April 27, 2011

In Passing: Keith Aoki

Cross-posted from IntLawGrrls.

How to begin paying my respects to Keith Aoki?
Keith (above) worked across the hall from me these past 4 years. He'd joined us as a Professor of Law at the University of California-Davis in 2007, having been the Philip H. Knight Professor of Law at the University of Oregon.
It was always a delight to visit with Keith, to share in his ever-present cheerfulness as we mulled questions of law, politics, and myriad other areas.
Emphasis on "myriad."
Keith's expertise won renown in many fields:
► Law and social science.
Local government, intellectual property, Asian American studies, cultural geography, agriculture, critical theory, to name a few. This sampling of publications illustrates his breadth of intellectual endeavor: Seed Wars, Cases and Materials on Intellectual Property and Plant Genetic Resources (2008); "(In)visible Cities: Three Local Government Models and Immigration Regulation" (co-authored, 2008); and "Is Chan Still Missing? An Essay About the Film Snow Falling on Cedars and Representations of Asian Americans in U.S. Films" (2001).
► Art, too.
As explained at page 73 here: "In the mid-1980s" Keith, holder of bachelor's and master's degrees in fine arts, "decided to leave the bohemian art demimonde to go to Harvard Law School." Keith drew wonderful cartoons. Some made their way into graphic accounts of law, such as Bound by Law? Tales from the Public Domain (2006). Bound is available free online via a Creative Commons license -- a fact that hints at Keith's generosity, to colleagues, students, everyone. A couple years ago Keith gave a hard copy to my then-preteen son, who absorbed it avidly and is now wont to cite chapter and verse of copyright law. (Keith co-authored Bound with James Boyle and Jennifer Jenkins, the latter of whom remembers him here. Other remembrances are here, here, here, and here.)
Keith's creative expression included playing bass in a band, the Garden Weasels, and that avocation contributed to the forthcoming graphic book by him and his co-authors, Theft! A History of Music.
In addition to valuing his friendship, I've been particularly grateful for Keith's unflagging support for the California International Law Center at King Hall, the law school initiative founded 2 years ago. He was a member of our CILC Faculty Council, served on CILC committees, and helped immensely with program suggestions and speaker invitations.
Keith passed away yesterday morning, at age 55. He is survived by his wife Mona, their 9-year-old twin daughters, and a world of friends. We will miss him beyond words.


April 21, 2010

John Paul Stevens and the American Century

For years after John Paul Stevens arrived in Washington, Court-watchers across the ideological spectrum typecast him as a “wild card” whose fact-conscious approach led to “maverick” results. Those terms seldom surface any more; accounts of his recent decision to step down at the end of this Term instead dubbed him a “lion,” a “leader of the liberal wing.”  Yet neither description alone does justice to Justice Stevens, who today celebrates his ninetieth birthday.  In his jurisprudence may be found not only a commitment to common law processes, but also a vision of how law must serve American ideals.

John Paul Stevens has lived much of what has been called the American Century.  He was born in Chicago on this day in 1920.  Just five months earlier, the Senate had voted to keep the United States out of the post-World War I League of Nations.  Four months before that, deadly race riots had roiled neighborhoods not far from Stevens’ Hyde Park home.  His family was among the city’s most prominent, having earned a fortune in the life insurance business.  In 1927 the family opened the lakefront Stevens Hotel, then the world’s largest, run by John’s father, already manager of another posh downtown hotel.  John’s Jazz Age childhood soon gave way to Depression-era tragedy: Stevens’ father, who had borrowed money from the insurance company in an attempt to save the hotel, was convicted in 1933 of embezzlement.  The Illinois Supreme Court fully exonerated him in 1934.  But the hotel was lost, and the father ran a food concession at the Century of Progress World’s Fair.  John had his first job selling Banbury tarts near the Fair’s replica Globe Theatre.  There began his love of Shakespeare’s plays.

As a University of Chicago undergraduate, John heard Mortimer Adler and Robert Maynard Hutchins – renowned as founders of the Great Books curriculum – debate whether America should come to the aid of England in its fight against fascism in Europe.  When war came Stevens served, earning a Bronze Star for his work as a Navy codebreaker at Pearl Harbor.  At war’s end he returned to Chicago.  Having excelled at Northwestern University School of Law, Stevens was hired by Justice Wiley B. Rutledge, Jr., later described as the conscience of a Supreme Court sorely tested by World War II and the ensuing Cold War.  As Rutledge’s law clerk Stevens played his part in America’s mid-twentieth century struggles to resolve competing claims of national security and individual dignity, and to enforce the Constitution’s guarantees of liberty and equality.

Stevens spent most of the nearly three decades between that clerkship and his own confirmation in Chicago, where he taught antitrust part-time and established himself as one of the city’s premier litigators.  (Stevens is quick to note that his stints in Washington, working on congressional antitrust inquiries, taught him how legislation is made, a lesson that has influenced his approach to statutory interpretation.)  His work as special counsel in a corruption investigation that prompted the resignation of Justices of the Illinois Supreme Court – chronicled in Kenneth Manaster’s Illinois Justice (2001) – led to Stevens’ appointment to the Seventh Circuit in 1970.  Five years later, he became the only Justice nominated by post-Watergate President Gerald Ford.

As commentators soon noted, Stevens brought to the Court the litigator’s focus on the case at hand.  That focus has remained evident not only in the Justice’s penchant for attending to factual wrinkles that sometimes lead to unexpected results, but also in his insistence that the Court should decide only the issues squarely presented in briefs and oral argument.

Less noted was the intellectual framework that Stevens brought with him to Washington.  During his tenure he, like Rutledge and all members of the Court, has grappled with the important issues of this last century:  issues of liberty, equality, and security.  Underpinning many such decisions has been a vision of the relation between the individual and the state that Stevens explicitly has linked to the work of Mortimer Adler and John Stuart Mill.  In a lecture published as The Third Branch of Liberty, 41 University of Miami Law Review 277 (1986), Stevens construed the “liberty” of the Due Process Clauses to protect every individual from “being treated less favorably than the average member of society unless there is an acceptable justification for such treatment.”  He then gave two examples of unjustified invasions of liberty:  when a “person is branded as a ‘felon’” without proper hearing, and when “he is treated less favorably than the majority of his peers simply because his skin is not of the same color as theirs.’”  Stevens thus maintains, as did the Court in Bolling v. Sharpe (1954), that the Constitution’s guarantee of fundamental fairness encompasses a principle of equality dating to the Declaration of Independence.  That view of the Constitution not only has influenced Stevens, but also may be discerned in recent writings of other Justices; most notably, those of Justice Anthony M. Kennedy in cases like Lawrence v. Texas (2003).

This vision, along with his clerkship for Justice Rutledge and other life experiences, influenced Justice Stevens’ jurisprudence on myriad issues.  To cite a few instances:

Capital Punishment.  Soon after joining the Court, Steven drafted the opinion in Woodson v. North Carolina (1976), which made clear that the Eighth Amendment forbids mandatory imposition of the death penalty. But he also cast the essential vote in companion judgments, like Gregg v. Georgia, by which the Court ended a four-year de facto moratorium and reinstated capital punishment. Even then, his wartime experience had sown seeds of doubt about the death penalty, and he confronted his vote in Gregg throughout his career on the Court.  He has drawn an ever smaller circle around the types of cases that are death-eligible.  Noteworthy is his opinion for the Court in Atkins v. Virginia (2002), which reversed a thirteen-year-old precedent to outlaw the execution of mentally retarded persons, and set the stage for the abolition three years later of the juvenile death penalty.  Culminating this jurisprudence is Stevens’ separate opinion in Baze v. Rees (2008), in which he wrote that judicial experience compelled him to conclude that the capital punishment is not susceptible to constitutional application, and then explained that since his view did not command a majority, he would continue to evaluate every death case according to precedent.

Equal Protection.  Justice Stevens initially evinced hostility toward government programs said to give preference to minorities as a means to remedy past discrimination; indeed, in Fullilove v. Klutznick (1980), he likened one such program to the Nuremberg Laws by which Nazi Germany persecuted its Jewish citizens.  In contrast stands a 1948 memorandum, written fully six years before the Court’s landmark decision in Brown v. Board of Education (1954), in which clerk Stevens advised Justice Rutledge to “take judicial notice of the fact that … the doctrine of segregation is itself a violation of the Constitutional requirement.”  About midway through his tenure on the Court, Stevens came to approve affirmative action programs that, rather than dwelling on past discrimination, looked forward to the promotion of diversity in American society.  Wresting from the majority its claim to the mantle of Brown, Stevens declared in 2007 that the integration plans at issue in Parents Involved in Community Schools v. Seattle School District No. 1 served “the public interest in educating children for the future,” adding that “children of all races benefit from integrated classrooms and playgrounds.”

National Security.  An undisputed landmark in Stevens’ career is his forging of coalitions that crossed the conventional liberal-conservative divide to reject key aspects of the President’s post-9/11 campaign against terrorism.  Stevens wrote two of the most important judgments, Rasul v. Bush (2004), which granted federal habeas privileges to noncitizen  terrorism suspects held offshore at Guantánamo, and Hamdan v. Rumsfeld (2006), which invalidated military commissions established by a decree of President George W. Bush.  Those judgments restraining executive power stood in some tension with some of Stevens’ earlier decisions  respecting the extraterritorial reach of law enforcement.  The post-9/11 jurisprudence hearkens to opinions in which Rutledge – in one case, an opinion that clerk Stevens helped draft – stressed the Court’s duty to ensure fair treatment for even the most disfavored persons, even when national security rests in the balance.  For Stevens as for Rutledge, no less than America’s tradition was at stake.  “[I]f this Nation is to remain true to the ideals symbolized by its flag,” Stevens wrote in dissent from one post-9/11 judgment, “it must not wield the tools of tyrants even to resist an assault by the forces of tyranny.”

On this his ninetieth birthday, our country celebrates Justice John Paul Stevens’ invaluable service to the American Century.

Cross-posted at SCOTUSblog's "Thirty Days of John Paul Stevens: A series of posts by authors who know him and his work." A direct link to this entry is here.

March 31, 2010

Justice Stevens on Targeted Killing

As detailed via quotes in the post below, the Legal Adviser to the U.S. Department of State, Harold Hongju Koh (below left), [last week] outlined a multi-pronged defense of the Obama Administration's use of drones for targeted killings of presumed al Qaeda operatives. (photo credit) Among the statements made during Koh's keynote speech to the American Society of International Law was this:

[S]ome have argued that the use of lethal force against specific individuals fails to provide adequate process and thus constitutes unlawful extrajudicial killing. But a state that is engaged in armed conflict or in legitimate self-defense is not required to provide targets with legal process before the state may use lethal force.
Upon hearing these words, my mind jumped at once to my 2005 interview of U.S. Supreme Court Justice John Paul Stevens (above right), for whom I had the privilege of clerking and about whom I am writing a jurisprudential biography. (photo credit) Stevens served as a Navy codebreaker at Pearl Harbor from 1942-1945, and earned a Bronze Star for that service. The relevant passage from my 2006 article entitled John Paul Stevens, Human Rights Judge described Stevens' thoughts about perhaps the most famous targeted killing of World War II:

One event days before Stevens’s twenty-third birthday would stay with him for the rest of his life. The architect of the Pearl Harbor attack was Admiral Isoroku Yamamoto, who had learned English from a missionary and become a Babe Ruth fan while studying at Harvard in the 1920s. On April 14, 1943, Americans discovered that Yamamoto [right] was about to travel to the front. Unbeknownst to the Japanese, Stevens explained in an interview more than sixty years later, “We had broken the code.” On Roosevelt’s orders, U.S. pilots downed Yamamoto’s plane over a Solomon Islands jungle on April 18, Easter Sunday. “I was on duty on the day they brought the plane down,” Stevens said, “The message was, ‘We bagged one eagle and two sparrows,’ indicating success in the mission.” The kill buoyed the spirits of many, who knew that getting Yamamoto would, as Stevens put it, “have a tremendous strategic advantage.”
Stevens' own thoughts were more complex:
But the incident troubled the young officer. “I remember thinking that the planners must have engaged in a lot of deliberation before deciding to go along with the plan,” Stevens said. “I have read a number of books on it since and discovered that was not the case. They were concerned that targeting him would reveal that they had broken the code.” Accounts of the killing indicate that U.S. Admiral Chester A. Nimitz and others—in communications laced with foxhunting terms—debated only the tactical benefits and costs. “But they had no humanitarian concerns at all of the kind that troubled me,” Stevens said. That fact “kind of surprised me,” he continued, particularly given that Yamamoto “had spent time in the United States and had friendships among high-ranking American officers.”
Stevens reaffirmed this sensibility in a just-published New Yorker interview. There author Jeffrey Toobin tracked the Yamamoto account in my 2006 article (without, alas, citation to same). Implicitly linking the Yamamoto incident to his later discussion of Stevens' post-9/11 jurisprudence, Toobin contributed this insight:
The morality of military action became a lifelong preoccupation.
It's also worth noting that Stevens' concerns respecting that targeted killing had a profound effect on his capital punishment jurisprudence. The passage in my 2006 article thus continued:
Appearing before the Chicago Bar Association decades later, Stevens alluded to the event without naming the target. The Justice told his audience that the experience had sown doubts in his mind about another instance in which the state takes the life of a named individual; that is, capital punishment. Recalling that talk, Stevens affirmed that the Yamamoto incident led him to conclude that “[t]he targeting of a particular individual with the intent to kill him was a lot different than killing a soldier in battle and dealing with a statistic. . . . In my mind, there is a difference between statistics and sitting on a jury and deciding whether to kill a single person.”
As pointed out in note 178 of my article, Stevens revealed in a 1996 speech that, notwithstanding these doubts, at the time of his 1975 confirmation hearings, he did not himself know how he would vote on capital punishment. The Justice since has told me that in 1975 no Senator asked him his views, neither publicly nor privately. In 1976, he voted in Gregg and related cases to reinstate the death penalty. But as posted, in 2008, Stevens made public his conclusion that the death penalty, in all its applications, violates the 8th Amendment to the U.S. Constitution.
Stevens' linkage of targeted killing amid armed conflict with the targeting for execution of a convicted murderer provokes further thoughts:
► As my 2006 article observed,
That superior officers expressed no qualms in 1943 about targeting Yamamoto suggests earlier sources for Stevens’s “humanitarian” unease.
My 2010 article John Paul Stevens and Equally Impartial Government (now available in pdf here, and soon to be in print in the UC Davis Law Review) sets forth a story of Stevens's family that might have encouraged careful thought about the power of the state.
► It bears particular mention that although Stevens harbored what he called “humanitarian concerns” years before he would decide to enter law school, his were, fundamentally, the concerns of a lawyer. They signaled a visceral sense that the process of law, no less than law's substance, places valuable constraints on state power.
The quote at the very top of this post stands in conflict with that sense of justice.

[Cross-posted from IntLawGrrls]


February 27, 2010

Asia on our mind

"The Asian Century?"
So asked participants at yesterday's same-named conference (prior post) organized by our colleague Anupam Chander and sponsored by the Law Review here at the University of California, Davis, School of Law (Martin Luther King, Jr. Hall).
The answers were myriad, and themselves provoked questions. Indeed, participants on the panel that I had the privilege to moderate questioned the title's very premise:

'Where is Asia? When is Asia?'

 Teemu Ruskola queried. To this our colleague Keith Aoki added, in effect,

'What is Asia?'

The last "American Century" and the "British Century" that preceded it were different from this notion of an "Asian Century," Keith said. Those others concerned a nation-state; this concerns a continent.
I wonder.
It is persons in the West who put forward this notional Asian Century. Who treat "Asia" as a single entity rather than a mass of entities, as an it rather than a them. Who, at times, see its rising economic power, its rising population, its politics, as potential threats.
Is it possible that those earlier centuries, named as they were with state-centric particularity, were constructs of their subject namesakes? Possible that the objects of those other centuries aggregated threats much like some of us now do "Asia"?
From the perspective of those object persons, might the 1800s and 1900s have been, simply, back-to-back Western Centuries?
Even when pondering with particularity, did the object persons of the 20th view it not as the American, but perhaps as the Russo-American, Century?
Was the British Century a construct of Britain? Might objects of that 19th Century -- persons, say, colonized in Portugal-controlled Africa -- have seen it instead as the European Century? Or perhaps as the Colonial Century, as a time defined less by geographic map and more by method of governance?
Perhaps this 21st Century aggregation says less about "Asia" than it does about our mindset -- about how some in the West seem already resigned to an object status.
That resignation may prove premature.
The final panelist, Tom Ginsburg, reminded that other such prognostications have fallen flat; for instance, past predictions that Japan, Egypt, even Sri Lanka or Burma, would win dominance. Tom's own prediction: Asia will not aggregate into a supranational entity. Some of the many countries in that part of the world indeed may attain power. But they will wield it, Tom ventured, in ways that reinforce the old, the 17th Century, model of independent, noninterference-prizing nation-states.
In store in the 2000s may be not so much an Asian Century as -- to borrow Tom's coinage -- an Eastphalian Era.





February 9, 2010

Law & migration & mothers & children

What a treat to have moderated the opening session of Uprooted: The International Migration of Children, the symposium that 2 student journals here at the University of California, Davis, School of Law (Martin Luther King, Jr. Hall) -- our Journal of Juvenile Law and Policy and our Journal of International Law and Policy -- cosponsored on Friday. (A preconference notice is here.)
Titled "The International Context that Pushes Migration," the session provided a rich overview of the causes, conditions, and effects on families of transnational migration trends.
1st up was our colleague Chivy Sok (right), whose career in human rights advocacy includes current service as a member of the Steering Committee of the Ginetta Sagan Fund of Amnesty International USA, as well as prior human rights center leadership at Columbia University and the University of Iowa. Chivy told of her own childhood picking onions for hours in U.S. fields alongside others in her Cambodian refugee family. Chivy then placed her experience in context. More than 200 million children labor worldwide, she said. Three-quarters work in agriculture. Agricultural hazards -- injuries from equipment, harms from pesticides -- constitute a leading cause of death among children. Many of these children have no access to education, to health care, even to basic hygiene. Sok pointed to the Children’s Act for Responsible Employment, legislation that U.S. Rep. Lucille Roybal-Allard (D-Calif.) introduced in Congress last fall, as a potential means to address these problems.
Following Chivy was Jayne E. Fleming (left), Pro Bono Counsel at Reed Smith in San Francisco and the subject of a recent profile in the National Law Journal. (photo credit) Jayne recounted the forces of migration through stories about clients who live and work at a garbage dump in Guatemala. Economic forces of course play a role, she said, adding:

Extreme poverty is absolutely a human rights violation.

Other forces of migration also emerged during the session, among them: implementation of the Central American Free Trade Agreement; political violence and armed conflict; family disintegration; sexual exploitation or incest.
Yet another force was at the center of remarks by the session's 3d speaker, Dr. Rhacel Salazar Parreñas (right). Some women migrate not out of sheer desperation, she said, but out of desire to improve their family's economic and social mobility. Professor of American Studies and Sociology at Brown University, Rhacel told what she'd learned her ethnographic research on globalized domestic workers. She focused on how laws break up families, compelling mothers to leave their children behind when go abroad to work. Once there, mothers find themselves infantilized by law -- assigned the legal status not of an employee, but rather of a member of the employer's family. They must depend on employers to treat them well, and they discover, when employers do not, that national labor laws do not protect them. This vulnerable status prevails in countries that pride themselves on human rights records -- Rhacel named Denmark and Sweden in particular -- as well as in those that do not. One reason? A "maternalist ideology" by which "various states are in denial that mothers are leaving the home," and so fail to take measures to protect the migrant domestic workers who care for the home in their stead.

Kudos to these excellent speakers, to journal editors Eve Epstein and Monica Feltz and their staffs, and responsible for putting together this stimulating panel.

(Cross-posted at IntLawGrrls)