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May 30, 2018

A Friendly Court

by Anupam Chander

An award ceremony has the risk of being largely predictable, even if worthwhile. The presenter makes the usual remarks about the namesake of the award and the honoree, and the honoree is duly grateful. I was privileged to attend an award ceremony in Washington D.C. this week that well-exceeded the usual standard. The occasion was the award of the Henry J. Friendly Medal of the American Law Institute (ALI) presented by Chief Justice John Roberts to Associate Justice Ruth Bader Ginsburg at the ALI’s annual meeting in Washington D.C. earlier this week. The Medal is named in honor of the famed Second Circuit judge, who served on the bench from 1959 to 1986. Chief Justice Roberts observed that Judge Friendly has often been regarded as the most important United States jurist never to sit on the U.S. Supreme Court. Judge Ray Lohier of the Second Circuit Court of Appeals spearheaded the nomination, and it was approved by acclamation of the American Law Institute’s Council. It was Chief Justice Roberts who approached the ALI to present the award. 

Chief Justice Roberts had himself clerked for Judge Friendly, as did a number of prominent members of the ALI, including Professors Bruce Ackerman and Ruth Wedgwood and Judge Merrick Garland. I have long admired Judge Friendly myself. When I clerked for Judge Jon O. Newman of the Second Circuit, his New York offices had once been the chambers of Judge Friendly himself. Given Judge Newman’s frugality and concern for the public fisc, I’m confident that we still had the old chairs and desks that Judge Friendly’s clerks used. I then went on to become an associate at the law firm of Cleary, Gottlieb, Steen and Hamilton, which had been cofounded by Judge Friendly. 

Chief Justice Roberts uncovered letters between Justice Ginsburg and Judge Friendly—where she forwarded him, for his appraisal, an opinion (Norris v District of Columbia, 737 F.2d 1148 (D.C. Cir. 1984)) she had authored as then-Circuit Judge citing one of his precedents (Johnson v. Glick). Chief Justice Roberts reported that Judge Friendly had approved of her interpretation of his opinion and saw her as a rising star. The Chief also remarked on Justice Ginsburg’s quality of work—and mentioned her special interest in “jabots”—a term I had to look up. Jabots, for those like me who didn’t know, are the decorative collars, which Justice Ginsburg uses to accessorize her judicial robes (for more, see this Bustle article)

The level of respect and admiration for his senior colleague was palpable in the Chief Justice’s remarks. Inviting her to receive the award, Chief Justice Roberts joked that he was happy to participate in this effort “to increase your public profile.”

Justice Ginsburg’s address was quite humble. She picked up with the Chief’s joke. She explained the origin of her current “notoriety” as the work of a law student. It was a 2L at NYU who had apparently noticed some (perhaps unlikely) similarity between Justice Ginsburg and rapper Notorious B.I.G. Justice Ginsburg declared they were indeed alike—they both hailed from Brooklyn! Thus were born all manner of paraphernalia sporting her new moniker. She went on to describe the generational shift in opportunities that she had been afforded compared to the women of generation prior to hers (she did not mention the many opportunities in law she had been denied): “What is the difference between a garment worker in New York City and a Supreme Court Justice?” she riddled. She answered, “A generation.”

Justice Ginsburg also spoke of Judge Friendly, relaying an oral argument that she had attended at the Second Circuit in which Judge Friendly had asked a particularly penetrating question to the advocate, who happened to be her husband, Marty Ginsburg. 

In sharp contrast to the collegiality displayed by Justices Ginsburg and Roberts, the process of Supreme Court Justice confirmation is no longer characterized by collaboration. Justice Ginsburg lamented the recent politicization of the Supreme Court confirmation process. She noted that only three Senators voted no on her candidacy, while dozens of Senators voted no on more recent appointments. Furthermore, she noted that no Senator asked her to defend her role as a card-carrying member--and cofounder of the women’s rights project--of the ACLU.

This was my first meeting as a new member of the American Law Institute, the long-standing group of jurists, lawyers and academics that publishes the Restatements of Law and the Principles of Law that practitioners and judges often rely on to apply the law. The award ceremony perfectly encapsulates the spirit of bipartisan engagement that characterizes ALI. The ALI includes lawyers who generally respresent plantiffs, as well as lawyers who generally represent defendants. The ALI relies on civil discourse and the quality of argument to arrive at its answers for the significant questions it asks.

The UC Davis law faculty includes ALI members Dean Kevin R. Johnson and Professors Ashutosh Bhagwat, Gabriel "Jack" Chin, William S. Dodge, Floyd F. Feeney, Robert W. Hillman, Thomas W. Joo, and Leticia Saucedo, as well as Professors Emeriti Alan Brownstein, Carol S. Bruch, Joel C. Dobris, Daniel W. Fessler, Angela P. Harris, John B. Oakley, Rex R. Perschbacher, Edward H. Rabin, Daniel L. Simmons, and Bruce Wolk.

 


May 7, 2018

From the Bookshelves: From Extraction to Emancipation: Development Reimagined by Raquel Aldana and Steven W. Bender

by Kevin R. Johnson

 

[Cross-posted from ImmigrationProf Blog]

 

From Extraction to Emancipation: Development Reimagined by Raquel Aldana and Steven W. Bender


Growing out of a site visit to Guatemala in the summer of 2015 and a follow-up conference, Raquel Aldana and Steven Bender, editors, have produced an edited volume that considers Guatemala as a case study to examine broad global themes arising from development practices in emerging economies around the world, including the final theme of migration and development.  The book includes chapters by fourteen scholars from the North and South, including Raquel Aldana, Steven Bender, Karrigan Börk, Julie Davies, Patrícia Ferreira, Lauren Gilbert, Christian Gonzalez, Beto Juarez, Mario Mancilla, Marcia Narine Weldon,  Blake Nordahl,  Mario Peña Chacon, Rachael Salcido and Maria Antonia Tigre. 

 

A significant economic development strategy of emerging economies has involved the promotion of direct foreign investment and trade.  While these practices have promoted steady economic growth, the book offers important lessons to investors and policy makers on strategies to improve distributional justice and respect for the rule of law. A large focus of the book is on enhancing corporate social responsibility, recognizing the unwillingness or inability of failed democracies to regulate industry’s potential ill effects on the environment and people, and in particular indigenous peoples who comprise a significant part of Guatemala’s population and are disproportionately poor. The book also examines such global themes as climate change, labor regimes in the context of trade, and forced migration (mostly from indigenous communities), all of which have transborder implications and across-border commonalities.

 

Part V of the book looks at the phenomena of migration and development. The recent surge of Central American unaccompanied minors and children fleeing with their mothers to the United States made it imperative to confront the human face of migrants whose fates are rooted in the dire reality that the countries from which they flee cannot or will not protect them. Largely, these migrants are escaping violence perpetuated by private actors, at times by gang members or even their own parents or spouses. Their stories of flight cannot be disengaged from the broader context in which the violence occurs. Theirs is also the story of failed nations, characterized by ineptitude, weakness and, even worse, indifference or at times even complicity. This story of failed nations applies beyond the reign of private “rogues” whom everyone agrees are bad actors (gangs, drug traffickers, violent criminals). The other side of the coin is a more nuanced story about the failing role of some of these Central American nations in regulating the acts of corporations, whether owned by the oligarchy or operated by transnational actors.

 

Blake Nordahl’s chapter, for example, narrates Evelia’s story. Evelia, like many other Central American asylum seekers, won her case based on a compelling story of domestic violence. Nordahl’s trip to  Guatemala to study Evelia’s prior life in rural Guatemala, however, revealed to him and to readers a more complex entangled story of privatized violence that includes the historical and modern exploitation of people at the hands of Guatemala’s sugar industry. This carefully documented chapter makes a compelling case to move our own asylum and refugee laws beyond simple stories of  individualized violence and to recognize the so-called “economic refugees” from nations like Guatemala as victims of a structural persecution that also involves collusion between the state and corporations.

 

Lauren Gilbert’s chapter connects Guatemala’s story of migration and violence to both the past and the present— the civil war years to now—and to the licit and illicit actors who exploit them. Her concluding chapter examines the role of gendered violence directed at women in El Salvador, Guatemala, and Honduras both during the political upheavals of the 1980s and 1990s and over the last decade, examining how the failure then to confront gender violence as a form of state-sponsored terrorism led to its role today in contributing to the climate of fear and instability that plagues the region. The gendered violence that propels migration today from the Northern Triangle is connected to this dark yet largely untold history. Today, the levels of violence in these countries match or surpass those during wartime. While today, Northern Triangle states largely blame private actors (e.g., gangs) for the resurgence of violence directed at women, Gilbert’s chapter shows that this new terror cannot be disentangled from these nations’ dark past with gendered state-sponsored violence.

 

In the end, both Nordahl and Gilbert look to international norms as part of the solution. Nordahl acknowledges that permanent solutions to Guatemala’s structural violence are largely a Guatemala project. However, he also documents that for the past twenty years Guatemala’s feeble attempts at land reforms and poverty alleviation through multiple policies have been largely inadequate. Thus, at least for now, Nordahl makes a compelling case that more expansive notions of persecution must be adopted as part of refugee law to recognize economic exploitation as persecution. For her part, Gilbert sees hope in international law’s evolution in recognizing gendered violence, a significant shift from when she worked as a UN Truth Commission lawyer in El Salvador more than twenty-five years ago. This new visibility and naming of gendered violence is an important first step to counter practices, including in the United States, of turning our backs on persecuted women and girls.

 

Download Introductory chapter of book