Author Archive for
Peggy McGuinness

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.

What if Nuclear Proliferation Reduces the Incidence of War?

by Peggy McGuinness

Political scientist James Fearon has posted (complete with graphs) the results of his own study of whether nuclear states are more or less likely to engage in war in the years following their acquisition of  nuclear weapons.  Here’s his bottom line:

[F]or each of the nine states that acquired nuclear capability at some time between 1945 and 2001, their yearly rate of militarized disputes in years when they didn’t have nukes, and the rate for years when they did. Note that for the US we have no data on dispute rate without nukes in this period since we got them in 1945; the rate for non-nuclear years for Russia/USSR is only for 1945-1948; the rate for South Africa (SAF) is for 1982-90; and the dispute data only goes to 2001.

China, France, India, Israel, Pakistan, and the UK all saw declines in their total militarized dispute involvement in the years after they got nuclear weapons. A number of these are big declines. USSR/Russia and South Africa have higher rates in their nuclear versus non-nuclear periods, though it should be kept in mind that for the USSR we only have four years in the sample with no nukes, just as the Cold War is starting.

Now it could be that getting nukes means that other states become more likely to initiate a dispute with you, rather than you becoming more aggressive.

* * *

What happens if you control for other stuff, like aggregate GDP (a proxy for total military capability) or secular change over time for all states, in a statistical model? I’ve done some of this, with a panel data approach using country and year fixed effects and clustering the errors by country. I get that states see on average about one half fewer disputes per year when they have nuclear weapons, an amount that is close to “statistically significant” at p = .10. For various reasons I wouldn’t put a lot of weight on this but it does suggest that the patterns seen above don’t go away, and in fact might be somewhat strengthened, when you control for aggregate capabilities and time trends.

Obviously the fact that the other members of the nuclear club generally didn’t get much more aggressive in their foreign policy behavior after they tested doesn’t mean that Iran won’t.

Interesting results, which tend to support what some IR scholars have been arguing for decades:  the presence of more deadly weapons raises the stakes of war, lowering the likelihood states will risk initiating conflict.  Others, of course, argue the destabilizing effects of proliferation. So what to do? Fearon hedges his bets a bit on the implications for the debate over preventive war against Iran:

To be clear, I’d strongly prefer that the Iranian regime not get the bomb, mainly because of the risks of further proliferation in the region and attendant risks of preventive war and loss of control of weapons. But attacking Iran seems likely to guarantee pursuit till acquisition, to more effectively license future attacks on Israel, and to greatly increase popular support for the current Iranian regime and a course of nuclear self-defense. (Netanyahu is reported in this NYT article to believe that an attack might actually “be welcomed by Iranian citizens.” If that’s his true view and not purely strategic talk, then sheesh, it looks delusional in light of the historical record on that one.) On the other side of the ledger are vague, weak, or barely developed arguments and claims about terrible things Iran would do if it got nukes.

We’ve heard these same concerns before, regarding Stalin’s USSR, Mao’s China, Kim Jong-il’s North Korea, and about the mortal mutual enemies of India and Pakistan. All these cases have been very scary, and it’s understandable that the prospect of a nuclear Iran is incredibly scary for Israelis. But so far, in none of these prior cases do the more extreme fears look historically justified.

My own question is what does or should this mean for lawyers? Do quantitative studies of this sort — backward-looking, somewhat limited by their own size, with heavy caveats and resulting in some incidents (outliers?) proving the hypothesis– justify shifts in efforts to penalize proliferation? Or are we headed for the same unresolvable arguments about international nuclear proliferation that we hear in U.S. domestic debates over gun control?

Live from “L” Event, Thursday, Feb. 23: U.S. Legal Advisers to Discuss The Arab Spring

by Peggy McGuinness

The ABA Section on International Law is co-sponsoring with ASIL and GW Law School the second “Live from ‘L'” event. “L,” for the uninitiated, is the U.S. State Department Office of the Legal Adviser. State Department Legal Adviser Harold Koh, along with several other lawyers from L, will be leading the discussion at GW Law School on “The Arab Spring and International Law.” GW Professor Sean Murphy will be moderating. You can attend in person or catch the discussion on a live webcast.  Students can register for the webcast free of charge.

Full information here.

Opinio Juris Seeks Assistant Editor

by Peggy McGuinness

Opinio Juris seeks candidates for the position of Assistant Editor. Responsibilities include monitoring international law developments, liaising with permanent contributors to organize special events, working with guest bloggers and partner publications on submission of posts and commentary, and other administrative duties. It is anticipated that the assistant editor will work ten to twenty hours a week. The ideal candidate will have a J.D. (or equivalent) with an international law background and be comfortable with blog and other social media technology. Opinio Juris will pay competitive market rates. The assistant editor also will have the opportunity for his/her own byline on posts that regularly update our readers on international law news developments. Please submit your inquiries to Peggy McGuinness (mcguinnm – at – stjohns – dot – edu) and Roger Alford (ralford – at – nd – dot – edu). Please include a CV and a paragraph describing why you are interested in the position. The deadline for submitting applications is January 31, 2012.

Milanovic on Extraterritorial Application of Human Rights Treaties: Judicial Interpretation and the Future of IHR Regulation

by Peggy McGuinness

Marko Milanovic’s impressive treatment of the rapidly evolving jurisprudence of extraterritoriality of human rights treaties is a must read for anyone teaching or thinking about the international human rights system.  What is most significant for me is Marko’s systematic effort to put doctrinal and policy meat on the bones of the argument that has been developing over the last decade or so that human rights obligations are “everywhere.”  I agree with both the sentiment and policy objectives of arguing that the universality of human rights means that they belong to all humans without regard to nationality or location within a particular territory.   And Marko is correct in positioning his comprehensive analysis of the cases addressing extraterritoriality within the “humanization” of all dimensions of international law, the process Ruti Teitel has described nicely as “humanity’s law.”

This is a book fundamentally about treaty interpretation, and it leaves aside the development of customary international law of human rights or of norm transformation more generally. It is a work of formal law — and in that regard is a really welcome shift toward the doctrinal in these debates.  The central question Marko seeks to address is the scope of application of specific treaty obligations undertaken by states to observe human rights  – and whether and how those obligations are triggered when a state engages in extraterritorial political, law enforcement, military or intelligence operations. Globalization has expanded the availability of extraterritorial acts from beyond the traditional notion of sovereigns acting through territories, colonies or militarily occupied areas, to include myriad cross-border law enforcement and regulatory cooperation arrangements of states of varying sizes and power.  The potential for conflicts of law is dizzying; the potential for human rights abuses is depressing.

Because we are talking about treaty interpretation, it bears focusing on the method of interpretation that Marko employ and also on the problem raised by relying on judicial (or in the case of the ICCPR quasi-judicial) interpretation, rather than looking to the treaty makers themselves to clarify and better articulate the current morass of jurisdictional clauses in the regional and international treaties.

Welcome to Guest Blogger Harlan Cohen

by Peggy McGuinness

Professor Harlan Cohen of the Univ. of Georgia Law School will be guest blogging with us for the next few weeks.  Among his other achievements prior to joining the UGA faculty in 2007, Harlan was a Furman Fellow at NYU Law School and on the staff at Foreign Affairs.  He teaches and writes in international law in the U.S, international legal theory and history, and international human rights law.  Harlan is co-chairing the 2012 ASIL Annual Meeting.  We are delighted to have him back at OJ for a longer guest-blogging stint.  Welcome Harlan!

Inaugural ASIL Research Forum: A New Tradition in International Law

by Peggy McGuinness

Congratulations to Kal Raustiala and Laura Dickinson, the masterminds who conceived and carried out the first Research Forum sponsored by the American Society of International Law.  The forum took place this past weekend in Los Angeles, together with the ASIL Mid-Year Meeting, which ASIL President David Caron has successfully moved out of Washington and out among broader constituencies of international practice here in the U.S.  This year added the inaugural Research Forum as a new tradition for the ASIL Mid-Year Meeting.  The forum included over 50 papers presented at 18 separate panels over two days.  I was fortunate to have the opportunity to present my own paper on congressional human rights mandates as a work-in-progress and was honored to sit on a panel with stellar colleagues and a sharp commentator, as well as to receive  insightful feedback from the participants.  The panels were well attended and packed with some very smart people from the U.S. academy and abroad — including some interdisciplinary mingling by IR scholars and historians.  You can find some of the draft papers and the full schedule here.  (Among the forthcoming books that were discussed that I am looking forward to reading:  Jeff Dunoff and Mark Pollack’s definitive volume on IL/IR scholarship and Ben Coates’ history of international legalism in U.S. diplomacy.)  I was particularly pleased to see fellow bloggers like Fiona de Londras — on this side of the pond! — and to meet new OJ readers.  Having the opportunity to hear keynotes from ICC Prosecutor Luis Moreno-Ocampo (in a candid mood, as Roger notes here) and ICJ Judge Joan Donoghue was icing on the cake.

Congratulations to Kal, Laura, the organizing and host committees, and all the staff at ASIL for a job well done!

CLR Forum: Welcome to the Blogosphere!

by Peggy McGuinness

CLR Forum is an impressive new entry to the law professor blogosphere has been launched by my St. John’s colleagues Mark Movsesian and Marc DeGirolami.  The CLR Forum is the official blog of the St.John’s Center for Law and Religion, a center which in just one year has put itself on the map hosting conferences and significant scholarly exchange in the area of religious legal theory, comparative law and religion, and religion and human rights.  Their coverage is global, and those of you interested in international and comparative perspectives on the intersection of law and religion will find lots to chew on here.  (See, for example, the proceedings of their “Laïcité in Comparative Perspective” symposium, and this discussion on “Christians in the Middle East: Contemporary Human Rights Perspectives.”)   The “Scholarship Round-up” is one-stop shopping for articles, essays, and books on law and religion and related topics. And the CLR Forum also includes useful posts by their research fellows on legal developments, such as this summary of the various anti-Shari’a laws around the USA.

Here’s Mark Movsesian’s [corrected!] recent response to a Ross Douthat op-ed on religion in the presidential election:

Ross Douthat  . . . argues that reporters are absolutely correct to ask candidates who “wear their religions on their sleeves” to explain how their beliefs would influence their policy decisions.  He cautions, though, that reporters should not assume that a candidate shares the most extreme views associated with his or her denomination, or apply a double standard.  If Barack Obama is not identical with Jeremiah Wright, Michele Bachman may not be identical with R.J. Rushdoony. She’ll have to explain.

I think Douthat is right on both counts, but what interests me is the use of the term “theocracy” in American public life. Traditionally, “theocracy” means government by clergy, the sort of thing that exists today in Shia Iran, and, I suppose, Vatican City.  But that is an extremely rare arrangement nowadays, and no one in America, including the overwhelming majority of conservative Evangelicals, would favor it.  I suppose “theocracy” could also mean a state in which religious law applies to civil matters. That arrangement is the norm in classical Islam, but classical Islamic states no longer exist (except in a place like Saudi Arabia), and it remains unclear whether contemporary Islamists will succeed in re-establishing them.  There is no large movement to govern America according to “Christian law” (what would that be, anyway?).  Rushdoony’s Recontructionists are absolutely a fringe movement, even among Evangelicals.

When critics use the term “theocracy” in America today, it seems to me that they mean “too much religion.” A “theocrat” is someone who makes religious arguments for political programs, uses religious imagery in political speeches, or allows religious beliefs to influence policy decisions.  By this definition, America is a theocracy, and always has been.  For example, American politicians on the left and the right have always used religious imagery to win support for their programs.  But if FDR was a theocrat, the word has no explanatory power….

[Click here for full post]

Welcome to the blogosphere!

Welcome Guest Blogger John Dehn

by Peggy McGuinness

Opinio Juris is pleased to welcome for an extended guest-blogging stint our friend and frequent contributor, John Dehn.  John holds the rank of Major in the U.S. Army and currently serves as Senior Fellow at the Center for the Rule of Law at the U.S. Military Academy at West Point.  John has taught international law, constitutional law and military law at West Point for several years, and is currently completing his JSD at Columbia Law School.  John brings a wealth of real-life experience to contemporary problems in international humanitarian law, problems which he also tackles in his scholarship.  He has written extensively on presidential war powers and the historical origins of the laws of war.  His SSRN page is here.  We welcome John for the next two weeks and look forward to a great conversation!

Johns Hopkins SAIS Seeks Visiting Professors in Nanjing, China

by Peggy McGuinness

Friend of Opinio Juris and current President of the American Branch of the International Law Association, Ruth Wedgwood, passes along the following announcement for teaching opportunities at the Nanjing campus of Johns Hopkins SAIS. They are looking for visitors in political science, economics, and international law:

The Johns Hopkins University School of Advanced International Studies (SAIS) invites applications for one-year renewable positions as a Visiting Professor at its international and area studies graduate institute jointly administered with Nanjing University in Nanjing, China with the appointment to begin in September 2012.

Applicants must have a Ph.D. or J.D., strong theoretical and methodological training, significant teaching experience, evidence of scholarly productivity, and a commitment to advancing cross-cultural dialogue and intellectual exchange in this unique, joint Sino-American residential graduate school. Applicants should be prepared to teach two courses each semester and advise masters students on writing theses. International faculty teach in English and primarily teach Chinese M.A. degree-level students preparing for careers in international affairs.

Johns Hopkins offers a competitive salary and benefits package and
is an Affirmative Action/Equal Opportunity Employer.

Applications are due October 15, 2011 and may be downloaded at http://nanjing.jhu.edu/faculty/index.htm For further information, contact Carolyn Townsley, Director HNC Washington Support Office,
at 202-663-5802 or ctownsley [at] jhu [dot] edu.

Transatlantic Academy Seeks Fellows for 2012-13

by Peggy McGuinness

The Transatlantic Academy is seeking young legal scholars to submit proposals for its 2012-2013 fellowship program. This looks like a great opportunity to partner with scholars in political science and economics in areas affecting the transatlantic relationship. Note next year’s theme is a broad view of the “Western Liberal Order”:

The Transatlantic Academy is seeking candidates to serve as resident Fellows for nine months for the fellowship year beginning September 2012. A joint project of the German Marshall Fund of the United States, ZEIT-Stiftung Ebelin und Gerd Bucerius, the Robert Bosch Stiftung and the Lynde and Harry Bradley Foundation, the Transatlantic Academy is located at the German Marshall Fund of the United States in Washington DC. The academy brings together scholars from Europe and North America to work on a single set of issues facing the transatlantic community. The academy is an interdisciplinary institution which is open to all social science disciplines, the humanities and the natural sciences. For more information on the Academy please visit our website a www.transatlanticacademy.org.  The academy welcomes applications from scholars working on the theme of “The Future of the Western Liberal Order.”

Consular Convention Implementing Legislation: Committee Hearing Webcast

by Peggy McGuinness

Though it produced hardly a ripple in the news (given all the other drama on Capitol Hill this week), Senator Leahy held a hearing yesterday on the legislation he has introduced to enforce the notification provisions of the Vienna Convention on Consular Relations (VCCR) at the state level.  The webcast of the hearing, aptly titled “Fulfilling our Treaty Obligations and Protecting Americans Abroad,” is here and the statements of the witnesses can be found here.  I’ll be posting some more commentary on this a bit later.