain comity abstention doctrine that conflicts with its own precedents, those of other circuits, and even the Supreme Court's. Because no parallel antitrust claims against these defendants were pending in Chinese courts, international comity abstention would not have been an appropriate ground on which to dismiss this case.

Instead, the Second Circuit properly viewed the Vitamin C case as raising questions of prescriptive comity-deference to foreign lawmakers-which U.S. law has developed a number of different doctrines to address (for discussion see here at pp. 2099-2105). The court relied particularly on an interest-balancing, comity doctrine commonly associated with Timberlane Lumber Co. v. Bank of America, 549 F.2d 597 (9th Cir. 1976), Mannington Mills, Inc. v. Congoleum Corp., 595 F.2d 1287 (3d Cir. 1979), and Section 403 of the Restatement (Third) of Foreign Relations Law. In the court's view, this doctrine authorized it to "balance the interests in adjudicating antitrust violations alleged to have harmed those within our jurisdiction with the official acts and interests of a foreign sovereign in respect to economic regulation within its borders" (slip op. at 4). The idea that U.S. courts are institutionally capable of balancing the interests of foreign governments against our own has the subject of significant criticism over the past three decades.

Moreover, it is hard to see how this particular prescriptive comity doctrine survives the Supreme Court's later decisions in Hartford Fire Insurance Co. v. California, 509 U.S. 764 (1993), and F. Hoffmann-La Roche Ltd. v. Empagran, S.A., 542 U.S. 155 (2004), both of which declined to apply a multi-factor balancing approach in antitrust cases. The Second Circuit read Hartford "narrowly" (slip op. at 20) not to preclude such an approach, particularly when compliance with both U.S. and foreign law was impossible. But the Second Circuit did not even mention Empagran, which expressly rejected case-by-case balancing as "too complex to prove workable." Empagran recognized that ambiguous statutes should be construed "to avoid unreasonable interference with the sovereign authority of other nations," but it also said in no uncertain terms that "application of our antitrust laws to foreign anticompetitive conduct is nonetheless reasonable, and hence consistent with principles of prescriptive comity, insofar as they reflect a legislative effort to redress domestic antitrust injury that foreign anticompetitive conduct has caused." Plaintiffs unquestionably alleged domestic antitrust injury in Vitamin C, making the application of U.S. law reasonable and consistent with prescriptive comity, at least has the Supreme Court has understood these concepts in the antitrust context.

The act of state doctrine is a separate and distinct manifestation of international comity, requiring that the acts of foreign sovereigns performed within their own territories be deemed valid. But the Supreme Court has made clear that the act of state doctrine applies only when a U.S. court must "declare invalid, and thus ineffective as 'a rule of decision for the courts of this country,' the official act of a foreign sovereign." W.S. Kirkpatrick & Co. v. Environmental Tectonics Corp., International, 493 U.S. 400, 405 (1990). To find that the defendants fixed the price of vitamin C, the district court did not have to find any part of Chinese law invalid or even to evaluate the conduct of the Chinese government. It only had to find that Chinese law did not immunize the defendants' own conduct from liability under U.S. law.

The best fitting tool to address the prescriptive comity issue in Vitamin C would seem to be the doctrine of foreign state compulsion (also known as foreign sovereign compulsion), which sometimes allows a U.S. court to excuse violations of U.S. law on the ground that the violations were compelled by foreign law. That is precisely what defendants had argued in this case. Although the exact contours of this doctrine are uncertain, the U.S. government has recognized it as a defense in antitrust cases. See Antitrust Enforcement Guidelines for International Operations ¶ 3.32 (1995). China represented that its law compelled the defendants to coordinate export prices for vitamin C, and the Second Circuit considered itself bound by China's interpretation of its own laws (slip op. at 30), which seems reasonable at least in these circumstances.

Unfortunately for the defendants, there are at least two potential problems with foreign state compulsion in this case. First, it appears that defendants may have asked the Chinese government to mandate their price fixing. See slip op. at 36-37. At least some authority suggests that a defendant wishing to claim foreign state compulsion as a defense must try in good faith to obtain relief from the compulsion from the foreign state. See, e.g., Societe Internationale v. Rogers, 357 U.S. 197, 208-09, 213 (1958). Second, it appears that defendants may have fixed prices at levels higher than those mandated by the Chinese government. See slip op. 38. The Second Circuit found this irrelevant to its "comity" analysis but seemed to acknowledge that such facts would preclude a foreign compulsion defense. See id.

U.S. courts have many tools at their disposal to address international comity issues. But sometimes no tool fits. "International comity" is not a universal wrench offering unlimited judicial discretion to dismiss cases that seem problematic. It is a principle underlying specific doctrines, with specific requirements, developed over many years to keep judicial discretion within bounds.

The Presumption Against Extraterritoriality Still Does Not Apply to Jurisdictional Statutes

by William S. Dodge

[Cross-posted from Opinio Juris.]

In RJR Nabisco, Inc. v. European Community, the Supreme Court applied the presumption against extraterritoriality to determine the geographic scope of the Racketeer Influenced and Corrupt Organizations Act (RICO). RICO makes it illegal to use a pattern of racketeering activity in particular ways relating to enterprises. Racketeering activity consists of certain state and federal offenses generally known as predicates-money laundering, for example. RICO also creates a civil cause of action for treble damages for "[a]ny person injured in his business or property" by a RICO violation. In RJR, the Court unanimously held that two of RICO's substantive prohibitions apply extraterritorially to the same extent as their predicates. For example, since the federal money laundering statute, applies to offenses "outside the United States" if the defendant is a U.S. person, RICO also prohibits acquiring an interest in an enterprise or conducting its business through a pattern of money laundering outside the United States if the defendant is a U.S. person. But RJR also held, by a vote of 4-3, that RICO's civil cause of action requires injury to business or property in the United States. The Court thus preserved RICO as a law enforcement tool for the U.S. Government in a wide range of cases, including terrorism cases, while limiting private damages actions that might have caused friction with foreign nations.

In the process of describing its framework for applying the presumption against extraterritoriality, however, the Court said something that it almost certainly did not mean and that is likely to cause confusion among the lower courts unless nipped in the bud. Writing for a unanimous court, Justice Alito said that a court must ask whether the statute gives a clear indication that it applies extraterritorially "regardless of whether the statute in question regulates conduct, affords relief, or merely confers jurisdiction." I have previously argued that the presumption against extraterritoriality does not apply to jurisdictional statutes, and in this post I explain why that is still true after RJR.

Although Article III of the U.S. Constitution sets the outer limits of subject matter jurisdiction for federal courts, Congress must confer jurisdiction upon the lower federal courts by statute. The U.S. Code contains a number of general subject matter jurisdiction statutes that apply in large numbers of cases. For criminal cases, 18 U.S.C. § 3231 gives district courts jurisdiction "of all offenses against the laws of the United States." On the civil side, the general federal question statute, 28 U.S.C. § 1331, gives district courts jurisdiction "of all civil actions arising under the Constitution, laws, or treaties of the United States," while the diversity statute, 28 U.S.C. § 1332, gives district courts jurisdiction "of all civil actions where the matter in controversy exceeds the sum or value of $75,000" between citizens of different states or between citizens and aliens (subject to a few exceptions). Some federal statutes have more specific grants of subject matter jurisdiction, like § 27 of the Securities Exchange Act, which gives the district courts jurisdiction over both civil and criminal actions "to enforce any liability or duty" created by the Act or its rules and regulations. None of these statutes contains the "clear, affirmative indication" of extraterritoriality that RJR says is necessary to rebut the presumption against extraterritoriality. Thus, if the presumption really applies to statutes that confer jurisdiction, those statutes might be interpreted not to apply extraterritorially. This might mean that federal courts would lack subject matter jurisdiction over criminal offenses committed abroad even if the substantive offense (like money laundering or RICO violations based on money laundering) clearly applies extraterritorially. It might similarly mean that civil suits arising abroad might have to be dismissed for lack of subject matter jurisdiction even if they are based on federal statutes that clearly apply extraterritoriality or are brought between diverse parties. Any sensible court would hesitate to reach such results. But how do we know that RJR does not command them.

First, we know that the presumption against extraterritoriality does not apply to jurisdictional statutes because RJR applied the presumption to RICO's substantive provisions and not to the subject matter statute on which the suit was based. RICO lacks a general subject matter provision of its own, so jurisdiction in the civil suit brought by the European Community had to have been based on § 1331, the general federal question statute. The European Community lost its claim because the Supreme Court held that RICO's civil cause of action required injury to business or property in the United States, but it lost on the merits. The Supreme Court assumed (correctly) that the district court had subject matter jurisdiction under § 1331 to hear the claim in the first place.

Second, we know that the presumption against extraterritoriality does not apply to jurisdictional statutes because RJR held that two of RICO's criminal provisions do apply extraterritorially to the same extent as the predicates on which they are based. This preserves the ability of the U.S. government, in the example that the Court itself gave, to use RICO to prosecute "a pattern of killings of Americans abroad in violation of § 2332(a)-a predicate that all agree applies extraterritorially." Yet the Court's holding would be for naught if 18 U.S.C. § 3231, the general subject matter provision for violations of federal criminal law, were limited to the United States.

Third, we know that the presumption against extraterritoriality does not apply to jurisdictional statutes because RJR specifically discussed the possibility that the European Community might bring suit for violations of their own laws and "invoke federal diversity jurisdiction as a basis for proceeding in U.S. courts." This would be impossible if 28 U.S.C. § 1332, the federal diversity statute, were limited to cases arising in the United States.

Fourth, we know that the presumption against extraterritoriality does not apply to jurisdictional statutes because Morrison v. National Australia Bank, the decision that RJR elaborates and applies, similarly applied the presumption against extraterritoriality to a substantive provision of the Securities Exchange Act (§ 10(b)) and not to its jurisdictional provision (§ 27). Indeed, the Morrison Court went out of its way to say that "[t]he District Court had jurisdiction under [§ 27] to adjudicate the § 10(b) question."

So if RJR could not have meant that the presumption against extraterritorially applies to statutes granting subject matter jurisdiction, what did the Court mean when it said the presumption applies "regardless of whether the statute in question . . . merely confers jurisdiction"? The RJR Court was attempting to describe what it had done with the presumption in Kiobel v. Royal Dutch Petroleum Co., a case involving the Alien Tort Statute (ATS). In Kiobel, the Court held "that the presumption against extraterritoriality applies to claims under the ATS, and that nothing in the statute rebuts that presumption." Kiobel, however, did not apply the presumption against extraterritoriality to the ATS itself-a statute the Court characterized as "strictly jurisdictional"-but rather to the implied federal-common-law cause of action under the ATS. On page 9 of the slip opinion, RJR accurately describes Kiobel as a case where "we concluded that principles supporting the presumption should 'similarly constrain courts considering causes of action that may be brought under the ATS.'" And again on page 19, RJR correctly characterizes Kiobel as holding "that the presumption 'constrain[s] courts considering causes of action' under the ATS." Understanding Kiobel to have applied the presumption against extraterritoriality to the implied cause of action and not to the ATS itself also makes sense of Kiobel's statement that the presumption "is typically applied to discern whether an Act of Congress regulating conduct applies abroad," for causes of action regulate conduct in a way that purely jurisdictional statutes do not.

In short, RJR's statement that the presumption against extraterritoriality applies to statutes that "merely confer[] jurisdiction" must be read in context as describing the presumption's application to implied causes of action under statutes like the ATS and not to subject matter jurisdiction statutes themselves. Any other reading would be contrary to what the Supreme Court held with respect to subject matter jurisdiction in Morrison and, indeed, to what the Supreme Court did with respect to subject matter jurisdiction in RJR. It would also be contrary to common sense, for it would constrain the jurisdiction of the federal courts over civil cases and criminal prosecutions based on substantive statutes that clearly apply abroad. One can only hope that lower courts do not waste too much time and effort trying to figure this out.

Our client Marianne Wilson Kuroda

The Aoki Center for the Critical Study of Race and Nation and the Immigration Law Clinic recently won a derivative citizenship case on behalf of their client, Marianne Wilson Kuroda, who is born, raised and continues to live in Japan.  Specifically, the Center and the Clinic argued that Mrs. Wilson Kuroda was born a U.S. citizen through her father, a U.S. citizen, based on Section 301(g) and 309(b) of the Immigration and Nationality Act (INA). 

Section 301(g) recognizes that a person is a U.S. citizen at birth provided that:

[A] person born outside the geographical limits of the United States and its outlying possessions of parents one of whom is an alien, and the other a citizen of the United States who, prior to the birth of such person, was physically present in the United States or its outlying possessions for a period or periods totaling not less than five years, at least two of which were after attaining the age of fourteen years.

Because Mrs. Wilson Kuroda's parents -- an American man and a mixed-race Japanese, Swedish and German woman born in Japan -- could not marry under federal and military rules that prohibited their interracial marriage, Mrs. Wilson Kuroda was a child born out-of-wedlock.  Thus, she also had to meet the requirements of Section 309(b) of the INA, which provided that "the paternity of such child is established at any time while such child is under the age of twenty-one years by legitimation."  Her father, James Vaughn, was forced to return to the United States and sought to bring Mrs. Wilson Kuroda and her mother to immigrate the United States.  Because they were Japanese, they were racially inadmissible under immigration law and needed special legislation to allow them to enter the United States.  At the time of Mrs. Wilson Kuroda's birth in April 1949, Mr. Vaughn was a resident of Nevada.  Thus, for purposes of establishing legitimation, Nevada law applied. (In 1956, Mrs. Wilson Kuroda, then just a little girl, was at the center of a case titled Sweden v. Yamaguchi.)

The Center and the Clinic submitted evidence that Mrs. Wilson Kuroda's father legitimated her before she turned 21 years old.  Evidence submitted include letters that her father sent to Senator Pat McCarran acknowledging Mrs. Wilson Kuroda as his child.  These letters became the basis for a private bill that Senator McCarran introduced in June 1949 and that passed Congress in August 1950.  Unfortunately, Mrs. Wilson Kuroda's mother died on the same day that the bill became law.  Mrs. Wilson Kuroda and her father would never meet. 

However, the Center and the Clinic argued that Mr. Vaughn took sufficient steps under Nevada law to legitimate Mrs. Wilson Kuroda.  Thus, on January 5, 2016, with the assistance of the Center and the Clinic, Mrs. Wilson Kuroda filed an application for a U.S. passport at the U.S. Embassy in Tokyo.  On June 6, 2016, the U.S. Embassy agreed and approved Mrs. Wilson Kuroda's application for a U.S. passport, essentially recognizing her as a U.S. citizen.

Professor Leticia Saucedo and I worked on the case with David Canela ('16), J.J. Mulligan ('15), Emily Wilson ('13), and Andrea Wu ('15).

Cross-posted from Just Security.

In April, Curt Bradley and Jack Goldsmith wrote in The New York Times that the Justice Against State Sponsors of Terrorism Act (JASTA) then under consideration in the Senate - a bill that would make it easier for victims of the 9/11 terrorist attacks to sue Saudi Arabia - would violate international law and hinder United States' ability to claim sovereign immunity in other nations' courts. I argued in response that whether JASTA would violate international law was far from clear. Since then, the Senate passed a much changed version of JASTA. The revised bill would, among other things, create a new terrorism exception to the Foreign Sovereign Immunities Act (FSIA) for suits claiming damages for injury or death in the United States caused by the combination of an act of international terrorism in the United States and the act of a foreign state or official anywhere in the world.

Curt and Jack write in a new post that this exception would harm US interests because (1) it might lead to unanticipated suits against countries other than Saudi Arabia, and (2) it will "create a broad precedent that can be used against the United States and its allies as an excuse for 'reciprocal' or 'analogous' reductions in immunity even if no suit is brought against those countries in the United States." They suggest that Congress could reduce the damage to US interests by limiting the exception to Saudi Arabia alone. Doing so, they write, "would confine most of the impact of the statute to US-Saudi relations and thereby minimize collateral consequences." I doubt that the more targeted statute Curt and Jack propose would help with either of the problems they identify.

With respect to the foreign relations difficulties that suits under the new terrorism exception might cause, it is true that limiting the exception to Saudi Arabia would avoid the possibility of suits against other countries, but that possibility seems remote. It is hard to think of other countries whose acts contribute to international terrorism in the United States. And it hard is argue that any countries whose acts contribute to international terrorism in the United States should be immune from suit. On the other hand, singling out Saudi Arabia is likely to increase the affront to that country. 

With respect to the precedent such an exception might create for reciprocal legislation in other countries, it is hard to see how a statute targeted at Saudi Arabia alone would provide less of an excuse for reciprocal reductions in the sovereign immunity of the United States and its allies. If another country wanted to allow suits against the United States in its courts for "international terrorism," a US exception aimed at a single country would be all the precedent it would need. Indeed, even without JASTA, a precedent for such foreign legislation may be found in the United States' existing exception for state sponsors of terrorism which allows suits against Iran, Sudan, and Syria and which is not limited to terrorism in the United States. While I do not think that terrorism exceptions violate international law (Canada has one too), I do think they are problematic. As Curt and Jack wrote back in April, "terrorism is often in the eye of the beholder." It would not be surprising for the United States to find itself targeted someday by another country's terrorism exception to sovereign immunity.

If Congress wants to reduce the adverse impacts on the United States that JASTA might cause, I would suggest another option. Rather than create a new terrorism exception to the FSIA, Congress might amend the territorial tort exception not to require that the "entire tort" have occurred in the United States. This was the option proposed in the version of JASTA that I wrote about in April, and it would be just as effective in removing sovereign immunity as a barrier to the 9/11 suits. The territorial tort option would have several advantages.

First, as I explained in my previous post, the territorial-tort exception is well supported by state practice. Although US courts currently interpret the existing exception in the FSIA to require that the "entire tort" have occurred in the United States, it does not appear that customary international law requires this limitation. Building on the well-established territorial tort exception is likely to be less controversial internationally than expanding the more politically charged terrorism exception.

Second, the territorial tort exception is subject to an important exception of its own for military activities during armed conflict. In 2012, the International Court of Justice (ICJ) concluded in the Jurisdictional Immunities Case (Germany v. Italy) that customary international law requires "that a State be accorded immunity in proceedings for torts allegedly committed on the territory of another State by its armed forces and other organs of State in the course of conducting an armed conflict" (para. 78). A number of the specific examples that Curt and Jack worried about in their April piece - like arming Syrian rebels or airstrikes against al-Qaeda and the ISIL - would fall in this category. Using the territorial tort option in JASTA would allow the United States to continue to claim immunity under customary international law for military activities even if JASTA eliminated immunity for non-military activities.

Third, it is important to remember that the territorial tort exception is a territorial tort exception. The only countries that would be able to exercise jurisdiction over the United States reciprocally by enacting a similar exception are those countries in which tortious injury occurs. In April, Curt and Jack raised the possibility that the United States might become subject to suits based on financial support of Israel that results in displacing or killing Palestinians in the West Bank. But under the territorial tort exception, it is only the courts of the Palestinian Authority that would be able to exercise such jurisdiction. The territorial tort option would create no risk of expanded jurisdiction for torts in the courts of third countries.

Of course, the same is technically true of JASTA's new terrorism exception, which requires an act of international terrorism "in the United States." But it is not true of the existing FSIA exception for state sponsors of terrorism, which contains no such limitation. If Congress is really worried about reciprocal legislation by other countries that might strip the United States of its sovereign immunity, the territorial tort option is a safer one than the terrorism option passed by the Senate.

Although I am less concerned than Curt and Jack about the adverse impacts of passing JASTA, they have certainly identified some genuine concerns. The territorial tort option would be a better way of addressing those concerns than limiting the bill to Saudi Arabia. Whatever speculative damage to US relations with other countries might be avoided by limiting the bill as Curt and Jack suggest is likely to be more than offset by the offense that singling out Saudi Arabia would cause. As for the precedent that JASTA would set for reciprocal legislation in other countries, a territorial tort exception would build on a firmer foundation, exempt military activities, and be territorially limited in ways that a terrorism exception - even one limited to a single country - would not.

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.

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.

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.