June 23, 2009

Defining Transnational Legal Process

Much of the criticism of the nomination of Dean Harold Koh for the position of Legal Advisor to the State Department has been directed at Dean Koh’s views of the relationship between international law and domestic law.  Much of this criticism has been based on a misunderstanding of the concept of “transnational” law. Unfortunately, popular media accounts have contributed to this error.

The New York Times “Opinionator” blog defined “transnationalism” on April 14, 2009 by relying on a blog post by Ed Whelan on the National Review Online website. Whelan states, and the New York Times repeats: “Transnationalists aim in particular to use American courts to import international law to override the policies adopted through the processes of representative government.” This characterization of the transnationalist scholars’ objective is wrong, as I will explain below. Ed Whelan, it should be noted, is hardly a neutral observer: a former law clerk for Justice Scalia, Whelan served as the principal deputy in the Office of Legal Counsel in the Bush Administration from 2001 to 2004. This is of course the office that produced the infamous torture memos, thought by many to flout international and domestic law. Whelan offers that, while he was at the Justice Department, “[h]is portfolio did not include national security matters.” Justice Scalia, Whelan’s former boss, has long complained that his fellow Justices have undermined the democratic process by reference to international or foreign law.

The Wall Street Journal blog entry on transnational law also mistakenly suggests that transnationalism threatens democracy: 

Let us introduce you to a new phrase in international law (or at least one that’s new to us): “transnational juri[]sprudence.” In regard to Koh, it’s this theory that apparently has conservatives worried.

“Harold Koh has a reputation as being the leading scholar on transnationalist jurisprudence,” said Robert Alt, deputy director of legal and judicial studies at the Heritage Foundation, a conservative think tank. “Particularly among conservatives, that school of thought is disturbing insofar as it seems to suggest transnational law trumps constitutional rights, and thereby may be a threat to American sovereignty.”

In other words, if Koh becomes the chief legal adviser to American diplomats, he would give undue influence to foreign legal opinions, perhaps limiting American options in matters of national security.

Indeed, as the Globe chronicles, Koh has repeatedly contended that such activities as “helping forge international agreements, participating in the United Nations, and supporting international war crime tribunals are in the best interests of the United States.”

Both the New York Times and the Wall Street Journal thus unwittingly repeat the right wing attack on international law.

            But what is the transnational legal process? The term refers to the process where a variety of actors interact in various fora to interpret and internalize rules of international law. (To hear Koh himself describe transnationalism, watch Koh’s lecture a few years ago titled “Transnational Legal Process After September 11,” available on YouTube.)

Does this threaten democracy? Transnationalists do not seek deference to some kind of global nose count. The transnational legal process ultimately remains democratic exactly because of the “norm internalization” process, which transforms a rule from an “external sanction” to an “internal imperative.” “That,” Justice Breyer observes, “is the democratic process in action.” Transnational norm entrepreneurs and issue networks frequently have no more power than that of persuasion and the authority that comes from moral standing and cogent argument. Even authoritarian states often observe this process, internalizing international law norms that they find necessary to participate in the international political and economic process.” Anupam Chander, Globalization and Distrust, 114 Yale L.J. 1193, 1229-30 (2005) (citing Harold Hongju Koh, How Is International Human Rights Law Enforced?, 74 Ind. L.J. 1397, 1400 (1999); Stephen Breyer, Keynote Address, 97 Am. Soc’y Int’l L. Proc. 265, 268 (2003)).

 

As Koh explains:

 

There is nothing antidemocratic about academics, nongovernmental organizations, judges, executive officials, Congress, and foreign governments interacting in a variety of private and public, domestic and international fora to make, interpret, internalize, and ultimately enforce rules of transnational law. To the contrary, it is precisely through this transnational legal process that interlinked rules of domestic and international law develop, and that interlinked processes of domestic and international compliance come about. In this transnational legal process, the several states, foreign governments, and international bodies do not represent competing sovereigns, all vying for the right to control America's judicial destiny. Rather, a transnationalist jurisprudence suggests, the United States expresses its national sovereignty not by blocking out all foreign influence but by vigorous ‘participation in the various regimes that regulate and order the international system.’

 

Id. 

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Posted by Anupam Chander on June 23, 2009 at 09:46 AM in Globalization | Permalink | Comments (0) | TrackBack (0)

May 27, 2009

Korean IP Law Poses Hurdle to Korean Bloggers

Fearing new Korean laws aimed to thwart online copyright infringement, Google has shut off audio uploads to its local blogging site, the Korea Times reports. This has the consequence of barring the publication of both (the local version of) fair use and licensed work.  The baby and the bathwater are both jettisoned.  Indeed, this seems a natural result of many who argue for maximalist IP protection.


Google has banned subscribers to its Korean blogging platform, Textcube (www.textcube.org), from uploading songs onto their blogs, citing the country's new anti-file sharing provisions aimed at thwarting online piracy. This is the first time that the U.S. giant has disabled its bloggers from posting music files on their personal Web pages. 

As of Monday, Textcube users were blocked from uploading MP3, WMA, WAV and other types of music files on their blogs, while existing songs were blinded and are now accessible only to the logged-in owners of the blogs. 


Posted by Anupam Chander on May 27, 2009 at 09:00 AM in Digitization | Permalink | Comments (0) | TrackBack (0)

Judge Sotomayor's Cyberlaw Opinions

Thomas O'Toole at the BNA has a helpful round-up of Judge Sotomayor's opinions in cyberlaw.  


While a District Court judge, she held in favor of the N.Y. Times in its dispute with Tasini and other freelance authors--a win for a corporation against individual plaintiffs.  (I preferred the Supreme Court's holding on the subject, though Judge Sotomayor's decision is certainly reasonable.)

Her opinions in domain name cases, as summarized by O'Toole, seem to be eminently reasonable interpretations of the law.

Her most important opinion in this area is Specht v. Netscape, an opinion that is now a classic in cyberlaw, reproduced in all casebooks on the subject. There she declined to enforce Netscape's terms of use for a particular plug-in when Netscape had done a very poor job of making users aware of the existence of those terms.  This opinion might be classified as pro-consumer, though it again seems an eminently reasonable application of the background legal rules.  The opinion is sophisticated and thorough.

All in all, a creditable jurisprudence in the area.

Posted by Anupam Chander on May 27, 2009 at 08:14 AM in Digitization | Permalink | Comments (0) | TrackBack (0)

The Justice from Bronxdale

Bronxdale

Posted by Anupam Chander on May 27, 2009 at 04:52 AM | Permalink | Comments (0) | TrackBack (0)

May 25, 2009

Memorializing the Fallen

Google engineer Sean Askay has produced a data overlay onto Google Earth that memorializes each of the American (and other Coalition) soldiers killed in Iraq and Afghanistan.  

It lists 5,679 Coalition deaths, as of March 2009.

It links to information about each individual, and includes a picture of the person in uniform.  Lines trace their hometown to their place of death on the other side of the earth.

Rest in peace.

Posted by Anupam Chander on May 25, 2009 at 06:51 AM in Globalization | Permalink | Comments (0) | TrackBack (0)

May 19, 2009

What Brands Make Up Your Day?

A person who goes by the moniker Jane Sample has posted an account of her typical day using brands for commercial products to represent her experiences.  


Mine would begin with newspapers.

Posted by Anupam Chander on May 19, 2009 at 04:32 AM in Digitization | Permalink | Comments (0) | TrackBack (0)

May 11, 2009

The Constitution in 2020

Some of the nation's leading legal scholars have contributed essays to a new volume, "The Constitution in 2020," edited by Jack Balkin and Reva Siegel.  Very cheap on Amazon and a nice idea for summer reading...

Posted by Anupam Chander on May 11, 2009 at 09:31 AM | Permalink | Comments (0) | TrackBack (0)

May 09, 2009

David Souter, Human Rights Justice

 Souter2sm.jpg Over at Balkinization, I argue that David Souter deserves recognition for his opinion in Sosa v. Alvarez-Machain, a decision that permits alien victims of torts to sue for violations of international law, pursuant to the grant of jurisdiction in a 1789 statute.


I conclude there: "Since Sosa, individuals have continued to seek to bring human rights abuses to justice through U.S. courts. Justice Souter deserves recognition for allowing the U.S. courts to serve this crucial role in justice."

Posted by Anupam Chander on May 9, 2009 at 08:58 AM | Permalink | Comments (0) | TrackBack (0)

May 05, 2009

Dean Harold Koh, Protecting America, and Protecting Liberty

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When Ed Meese, Alfred Regnery, Grover Norquist, Phyllis Schlafly, and Richard Viguerie join forces to come out swinging against someone, perhaps that means that they are afraid of that person.

Ten right wing leaders, including the five mentioned above, have launched an attack on Yale Law School Dean Harold Koh, whom President Obama nominated to serve as the Legal Adviser to the State Department.

It is important to correct some of the misstatements about Dean Koh’s views in this right wing attack.

First is the most outrageous claim: that Dean Koh would bar the United States from protecting Americans:

Koh favors a flat ban on the United States government ever taking action to prevent American citizens from severe and imminent threats to national security.  Koh opposes the very idea that American government officials should act to promote what they perceive to be our national self-interest.

No citation is offered for this claim. The reality, of course, is otherwise. Dean Koh’s 1990 book was titled The National Security Constitution, and it described the way that the three branches could work together to protect the country. More recently, Dean Koh has written: “At the dawn of the post-Cold War era, the international law rules for using force seemed pretty clear: One state could lawfully breach another’s territorial sovereignty only if one or more of three conditions obtained: response to aggression, self-defense, or an explicit U.N. Security Council resolution.” On American Exceptionalism, 55 Stan. L. Rev. 1479, 1515 (2003).

Second, they claim that Dean Koh would threaten American free speech.

He objects to America’s “distinctive rights culture,” which he complains gives “First Amendment protections for speech and religion … far greater emphasis and judicial protection in America than in Europe or Asia.”

Dean Koh was once Assistant Secretary of State for Democracy, Human Rights, and Labor. In that position, he championed free speech throughout the world, and denounced political repression. His writings have never shown anything but admiration for our speech tradition. The characterization is misleading, almost to the point of disingenuousness. Dean Koh never “complains” about our protections for speech and religion. The full quote from Koh’s article is instructive: “By distinctiveness, I mean that America has a distinctive rights culture, growing out of its peculiar social, political, and economic history. Because of that history, some human rights, such as the norm of nondiscrimination based on race or First Amendment protections for speech and religion, have received far greater emphasis and judicial protection in America than in Europe or Asia.” Id. at 1484. (Note that the right wing critics' characterization neatly excised the reference to "nondiscrimination based on race" from the original quote.) Dean Koh has been a steadfast champion of equality, free speech, and freedom of religion. 

Third, they claim that Dean Koh “favors foreign law over American law” and “wants to impose on us the views of foreign and international bureaucrats.” This has been debunked by many people, including Duncan Hollis and Chris Borgen. Dean Koh shows respect for international law, as does the U.S. Constitution; consider that document’s own words, in a sentence that has come to be known as the Supremacy Clause:

"This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the contrary notwithstanding." 

Fourth, they claim that he might support prostitution and do away with Mother's Day.

... he strongly supports a treaty that has been interpreted by the treaty’s own committee to create rights to abortion and prostitution, to have the government determine the pay scale of every job, and even to require the abolition of Mother’s Day. 

Parts of this claim have been debunked by Beth Van Schaack. The reference is to the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), a treaty that has been ratified by 185 countries, including all OECD states, except the United States. The American Bar Association has long urged the ratification of CEDAW. Unless the ABA and 185 countries have a secret agenda to promote prostitution and eliminate Mother’s Day, this claim seems far-fetched. CEDAW became effective in 1981--proponents of its alleged agenda to promote prostitution and demote motherhood better up their game. (And by the way, Happy Mother's Day, Mom and Madhavi!)

Fifth, they claim that Dean Koh would “threaten[] a massive redistribution of wealth from American citizens to international left-wing activists.” This claim repeats the claim of Curtis Bradley and Jack Goldsmith in a recent op-ed complaining of a case challenging American and European companies who provided support to the Apartheid government in South Africa. Dean Koh has long supported the Alien Tort Statute (ATS), a statute enacted in 1789 as part of the First Judiciary Act (hardly a radical provenance).  Like any tort statute, it gives the victim of a tort the right to sue the tortfeasor. Judge Shira Sheindlin’s 135 page decision in the case is careful and considered, not radical.

This has been a rebuttal of some of the unfair charges. It is far better to make an affirmative case for Dean Koh. Countless individuals have offered their testimony on Dean Koh’s behalf. A hundred law deans, hundreds of law professors, Ted Olson, and Kenneth Starr, for example, have all endorsed his candidacy for Legal Adviser. But more fundamentally, one might do well to consider the values expressed in his representation of Haitian refugees, many with AIDS, in the 1990s, as chronicled by Brandt Goldstein in Storming the Court. Consider as well the love for American leadership in the world that Dean Koh expresses in the same Stanford Law Review article that his detractors seek to twist into unrecognizable shape:

My second, bittersweet anecdote comes from my childhood. It is really the story that made me a human rights lawyer. My late father, Dr. Kwang Lim Koh, served as Minister to the United States for the first democratically elected government in South Korea. In 1961, a military coup overthrew the democratic government of Prime Minister Chang Myon, and Chang was taken into house arrest amid rumors that he would shortly be executed. To plead for Chang's life, my parents brought Chang's teenaged son to see Walt W. Rostow, then the Deputy National Security Adviser to the President. As my father recalled, Rostow turned to the boy, and told him simply, "We know where your father is. Let me assure you, he will not be harmed."  
Rostow's words stunned my father, who simply could not believe that any country could have such global power, reach, and interest. The story so impressed my father that he repeated it on countless occasions as I grew up, as proof of the exceptional goodness of American power.

If anyone doubts Dean Koh’s commitment to freedom, one need only listen to his personal testament as to his credo on NPR’s “This I Believe” series, where he describes “The Bright Lights of Freedom.”

Posted by Anupam Chander on May 5, 2009 at 11:10 PM in Current Affairs | Permalink | Comments (0) | TrackBack (1)

April 30, 2009

Video of Torture in the UAE

ABC's Brian Ross has obtained a shocking video of torture on the desert sands, apparently conducted with UAE police officers assisting a member of the royal family.


Every adult should sit through this.  The video shows vividly how inhumane one person can be to another.

One might recall that the CIA destroyed video of Americans torturing terrorism suspects in 2005.  By linking these two cases, I do not mean to draw an equivalence. 

Posted by Anupam Chander on April 30, 2009 at 11:39 AM | Permalink | Comments (1) | TrackBack (0)

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