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Indisputable Violations: What Happens When the United States Unambiguously Breaches a Treaty
Get PDF!e United States justi ably prides itself on its devotion to “the rule of law.” We take legal instruments seriously; when we assume a binding legal obligation at home, we mean it, and we expect all parties to the agreement to demonstrate comparable fealty.
!is commitment to the law also extends to international agreements. Treaties are the coin of the international realm, and the United States leads the world both in making treaties and in publicly and pointedly holding others accountable when they fall short of full compliance. What happens, then, when the United States contravenes a binding international legal obligation in a manner so obvious and unarguable that it can o#er no defense to the charge of breach?
It happens more often than one might think and to more important treaties than one would hope, including treaties for which the United States continues to depend upon fastidious performance by other countries. Here, I present three illustrative cases studies of blatant U.S. violations of binding international legal obligations: the 1993 Chemical Weapons Convention, the 1963 Vienna Convention on Consular Relations, and the obligation to pay annual dues under the Charter of the United Nations. I explain the causes of these breaches and examine their adverse consequences for the United States and for the international rule of law
Human Rights Pragmatism and Human Dignity
Get PDFHuman rights sound a lot like moral rights: rights that we have because we are human. Many philosophers think it follows that the list of international human rights must therefore be founded on some philosophical account of moral rights or of human dignity. More recently, other philosophers have rejected this foundationalist picture of international human rights (“foundationalist” meaning that moral rights are the foundation of international human rights). These critics argue that international human rights need no philosophical foundation; instead, we should look to the actual practices of human rights: the practices of international institutions, tribunals, NGOs, monitors, and activists. I call this approach “human rights pragmatism.” It is pragmatism in that it puts practice rather than theory in the driver’s seat, and denies the need for theoretical foundations for international legal human rights.
In “Why International Legal Human Rights?” Allen Buchanan offers a forceful pragmatist critique of foundationalism, which he calls the “Mirroring View”: that international legal human rights must mirror moral rights. Buchanan demonstrates that there are reasons for establishing a regime of international legal human rights that have nothing to do with the Mirroring View. My paper is a response to Buchanan’s. I agree with Buchanan’s pragmatist critique of foundationalism, but I argue that without some connection between international legal human rights and moral rights grounded in human dignity, a regime of international legal human rights will fail on its own terms. The paper explores what that connection is, and explains why focusing on human dignity is essential on pragmatist, anti-foundationalist grounds
Amicus briefs of the National Association of Consumer Advocates in \u3ci\u3eDay v. Persels & Associates\u3c/i\u3e, 729 F.3d 1309 (11th Cir. 2013)
Get PDFThese amicus briefs are likely to interest legal academics and practitioners who write, research, and practice in the areas of (1) federal courts, (2) class actions, (3) separation of powers, (4) constitutional law more generally, and (4) federal litigation.
In Day v. Persels & Associates, 729 F.3d 1309 (11th Cir. 2013), an absent class member objected to a class-action settlement. The objector argued that the settlement was unfair because, among other reasons, it provided no monetary recovery to the class members. In the district court, prior to class certification and settlement, the defendants and the named plaintiff had consented to authorize a federal magistrate judge to enter a final judgment in the action as permitted by 28 U.S.C. 636(c).When a magistrate judge enters a final judgment under section 636(c), the judgment is appealable directly to the court of appeals. No Article III district judge has any decision making role.
In the lower court in Day, the magistrate judge approved the class-action settlement, and the objector appealed directly to the Eleventh Circuit. At that point, my client—the National Association of Consumer Advocates (NACA)—entered the picture as an amicus. NACA argued (in order of breadth) that (1) 28 U.S.C. 636(c) is unconstitutional because consent is an insufficient basis to override the general constitutional requirement that only an Article III judge (and not a non-life-tenured magistrate judge) may enter a final federal-court judgment; (2) even if the parties’ consent to a magistrate judge ordinarily would suffice to make 28 U.S.C. 636(c) constitutional, the named parties’ consent in a class action is not constitutionally sufficient to bind absent class members because, as the class-action device ordinarily operates, absent class members lack the ability to provide the knowing and voluntary consent necessary to section 636(c)’s constitutionality; and (3) at a minimum, if section 636(c) can be constitutionally employed in a class action, due process demands that the absent class members be notified that the class representatives have decided to give up the absent class members’ constitutional rights to have their case decided by an Article III judge (which the class notice in Day did not do). If the absent class members are notified, they can choose to register their lack of consent to the magistrate judge, in which case the district judge presumably would take over and exercise decision making authority.
No party raised these constitutional issues in the district court or in the court of appeals. NACA maintained, however, that because these issues went to the district court’s jurisdiction—that is, the court’s constitutional power to adjudicate—its arguments had to be considered by the Eleventh Circuit. For the same reason, NACA asked for permission both to file an amicus reply brief and to present oral argument—both of which the Eleventh Circuit granted.
Though it reversed approval of the settlement on narrow grounds related to the merits of the settlement, the Eleventh Circuit rejected NACA’s jurisdictional arguments by a vote of 2-1 in an opinion by Circuit Judge William Pryor. Day, 729 F.3d at 1316-1326. U.S. District Judge Philip Pro, sitting by designation, dissented in relevant part. Id. at 1328-1339. Relying in large part on the reasons provided by NACA, Judge Pro would have ruled on statutory (and not constitutional) grounds that the “parties” eligible to grant consent to a magistrate judge under 28 U.S.C. 636(c) do not include absent class members. (Interestingly, before he was a district judge, Judge Pro served as a magistrate judge. He has published articles on the role of magistrate judges in the federal judicial system. After Judge Pro became a district judge, Chief Justice Rehnquist appointed him chair of the Committee on the Administration of the Magistrate Judges System of the Judicial Conference of the United States.)
The question whether the magistrate-judge consent provision of 28 U.S.C. 636(c) is constitutional may take on added importance in light of Executive Benefits Insurance Agency v. Arkison, No. 12-1200 (U.S. argued Jan. 14, 2014), which will be decided this Term by the Supreme Court. Executive Benefits presents a variety of questions about the constitutionality of party consent to adjudication by an Article I bankruptcy judge to decide questions that, in the absent of consent, could only be decided by an Article III judge.
A final note: In approving the class-action settlement in Day, the magistrate judge deferred to the settling lawyers’ recommendation that the settlement was a good deal for the class and to what the magistrate judge viewed as the excellent reputations and abilities of the lawyers for class. NACA’s amicus briefs strenuously objected to this holding, which, unfortunately, finds considerable support in class-action case law. NACA argued that the magistrate judge’s deference holding was at odds with the respective roles of lawyers and judges in the adversary system and with judicial independence. NACA argued that deference to lawyers’ reputations and abilities should never play a role in judicial decision making, especially in the class-action context. See Brian Wolfman, Judges! Stop Deferring to Class-Action Lawyers, 2 U. Mich. J.L. Reform (online) 80A (2013). The Eleventh Circuit in Day did not reach this argument
Confronting Criminal Law’s Violence: The Possibilities of Unfinished Alternatives
Get PDFConfronting criminal law’s violence calls for an openness to unfinished alternatives — a willingness to engage in partial, in process, incomplete reformist efforts that seek to displace conventional criminal law administration as a primary mechanism for social order maintenance. But despite all indications that the status quo in U.S. criminal law administration is profoundly dysfunctional — an institutional manifestation of the deepest pathologies in our society — contemporary criminal law reform efforts and scholarship focus almost exclusively on relatively limited modifications to the status quo. These modifications may well render criminal law administration more humane, but fail to substitute alternative institutions or approaches to realize social order maintenance goals. In particular, these reformist efforts continue to rely on conventional criminal regulatory approaches to a wide array of social concerns, with all of their associated violence: on criminalization, policing, arrest, prosecution, incarceration, probation, and parole. Thus, even as these reformist approaches may offer substantial benefits, they remain wed to institutions that perpetrate criminal law’s violence and to limited temporal and imaginative horizons. By contrast, this essay explores a series of criminal law reform alternatives that offer more fundamental substitutes for criminal law administration. More specifically, this essay focuses on the possibilities of alternatives to criminal case processing that substitute for the order-maintaining functions currently attempted through criminal law enforcement. These alternatives hold the potential to draw into service separate institutions and mechanisms from those typically associated with criminal law administration. Further, these alternatives enlist on more equal footing and invite feedback and input from persons subject to criminal law enforcement. Importantly, this latter subset of reform alternatives is decidedly unfinished, partial, in process. I will argue that this unfinished quality ought not to be denied as an embarrassment or flaw, but instead should be embraced as a source of critical strength and possibility. In this dimension, this essay is a preliminary call for more attention on the part of legal scholars and criminal law reform advocates to unfinished partial substitutes for the order-maintaining work performed by criminal law administration — a call to attend further to as yet incomplete reformist alternatives that may portend less violent and more self-determined ways of achieving some measure of social order and collective peace. I begin to develop this argument by drawing, in particular, on the work of the Norwegian social theorist and prison abolitionist Thomas Mathiesen
Military Commissions and the Paradigm of Prevention
Get PDFWhy military commissions? Given the United States’s track record of success in trying terrorists in civilian criminal courts, and the availability of courts-martial to try war crimes, why has the United States government, under both the George W. Bush and Barack Obama administrations alike, insisted on proceeding through untested military commissions instead? In May 2009, President Obama defended military commissions with the following claims: Military commissions have a history in the United States dating back to George Washington and the Revolutionary War. They are an appropriate venue for trying detainees for violations of the laws of war. They allow for the protection of sensitive sources and methods of intelligence-gathering; they allow for the safety and security of participants; and for the presentation of evidence gathered from the battlefield that cannot always be effectively presented in federal courts.
Do these justifications warrant the use of military commissions? In this essay, I maintain that they do not. In the end, the impetus behind the military commissions is the hope – in my view, unsupported – that the commissions may permit easier convictions of individuals, and may allow prosecutors to avoid confronting the consequences of the United States’ systemic reliance on torture and cruel, inhuman, and degrading tactics in its interrogations of detainees. In this respect, the commissions are best understood not as a legitimate forum for trying war crimes, but as an avenue for short-circuiting legal processes that might hold us accountable for our wrongs.
The military commissions are a by-product of the “paradigm of prevention,” a term coined by then-Attorney General John Ashcroft for the post-9/11 emphasis on aggressively preventing future terrorism, rather than responding to crime after the fact. That approach stressed early intervention and aggressive gathering of intelligence about future threats, and therefore led government officials to sweep broadly, presume guilt without substantial evidence, detain innocents, and adopt “enhanced interrogation techniques” to coerce detainees into talking. Those choices, in turn, have greatly complicated and compromised the task of holding terrorists accountable, because such illegal shortcuts on investigatory rules taint any evidence obtained therefrom, and make it inadmissible in a criminal trial.
The military commissions reflect an ill-advised effort to avoid paying the price for the “paradigm of prevention.” That goal is an illegitimate one, and will in the end leave the commissions – and any convictions obtained in them – fundamentally tainted. Absent a willingness both to reckon candidly with the United States’ own past wrongs, and to proceed in the future under fundamentally fair trial procedures, the military commissions are likely to disserve our security interests and undermine our constitutional principles
The Sad Story of the Northern Rocky Mountain Gray Wolf Reintroduction Program
Get PDFA reflection on the past, present and future of environmental law in this 20th Anniversary Edition offers an opportunity to revisit the Endangered Species Act, particularly the Northern Rocky Mountain States federal wolf reintroduction program. Environmental programs that depend on public support for their effectiveness are problematic when the government fails to understand and compensate for this fact. This essay explores the proposition that the federal government\u27s failure to anticipate and respond to the negative reaction of people adversely affected by proposed solutions to environmental problems is contributing to a lack of progress despite great strides in our scientific understanding. This problem is particularly apparent in the Northern Rocky Mountain States federal wolf reintroduction program under the Endangered Species Act (ESA). Although wolves have thrived from a biological perspective as a result of the program, public resistance in the areas where wolves were released has not abated. That conflict may threaten to undermine the wolf\u27s extraordinary recovery now that its protections have been lifted by the U.S. Department of the Interior
Poor People Lose: \u3ci\u3eGideon\u3c/i\u3e and the Critique of Rights
Get PDFA low income person is more likely to be prosecuted and imprisoned post-Gideon than pre-Gideon. Poor people lose in American criminal justice not because they have ineffective lawyers but because they are selectively targeted by police, prosecutors, and law makers. The critique of rights suggests that rights are indeterminate and regressive. Gideon demonstrates this critique: it has not improved the situation of most poor people, and in some ways has worsened their plight. Gideon provides a degree of legitimacy for the status quo. Even full enforcement of Gideon would not significantly improve the loser status of low-income people in American criminal justice
Continued Oversight of the Foreign Intelligence Surveillance Act : Hearing Before the S. Committee on the Judiciary, 113th Cong., October 2, 2013 (Statement by Professor Carrie F. Cordero, Geo. U. L. Center)
Get PDFFrom my perspective, the challenge for members of this Committee is to identify whether there are actual problems with either the law or process, and then craft remedies that address those specific issues. I am here to urge caution in implementing “quick fixes” that may sound appealing based on public or media-driven pressure, but that could have lasting consequences at a practical level that could negatively impact Intelligence Community operations and the nation’s security for years to come
Bloomberg’s Health Legacy: Urban Innovator or Meddling Nanny?
Get PDFMichael Bloomberg leaves the mayoralty of New York City, with his health legacy is bitterly contested. The public health community views him as an urban innovator—a rare political and business leader willing to fight for a built environment conducive to healthier, safer lifestyles. To his distractors, however, Bloomberg epitomizes a meddling nanny—an elitist dictating to largely poor and working class people about how they ought to lead their lives. His policies have sparked intense public, corporate, and political ire—critical of sweeping mayoral power to socially engineer the city and its inhabitants.
Here, I seek to show how Bloomberg has fundamentally changed public health policy and discourse. He has used the engine of government to make New York City a laboratory for innovation—raising the visibility of public health, testing policy effectiveness, and probing the boundaries of state power. The courts have blocked some of his boldest initiatives, but he offered a paradigm for the “new public health”—reaching beyond infectious diseases to upstream risk factors in everyday life and the human habitat. I also critically probe various arguments designed to derail his policies (e.g., questions of policy consistency, scientific evidence, First Amendment claims, and civil liberties) along with the overarching charge of unjustified paternalism.
The article discusses key Bloomberg policies, including those in the areas of diet and nutrition (e.g., menu labeling, trans fat ban, and the soda portion limit); physical activity (e.g., bike and walking paths, safe school routes, parks); and tobacco control (smoke free laws, cigarette taxes, and advertising restrictions). A graphic categorizing his major health policies appears at http://www.law.georgetown.edu/oneillinstitute/gostin_hcr_bloombergshealthlegacy.html
Regulation of Dispute Resolution in the United States of America: From the Formal to the Informal to the ‘Semi-formal’
Get PDFThe story of ADR in the US is one of ‘co-optation’ of what was to be a serious challenge to formalistic and legalistic approaches to legal and social problem solving and is now highly institutionalized by its more formal use in courts. At the same time, use of private forms of dispute resolution in mediation, arbitration and newly hybridised forms of dispute resolution among disputants who can choose (and afford) to leave the formal justice system (in both large commercial matters and private family matters) has resulted in claims of increased privatization of justice, with consequences for access to justice in different areas of legal dispute resolution. These consequences include difficulty of access to some forms of private dispute resolution for those who cannot afford them and claims that, with mass exits from the formal system by those who can afford to ‘litigate’ elsewhere, there is less interest in judicial service and reform. In addition, in recent years consumers and employees have been subjected to contractual commitments to mandatory arbitration, sustained by the US Supreme Court, which has all but eliminated choice about where to resolve certain kinds of disputes. All of these claims are highly contested by practitioners, judges and scholars of the American legal system