Author Archive for
Peggy McGuinness

Trump and International Human Rights #1: The Man and the Government

by Peggy McGuinness

As I recover from the gut-punch delivered last Tuesday, I plan to get back to blogging – something I have put aside for other priorities in the past years. The times and the issues are urgent, and I am anxious to engage with our readers and colleagues around the world at what I see as an extremely fragile period for the U.S. and the globe.  Trump is not a normal president-elect, and we are not in normal times.  In that spirit I plan to resist attempts to normalize Trump. This will the first in an ongoing series on the Trump transition and US engagement with international human rights.

For over 40 years, the U.S. has maintained a bipartisan commitment to the promotion of human rights around the globe.  The depth and the breadth of that commitment has, to borrow a phrase from President Obama, zigged and zagged.  It has bent to presidential national security policies and priorities, and the scope of what is meant by “human rights” has been subject to ideological interpretation by particular administrations.  But a commitment to the broad international project of human rights has remained a constant and ingrained feature of U.S. foreign policy.  Will President-elect Trump – who campaigned on a deeply isolationist rhetoric that explicitly disclaimed an interest in the human rights practices of other states – maintain this commitment?  It will take some time to fully understand the implications of a Trump presidency on US human rights policy, but I want to start by discussing two dimensions to U.S. foreign policy engagement with international human rights:  presidential policy and the human rights bureaucracy.

Let’s be frank:  We have no idea what Trump’s “policy” on human rights – or much else for that matter – will be, since he campaigned on virtually no policies in the traditional sense.  So we start with Trump himself.  We know that he is a man who has acted and spoken as a bigot, sexist and misogynist.  He is a man who admires authoritarian and anti-democratic regimes.  He is a man who has – at least implicitly if not explicitly – emboldened racists and anti-Semites among his supporters, groups that are a very small but sadly resilient element of American politics.  And he has among his closest advisers leaders of the so-called alt-right movement that fuels vile conspiracy theories, including the racist “birtherism” movement against President Obama that Trump himself used as the platform that launched his political campaign.  He has never, as far as I am aware, in his long public life, expressed genuine empathy or concern for the suffering of others.  And the scope of his business interests, the details of which remain largely undisclosed, poise him to embody as president the kind of personal corruption and conflicts of interest that the U.S. usually makes the focus of its anti-corruption and good governance efforts. He has acted and spoken in ways that would subject him, quite properly, to criticism and condemnation by the U.S. government if he were a foreign leader.  Trump, the man, is no defender of human rights.  At best, Trump is an empty vessel, a self-absorbed “bullshit artist” (hat tip:  Fareed Zakaria). At worst, Trump’s contempt for democratic norms and institutions poses a serious danger to American democracy and his rhetoric and behavior will completely undermine the ability of the U.S. to speak with any authority – moral or otherwise —  on questions of human rights.

Given the range of possibilities here, my first question is whether Trump can be constrained, in the ways Michael Glennon argues all presidents are constrained(and in the way Deborah suggested earlier), by the institutions of the government he will lead?  Throughout the executive branch, at the Departments of State, Defense, Homeland Security, Labor, Commerce and Justice, as well as the intelligence agencies and the national security staff at the White House, hundreds of lawyers, diplomats and other government officials monitor and report on the human rights practices of governments all over the world.  Hundreds more work on creating, funding and implementing projects designed to promote human rights, democracy and the rule of law .  This federal “bureaucracy of international human rights” cannot be easily or swiftly dismantled.  The central human rights institutions and networks within the Executive Branch (the Bureau of Human Rights Democracy and Labor, for example) are creatures of statute and of congressional funding priorities.  And it is not clear the Republican House or Senate are interested in eliminating or restructuring of these.  Keep in mind that funding for democracy promotion and other rule of law programs was a favorite of the George W. Bush administration.

The Republican party platform suggests that one dimension of the US commitment to human rights may receive special attention: International Religious Freedom. The US Commission on International Religious Freedom – a favorite of the evangelical right — will continue to be funded, and the platform further states:

At a time when China has renewed its destruction of churches, Christian home-schooling parents are jailed in parts of Europe, and even Canada* threatens pastors for their preaching, a Republican administration will return the advocacy of religious liberty to a central place in its diplomacy, will quickly designate the systematic killing of religious and ethnic minorities a genocide, and will work with the leaders of other nations to condemn and combat genocidal acts.

(*I am not familiar with the anti-religion policies in Canada that are referenced here, but maybe a reader can help me out.)  This is a robust statement in favor of reinforcing the UDHR and ICCPR rights that are mentioned in the 1998 International Religious Freedom Act, the statute that created both USCIRF and the office of International Religious Freedom at the State Department. But it also includes some strong language regarding genocide that would trigger  U.S. obligations under the Genocide Convention.  The platform goes on to endorse continuing engagement on anti-human trafficking programs (and, presumably, continuing the annual trafficking report required by Congress).  As to the broader question of human rights diplomacy, the platform states:

The United States needs a radical rethinking of our human rights diplomacy. A Republican administration will adopt a “whole of government” approach to protect fundamental freedoms globally, one where pressing human rights and rule of law issues are integrated at every appropriate level of our bilateral relationships and strategic decisionmaking. Republican policy will reflect the fact that the health of the U.S. economy and environment, the safety of our food and drug supplies, the security of our investments and personal information in cyberspace, and the stability and security of the oceans will increasingly depend on allowing the free flow of news and information and developing an independent judiciary and civil society in countries with repressive governments such as China, Russia, and many nations in the Middle East and Africa. 

Supporting rule of law projects that promote the “free flow of news and information” and develop “an independent judiciary and civil society” is precisely what the human rights bureaucracy within the Executive has been doing for at least three decades under presidents of both parties.  But if the Republicans want to pitch this as a “radical rethinking,” that’s fine by me.  (They may even want to share their view on a free press with the President elect.)

Taken together, I think it unlikely that the Trump administration will dismantle the bureaucracy of human rights – at least not soon, and certainly not in areas that are important to the Republican Congress.  But unlike the national security functions whose purpose lies at the heart of immediate security and safety of the American people, the human rights bureaucracy can be deeply damaged by the tone and priorities set by the President and his key foreign policy appointees – State, Nat’l Security Adviser, DHS, and the UN Ambassador, among others.  And of course, more than ever, the actual human rights practices of the U.S. at home – issues of domestic rule of law, criminal justice, gender equality, LGBT rights – will either strengthen or weaken the ability of the U.S. to practice human rights diplomacy abroad.  Appointments at the Dept. of Justice and nominees for the bench will send the clearest signal on that front.

 

 

 

St. John’s Law School Search: Assistant Dean for Graduate Studies

by Peggy McGuinness

St. John’s University School of Law in New York City is conducting a search for a new Assistant Dean for Graduate Studies to head up our LLM programs and other international non-JD programs and initiatives.  Here is the formal announcement with key contact information, but feel free to reach out to me directly if you are interested in learning more about it.

St. John’s Law School is now looking for an Assistant or Associate Dean for Graduate Studies, who will be the senior administrator responsible for the development and management of initiatives related to non-J.D. degrees and programs at the Law School. The ADGS will oversee four existing LL.M. programs: (1) U.S. Legal Studies for Foreign Trained Lawyers (which qualifies graduates to sit for the New York bar exam); (2) Transnational Legal Practice; (3) International Sports Law Practice; and (4) Bankruptcy.  We are looking for candidates with a strong entrepreneurial spirit and keen business sense to develop new degree programs and opportunities as market conditions permit. This is primarily a leadership/management position and will not lead to a tenure-track appointment. The ADGS will develop linkages and partnerships with foreign and domestic educational institutions, bar associations, law firms, and other institutions. The ADGS will also be the senior administrator in the graduate programs area and will manage an office that includes three directors (including one who spends significant time recruiting students in Asia), an office assistant, and a Europe-based consultant.

A J.D. (or J.D.-equivalent from a foreign jurisdiction) and admission to practice law in at least one U.S. jurisdiction and/or significant experience in higher education administration is required.

Interested candidates should submit letters of inquiry and CVs to lawfac [at] stjohns [dot] edu

Opinio Juris and the Not-So-Invisible College of International Law

by Peggy McGuinness

When Chris, Julian and I started our modest “conversation” about international law ten year ago, we were not universally praised.  Nor were we instantly accepted.  Who did we think we were, we pre-tenure punks just starting out in this field? And what were people to make of this short-form, internet-based content?  As Chris noted, we really didn’t know what we were doing or where things were going. (In fact, I distinctly remember admiring Roger for his confidence that we were on the right track and that this blogging thing would have legs!)   What Chris, Julian and I did recognize, from the very first days and weeks of the blog, was that we were creating a community.  And that mattered.

When we started, international law was, and on many U.S. law faculties still is, a “niche” area (which is just a polite way of saying that many U.S. law professors find international law esoteric at best, and irrelevant or dangerous at worst).  As Peter rightly notes, international law has mostly “made it.”  But a decade ago, at many U.S. law schools there was just one “internationalist” professor who carried the load of both public and private international law courses.  Long before Facebook, Twitter and Linked-In, Opinio Juris became a “connector” for many of us “lone wolf” international law professors scattered throughout the U.S. Through Opinio Juris we got to know scholars around the U.S. and the globe – friendships and collaborations that existed through the comments section, through email relationships, and, on occasion, an offer or invitation to guest blog.  Along the way, we upended what the late Oscar Schachter referred to as the “invisible college” of international law.  As part of the broader trend of flattening and democratizing the marketplace of academic and policy ideas that technology has made possible, OJ has contributed to making the invisible college not only visible, but accessible.  In 2005, there was almost no other place for a grad or law student to join a comment thread that included professors and government practitioners.  There was almost no other place for a student or junior scholar to have a short opinion essay placed – with almost no time lag and a relatively light editorial hand — to be read by the world.

Our very long list of guest bloggers includes many names that have gone on to found their own international law blogs – some of which endured, some of which morphed into other entities, all of which enriched the conversation and expanded the community.  We always welcomed and supported the emergence of the new blogs because they brought even more voices to the discussion and added structures within this virtual college of international law scholars.  We also partnered with student-edited international law journals to host discussions of articles published in the “old media” as a way of linking slower paced student-edited scholarship to a timely online discussion with multiple commentators.   And it has been wonderful to see some of those student editors join us in the academy in the interim years.  Perhaps most surprisingly, our community grew to include government lawyers and diplomats on the front line of vitally important policy and legal questions.

Ten years is a long time in any “start up.”  But as Opinio Juris enters its mature years, my hope is that the OJ community of contributors, readers, commentators and guests continues to grow in a spirit of dialogue, collaboration and fellowship.

Can Ex-Pope Benedict be Sued for the Sex Abuse Cases?

by Peggy McGuinness

Andrew Sullivan raises the stakes on the legal effect of the Pope’s retirement decision. As the Pope emeritus, can he now be sued in connection with his role in the sex abuses cases against the Catholic Church?  I can already see a lot of problems such a suit would present, and I am writing on the go today, but what do OJ readers think?  Does an ex-Pope retain head-of-state immunity?

For a full take on the canon law implications of the resignation, see my colleague Mark Movsesian’s analysis at CLR Forum here.

IntLawGrrls Says Goodbye

by Peggy McGuinness

I was saddened to read the announcement last week from Diane Amann — the indefatigable founder, editor, and voice of IntLawGrrls — that IntLawGrrls is closing its blog.  IntLawGrrls has been an amazing source of historical, topical and, at times, deeply personal discussions about international law and the role of women in law and global governance.  It is and will remain an important documentary source of the views of the leading female (and some male) voices in international law and international organizations of our time.  Of course, in the blogosphere, nothing really disappears, and scholars, students and practitioners will benefit from the wonderful contributions of Diane, Jaya Ramji-Nogales, Beth Van Schaack and the many, many other contributors (over 300!) to IntLawGrrls for many years to come.  Diane has been a great friend of Opinio Juris and we have enjoyed many collaborations, guest posts and cross-posts over the years.  We will miss you IntLawGrrls, but look forward to hearing from the contributors in other fora in the future.

 

ICC Prosecutor Names Diane Amann, Leila Sadat, and Patricia Sellers to Advisory Positions

by Peggy McGuinness

ICC Prosecutor Fatou Bensouda has announced the appointment of three distinguished experts in international criminal law to serve as special advisers to the OTP.  Diane Amann of the Univ. of Georgia Law School has been named Special Adviser on Children in and affected by Armed Conflict. Leila Sadat of Washington University Law School will serve as Special Adviser on Crimes against Humanity. Patricia Viseur Sellers, who is currently at Oxford University, has been named Special Adviser on International Criminal Law Prosecution Strategies. Jaya Ramji-Nogales has the full details over at IntLawGrrls here and here. All three bring a wealth of experience to their new posts, both as practitioners and as scholars of international criminal law, and we look forward to hearing more about their work with the Prosecutor in the coming months. Congratulations to all!

Stephen Walt’s Advice to Would-be Foreign Policy Wonks: Study International Law!

by Peggy McGuinness

With new students entering college and grad school, Stephen Walt posts here very sound advice on the “top ten things would-be foreign policy wonks should study.”   At number five he lists international law, but not for any reason that is likely to warm the heart of an international lawyer:

5. International Law. You might think that a realist like me would dismiss international law completely, but I took a course in the subject as an undergraduate and have always been grateful that I did. Among other things, it reaffirmed my suspicion that international law is a pretty weak instrument, especially when dealing with great powers. Nonetheless, states and other international actors use international law all of the time, and they certainly invoke it to try advance their own particular interests. So it’s good to have some idea what international law is, how it works, and what it can and cannot do.

One of the challenges for IR students is that not all political science departments offer international law on a regular basis.  Crossing campus to take international law at the law school is a good alternative, but beware that we law professors teach (and evaluate) our students as law students, not theorists.  The grad students who have taken my classes have often struggled with case reading — a skill that is old hat to 2 and 3Ls.  But once you get over that, you might learn some things about the law that will help you critique even a hardened realists like Walt!

Was the Pussy Riot Sentence Excessive?

by Peggy McGuinness

News sites and blogs are full of condemnation for what appears to be an excessive sentence for the political protest/stunt pulled by the Russian punk band Pussy Riot in an Orthodox church earlier this year. (Even President Putin had hoped the group would not be judged “too harshly.”)  Over at the CLR Forum, my St. John’s colleague Mark Movsesian, who knows more than a little about comparative approaches to religious liberty and protection of religious sites, agrees that the sentence may have been a bit harsher than the behavior merited. But he has a different take on whether the punk rockers chose a wise method (trespass and desecration) to make their point about Russian politics and the role of the Orthodox Church:

A Russian court today convicted three members of Pussy Riot, a punk band that stormed the altar of the Christ the Saviour Cathedral in Moscow last winter to perform a “punk prayer” to protest Prime Minister Vladimir Putin, of criminal hooliganism and sentenced them to two years in prison. By Western standards, it’s a harsh and disproportionate sentence. By way of comparison, when members of a group called ACT-UP disrupted a Mass at New York’s St. Patrick’s Cathedral in 1989, they received only misdemeanor convictions and no jail time. Similarly, in June, a New York court convicted Occupy Wall Street protesters of trespassing on property owned by Trinity Church; again, only misdemeanor convictions and no jail time.

But Russia is different. Before we get all sanctimonious about how much better we are in the West, though, it’s worth reflecting on a couple of things. First, as I’ve written before, the Cathedral of Christ the Saviour has a sad history. The Communists dynamited the first version of the cathedral as part of an anti-Christian campaign in the 1930s, and Christians remain very sensitive about it. Notwithstanding the politicization and corruption in the Russian Orthodox Church, many believers genuinely feel pain at the desecration of the cathedral and what they see as anti-Christian animus. (Right on cue, in response to today’s sentencing, a topless female protester got a chain saw and cut down a cross in central Kiev that commemorated the victims of Communism. Way to win people over to your point of view!). Second, the media’s selective outrage is a little hard to take. Putin’s human-rights record has been poor for a long time now. Many less well known protesters remain in prison. Yet not so long ago, bien-pensant types like Goldie Hawn and Sharon Stone gave Putin a standing ovation when he crooned “Blueberry Hill” at a charity fundraiser. So what’s so different now? It’s hard to avoid the conclusion that, had the members of Pussy Riot not been so telegenic, and had their target not been the bad old Orthodox Church, the media would have paid much less attention.

It is certainly the case that the politics of today’s Orthodox Church leadership may have led some to overlook or minimize the protection international human rights law affords to religious practice and sites.  Mark’s written about the case before, and has more on the legacy of Soviet persecution of the Orthodox Church here.

Is American Foreign Policy Christian? A Conversation with Andrew Preston

by Peggy McGuinness

Over at the St. John’s Center for Law and Religion Forum, my colleague Mark Movsesian has posted a fascinating conversation with Professor Andrew Preston (Cambridge), author of Sword of the Spirit, Shield of the Faith.  Preston’s book examines the role faith has played in the conduct of U.S. foreign and military policy over the course of our history.  In this review of the book, Mark discusses the religious theme in American foreign policy that Preston has identified as “Christian republicanism,”

 which Preston defines as “a blend of Protestant theology and democratic politics.” This worldview prizes religious liberty as the foundation of democracy and views it as the most important of human rights. Indeed, Preston shows how the protection of religious liberty abroad has been a constant theme in American diplomacy. In the nineteenth century, the State Department advocated for missionaries, including Mormons, with foreign governments, even though the Department often found the missionaries a nuisance. In the twentieth century, Henry Kissinger’s attempts to get Congress to grant the Soviet Union most-favored-nation status failed largely because Kissinger underestimated American sympathy for the plight of Soviet Jews.

Preston explains how religion influences the U.S. approach to international human rights:

CLR Forum: Sword of the Spirit shows that religion has had a complex influence on American foreign policy. Christian convictions have justified both isolationism and internationalism, sometimes in the thought of the same person, e.g., John Foster Dulles. Do you see these same tensions today? On what issues do the contemporary religious right and religious left disagree? On what issues do they agree? 

Preston: I think the religious right and left, and Protestants, Catholics, Jews, and others all agree that America should promote and protect basic universal human rights around the world. What is remarkable is the extent to which religious isolationism has more or less disappeared. Most religious communities agree that the United States should engage with the world to promote its ideals; they just disagree on how this should be done. Religious liberals are wary of military intervention, religious conservatives less so.

CLR Forum: Protestant missionaries were the first international human rights campaigners in American history. Of course, today’s human rights discourse is almost entirely secular. And yet you note that, just like the nineteenth-century missionaries, today’s secular human rights campaigners sometimes fail to recognize that their ideology is not really “universal.” Could you please elaborate on this? 

Preston: We often assume that because some things seem so abhorrent, revulsion for them must be universal. Yet often these practices are not only tolerated but embraced by other cultures. When Western reformers—be they yesteryear’s missionaries or today’s human rights NGOs—enter a foreign country and demand the cessation of certain practices, they are automatically engaging in a kind of cultural imperialism by changing local custom in the name of a universal ideal, even though the locals have never heard of this universal ideal. A good analogy would be between the anti-foot binding crusades by American missionaries to China in the late 19th century and anti-female circumcision campaigns by human rights advocates today. I happen to agree with the morality of both these causes, and I happen to find foot-binding and female circumcision morally repugnant, and I think most Westerners would agree with me. But putting our views into practice means obliterating local cultures around the world. The end result might be a more just world, but we shouldn’t fool ourselves into thinking that we aren’t practicing a kind of cultural imperialism by obliterating the local in favor of the universal. The irony is that many human rights campaigners today try to distinguish themselves from the supposedly aggressive missionaries of the past, but to me they seem more alike than different.

The full conversation is well worth a read, especially Preston’s (surprising?) conclusion that Obama is quite similar to FDR in his religious convictions, outlook, and policy emphasis on religious freedom.

NY State Court Rejects DSK’s Immunity Claim

by Peggy McGuinness

As Julian predicted a few days ago, Judge Doug McKeon of the Bronx Supreme Court (that is the trial court level, New York state) today rejected former IMF Chief Dominique Strauss Kahn’s claim that he was entitled to immunity from a civil lawsuit brought by a former maid at the Sofitel Hotel in New York for the same acts that caused the Manhattan DA to at first charge DSK with sexual assault, charges that later were dismissed.  The full opinion is here.

On a quick read, it looks like the judge rejected DSK’s claim that he was entitled to diplomatic or “status” immunity on the grounds that: IMF officials do not fall within the status/absolute immunity protections of the Vienna Convention on Diplomatic Immunity; the U.S. is not a party to the Specialized Agencies Convention of 1947, which lays out privileges and immunities of officials of certain international organizations; (3) the Specialized Agencies treaty does not represent customary international law of IO immunities; (4) even if it the Specialized Agencies treaty was applicable, the scope of immunities for IMF officials is limited under an annex to that agreement by the Bretton Woods Agreement and IMF Articles, which specifically limit immunity only to official acts.  DSK is not entitled to this official acts/functional immunity (as Chimene Keitner argued earlier here), since he was not carrying out official duties during his visit to the Sofitel.

The judge did not shy from the customary international law question here, i.e.,DSK’s argument that the Specialized Agency agreement has ripened to a customary norm through which absolute immunity is extended to all international agency heads.  Citing the ICJ North Sea Continental Shelf cases, that CIL “must have equal force for all members of the international community, and cannot therefore be subject of any right of unilateral exclusion exercisable at will by any one of them in is own favour.”  The fact that a large number of states have signed onto the Specialized Agency treaty does not, the judge correctly concluded, overcome the objections of certain key states — including the U.S. and Switzerland — to its provisions.  In the end, he concludes, the International Organizations Immunity Act of 1945, “with its official acts immunity, not customary international law, controls the nature of immunity relative to Mr. Strauss-Kahn.”  DSK’s lawyers now have the option to appeal immediately.  Maybe, as Julian points out, the State Department will weigh in at the appeals stage to let us know what it thinks of the CIL status of the Specialized Agencies agreement.

Call for Proposals: International Law Weekend 2012

by Peggy McGuinness

I interrupt this wonderful discussion of Tai-Heng Cheng’s new book for this important announcement from Professor Ruth Wedgwood, President of the American Branch of the International Law Association (ABILA) regarding International Law Weekend 2012, which takes place Oct. 25-27.  As a participant at ILW 2011, I can attest that Professor Wedgwood has injected new life and significantly broadened the sponsorship of this annual NYC event.  Here’s her announcement:

After last year’s gathering of the flock (with over 1400 attendees and some 40 co-sponsors), we’re ready to do International Law Weekend again, in a collaboration between the International Law Association’s American Branch and the International Law Student’s Association.

Dates are October 25-27, 2012, to be held at the Association of the Bar of the City of New York and at Fordham Law School.

Some key language from the call for proposals — with due date of April 13, 2012:

“The unifying theme for this year’s meeting is to explore the mechanisms of change in international law. Panels may focus on key regions undergoing particularly dramatic change, for instance in the Middle East or China, and subject matter areas undergoing rapid change, such as tariffs and trade, human rights and humanitarian intervention, immigration, labor, public health, sustainable development and the environment.

This year, we plan to have a broad array of public international law topics, but will also have dedicated tracks of private international law topics in each program slot. Thus, we welcome suggestions of cutting-edge issues in the international aspects of corporate, tax, securities, and investment law, as well as international arbitration and other forms of international dispute resolution.

Equally welcome are topics in public international law and institutions, including issues regarding the United Nations, human rights, peacekeeping, humanitarian intervention, arms control, the development of regional and sub-regional organizations, etc. We also encourage suggestions of varied formats, such as debates, roundtables, lectures, and break-out groups, as well as the usual practice of panel presentations.”

The full call for proposals here.  Deadline to submit is April 13.

Global Convergence in Settlements (the Class Action Kind!)

by Peggy McGuinness

My brilliant St. John’s colleague Adam Zimmerman recently posted his thoughts on global trends in the area of mass settlements at Prawfsblawg.  He argues that American-style “bottom up” approaches to class actions has been converging with the “top down” approach prevalent in Europe and other jurisdictions.  Questions about how to compensate large groups of claimants (e.g., victims of the BP oil spill, or the global mortgage crisis) tend to blur distinctions between private and public law and raise complex questions of the role of courts in managing settlements:

The new model, today, involves many different players–class action lawyers, agencies, prosecutors, non-profits and other institutions–all vying to prosecute the same defendant, for the same conduct, and with power to compensate victims on a massive scale.  As I’ve noted for the past few weeks while blogging here at Prawfs, the United States increasingly relies on states attorneys general, federal prosecutors, agencies, and legislative compensation funds to compensate victims on a massive scale in ways that compete with class actions.  Institutional players, like large mutual funds and state retirement systems, relying on changes to United States securities laws in the 1990s, have also taken a larger leadership role in class action lawsuits.  In many cases, the end result is a large fund managed by the same private administrators who commonly oversee class action settlements.

And so it is outside the United States.  As the United Kingdom amends its class action procedures, it also has clarified and expanded the power of its Financial Service Authority (FSA) to seek consumer redress under the 2010 Financial Services Act.  As Sweden, Norway, and Denmark adopted class action procedures over the last decade, they also expanded the authority of state agencies, consumer associations and other non-governmental organizations to bring “representative actions” on behalf of victims. See, e.g., Swedish Group Proceedings Act § 5; Norwegian Dispute Act, Ch. 35, § 35-3(1)(b);  Robert Gaudet, Earth to Brussels: Lessons Learned from Swedish, Danish, Dutch and Norwegian Class Actions, White Paper (July 14, 2008).  Public authorities and NGOs continue to play an active role in large collective actions in common law systems, like Canada and Australia, and civil law systems, like Argentina.

The convergence of “top down” and “bottom up” approaches to settling large-scale problems — from the United States mortgage crisis, to British Petroleum, to the September 11 Litigation — raises a host of new questions for the future: Is it fair for prosecutors or agencies, whose primary aim has generally been associated with criminal punishment or regulation, to coordinate or compete with private attorneys who seek to compensate victims?  In those countries with federal systems, how should the federal government coordinate with states or provincial authorities?

But, in my view, convergence presents the greatest challenge for judges charged with overseeing different players, with different state, institutional or personal interests in a final resolution.  How should a judge coordinate or consolidate such cases, if at all?  What level of judicial review does a court apply to settlement brokered by other players in government, if any?  And, finally, in a world where courts must reconcile competing interests of victims, states, agencies and federal authorities, with different civil, regulatory and criminal enforcement obligations, what level of deference does the court owe to each decisionmaker in that settlement?

For those of us who track other areas of “convergence” in the law — e.g., human rights adjudications in domestic and international courts — it is useful to think about the ways in which adjudication of mass claims in the U.S. has influenced and is influenced by global trends.  And, of course, highlights the need in all cases for judges and other institutional players in settlements to think about convergence in substantive outcomes across national borders.  What to do, for example, when the other players are foreign prosecutors or administrative agencies? Or international dispute resolution bodies or regional agencies? (The Costa Concordia case is illustrative, with the possibility of payouts to victims through an Italian criminal proceeding with a class-action tort action continuing apace in U.S. court.)   Read the whole thing over at Prawfsblawg.