Author Archive for
Roger Alford

Kiobel Insta-Symposium: The Death of the ATS and the Rise of Transnational Tort Litigation

by Roger Alford

The ATS as we know it is dead. I predicted as much in October, but I was uncertain whether the Supreme Court would deliver a mortal blow and by what means it would deliver it. Now we know. The presumption against extraterritoriality, combined with a narrow interpretation of territoriality, means that the Filartiga human rights revolution is essentially over. Other posts this week will discuss whether the ATS has a future after Kiobel, but that is simply a search for a silver lining in what is, for plaintiffs, otherwise a dark and ominous thunderstorm that has destroyed an entire cottage industry.

What now? Obviously there is the Torture Victim Protection Act (TVPA), which may be sufficient for some causes of action. But per Mohamed v. Palestinian Authority, such causes of action are only available against natural persons. No corporate claims may be brought under the TVPA, and claims against corporate officers will struggle to overcome the Iqbal/Twombly pleading standards.

Others will argue that the ATS survives as long as there is some territorial nexus. This may mean that the old American Banana and Sisal Sales standard applied in the antitrust context is now applicable to human rights litigation. The search is on for some constituent act that occurred within the forum to satisfy the territorial nexus. But if territoriality is the new standard, why rely on international law instead of a panoply of more favorable domestic laws that capture the same conduct? And if Alito’s standard for territoriality is required, then the constituent territorial act must violate an international law norm. Good luck finding that conduct.

More promising than these options is transnational tort litigation. As I discuss in a forthcoming article (now more relevant than ever) and as Trey Childress discusses here and a recent Irvine Law Review symposium features here, the future of human rights in domestic courts is transnational tort litigation. Torture is assault and battery. Terrorism is wrongful death. Slavery is false imprisonment. In the quest to provide relief for victims of grave abuse, international human rights violations will now be reframed as transnational torts. Virtually every complaint pleading an ATS violation could allege a traditional domestic or foreign tort. Indeed, many complaints routinely add pendent state tort claims. In the Kiobel oral argument, both Kathleen Sullivan and Paul Hoffman concede the availability of state tort claims in lieu of ATS litigation.

What does this mean in practice? Now more than ever, human rights lawyers must become experts on choice of law and comparative tort law. It is a trend that already has been applied for over a decade in the terrorism context, but no one has been paying attention. Pursuant to the FSIA’s Flatow amendment, victims of international terrorism have secured billions (yes billions) of dollars in judgments against state sponsors of terrorism. They typically have done so by invoking choice of law principles to apply domestic tort laws to redress foreign terrorist attacks. In most cases the state tort law of the decedents’ domiciliary has controlled. Thus, when a suicide bomber kills Americans in Israel, or Lebanon, or Nigeria, it is Illinois, Louisiana, or Nebraska law that is applied to hold the perpetrators accountable.

Going forward, human rights lawyers must consider whether choice-of-law standards of the several states will authorize recourse to state or foreign tort laws. That means forum shopping with an eye toward choice of law. Is it better to sue in a “most significant relationship” jurisdiction (e.g., Texas, Florida), a “government interest” jurisdiction (e.g., District of Columbia, California), a lex fori jurisdiction (e.g., Michigan, Kentucky), a lex loci delicti jurisdiction (e.g., Virginia, Maryland), a “better law” jurisdiction (e.g., Minnesota, New Hampshire), or a jurisdiction that adopts an eclectic approach (e.g., New York, Pennsylvania). Who knows, for it will depend on the facts of each case. In some cases (i.e., terrorist attacks in Israel), foreign tort laws may be preferable to state tort laws. In other cases (i.e., torture and killings in Burma), domestic tort laws will be far preferable to foreign laws. If I were a law student who aspired to become a human rights lawyer, after today I would be enrolling in courses that teach conflict of laws and comparative torts.

What does a choice-of-law analysis for human rights abuses typically mean? More often than not, it means the application of foreign tort laws. That is to say, if one analyzes the major choice-of-law approaches and applies them to the facts of prominent human rights cases, courts will typically apply foreign tort laws to resolve claims alleging foreign conduct that causes foreign injuries. Under the specific facts of Kiobel, for example, a state court would apply Nigerian, English, or Dutch law under every choice-of-law approach.

Lest one think that transnational tort litigation is a poor second to ATS litigation, it is fairly clear that this option has numerous advantages over the alternatives. First, tort laws are almost universal. According to the International Commission of Jurists, “[i]n every jurisdiction, despite differences in terminology and approach, an actor may be held liable under the law of civil remedies if through negligent or intentional conduct it causes harm to someone else.” Assuming a fair and impartial adjudicator, remedies for harm to life and liberty are part of public and private laws throughout the civilized world. To the extent a foreign country does not have effective tort laws, then a choice of law public policy exception may result in the application of domestic tort laws.

Second, transnational torts have much lower thresholds than the standards applied under international law, allowing claims to be brought for intentional torts, simple negligence, strict products liability, or any other harmful or offensive conduct that constitutes a legal wrong. Human rights litigation is about grave public wrongs; transnational tort litigation is about redressing simple private wrongs. If the choice is between proving simple negligence instead of a paradigmatic international law violation with a territorial nexus, which would you prefer? For most plaintiffs, it’s not a hard choice.

Third, corporate accessorial liability for aiding and abetting human rights abuse is largely irrelevant when pursuing claims for transnational torts (a question left unresolved in Kiobel with respect to international law). Establishing that a corporate defendant aided and abetted government abuse with the requisite intent is likewise irrelevant. What matters is whether the defendant knew or should have known that its conduct would cause harm. If so, under most jurisdictions of the world a corporation is liable.

Fourth, pleading a violation of transnational torts in most state courts may avoid heightened federal pleading standards. The notice pleading standard applied in the majority of state courts is that a complaint should not be dismissed for failure to state a claim unless it “appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Pursuing state law tort claims in state courts is more likely to overcome a motion to dismiss than if the same claim were filed in federal court. Thus, plaintiffs struggling with the heightened federal pleading standard of Iqbal and Twombly may wish to pursue state tort law claims in state court, and file in the defendant’s home state to avoid removal to federal court on diversity grounds.

Fifth, forum non conveniens does not have the same force or favor in state courts as in federal courts. Moreover, after the $18 billion Chevron debacle in Ecuador and Chevron’s huge victory in Bowoto, it is unclear whether corporations will remain as enthusiastic about foreign court litigation or as skittish about domestic court litigation as they have in the past. Many defendants may surmise that it is better to fight in state court rather than gamble with the vagaries and corruption common in many foreign courts.

Sixth, under almost every choice-of-law approach, concerns for international comity and foreign sovereign interests are built into the analysis. For example, under the approach adopted by most states, the needs of the international system and the policies of other interested states are part and parcel of the choice-of-law determination. The sovereignty concerns expressed in Kiobel are built into the system, and often result in the application of foreign laws.

Seventh, state tort laws may apply extraterritorially. As noted, typically this is done on a case-by-case basis after the full implications for such application are taken into account. Thus, virtually every terrorism case pursuant to the Flatow amendment did just that, with the paramount government interest in combatting terrorism trumping foreign interests. Think back to the major foreign terrorism events of recent decades: Khobar Towers, Beirut barracks, USS Cole, Jerusalem bus bombings, African embassy bombings. All resulted in the application of domestic wrongful death tort laws based on the domicile of the decedent victim.

There’s more I could say, but you get the idea. Transnational tort litigation cannot replace the old version of ATS litigation. But after Kiobel, human rights lawyers have precious few alternatives. If there is a silver lining to Kiobel, it is that human rights lawyers will wake up to what transnational tort litigation has to offer.

Kiobel Insta-Symposium

by Roger Alford

We have invited several academic luminaries to post here at Opinio Juris over the next few days about the Supreme Court’s decision in Kiobel. We also are going to try something new and invite young academics to submit guests posts for possible publication. We can’t guarantee we will publish every post submitted, but we would love to broaden the discussion to include new voices. So if you want to write a guest post for Opinio Juris about Kiobel of approximately 500 to 1500 words, please do so in the next couple days and send it to Jessica Dorsey and An Hertogen (their emails are linked to the right). Our editorial team will review the posts and publish as many as we deem appropriate.

Cybersecurity at the WTO

by Roger Alford

Stewart Baker over at Volokh has a couple of interesting posts here and here on the new cybersecurity legislation that bars federal government purchases of IT equipment “produced, manufactured or assembled” by entities “owned, directed, or subsidized by the People’s Republic of China” unless the head of the purchasing agency consults with the FBI and determines that the purchase is “in the national interest of the United States. Here’s the key language:

Sec. 516. (a) None of the funds appropriated or otherwise made available under this Act may be used by the Departments of Commerce and Justice, the National Aeronautics and Space Administration, or the National Science Foundation to acquire an information technology system unless the head of the entity involved, in consultation with the Federal Bureau of Investigation or other appropriate Federal entity, has made an assessment of any associated risk of cyber-espionage or sabotage associated with the acquisition of such system, including any risk associated with such system being produced, manufactured or assembled by one or more entities that are owned, directed or subsidized by the People’s Republic of China.

(b) None of the funds appropriated or otherwise made available under this Act may be used to acquire an information technology system described in an assessment required by subsection (a) and produced, manufactured or assembled by one or more entities that are owned, directed or subsidized by the People’s Republic of China unless the head of the assessing entity described in subsection (a) determines, and reports that determination to the Committees on Appropriations of the House of Representatives and the Senate, that the acquisition of such system is in the national interest of the United States.

Baker raises the issue of whether such legislation would fall under the security exception in the WTO procurement agreement. Baker expressed concern that “the US Trade Representative’s office had negotiated a strikingly weak security exemption for the WTO procurement code…. The US can make a good case that attacks on the Commerce Department or the Justice Department information systems threaten national security, but it’s hard to argue that the IT systems those departments buy are themselves indispensable for national security.” But he ignores the critical point of the security exception, which is that the provision is self-judging. It doesn’t matter if, objectively speaking, the IT systems are indispensable for security. What matters is whether the United States considers such restrictions to be necessary for its essential security interests.

I have written extensively about the WTO security exception, and the bottom line is that despite numerous security crises that have come before the GATT/WTO–the Marshall Plan, the Falkland War, the Reagan Doctrine, the War in Yugoslavia, the secondary boycott against Cuba, the Arab League Boycott against Israel–there has never been a case actually adjudicating the security exception. The reason is that Member States’s recognize that national security questions are self-judging. Each Member State decides for itself whether action is necessary for its essential security interests.

Article XXI of GATT 1947 and Article XXIII of the Government Procurement Agreement both have such language. Baker focuses on the language in Article XXIII requiring that the procurement be “indispensable for national security or for national defence purposes.” But the operative language is that “[n]othing in this Agreement shall be construed to prevent any Party from taking any action … which it considers necessary for the protection of its essential security interests relating to … procurement indispensable for national security or for national defence purposes.” Unlike the general exceptions, the security exceptions in GATT 1947 and the Procurement Agreement are self-judging, analogous to the political question doctrine in U.S. constitutional law. If the United States makes a determination that Section 516 is necessary for its essential security interests, at least with respect to WTO compliance, that is the end of the matter.

Of course, it may seem counterintuitive that a self-judging exception could be embedded into the WTO agreements, a subject that I discuss in some detail in the article. Wouldn’t such a self-judging exception swallow the rule? For a variety of reasons, the answer is a resounding no. International trade law, viewed by many as the most intrusive branch of international law, has preserved one enclave of complete national sovereignty without undermining the efficacy of the WTO.

Google Rankings of the Most-Cited International Law Journals

by Roger Alford

For those of you who are trying to decide where to publish your article during this submission cycle, my friend and former colleague Rob Anderson has identified an interesting Google metric for measuring the most-cited international law journals. As he notes:

“The rankings are based on Jorge Hirsch’s “h-index,” which is an alternative to impact factor as a measure of a journal’s importance. The new Google rankings will be yet another entrant for ranking law reviews alongside Washington and Lee’s rankings.”

Here’s the Google Scholar h-index ranking of international law journals:

1. American Journal of International Law
2. Human Rights Quarterly
3. European Journal of International Law
4. American Journal of Comparative Law
5. Virginia Journal of International Law
6. European Law Journal
7. Chicago Journal of International Law
8. Journal of International Economic Law
9. Global Governance: A Review of Multilateralism and International Organizations
10. Common market law review
11. Journal of International Criminal Justice
12. International Journal of Constitutional Law
13. Fordham International Law Journal
14. International Journal of Transitional Justice
15. German Law Journal
16. Vanderbilt Journal of Transnational Law
17. Human Rights Law Review
18. Cornell International Law Journal
19. Michigan Journal of International Law
20. New York University Journal of International Law & Policy

You can also see how international law journals rank relative to other journals here.

It is worth emphasizing that not every international journal is in the Google Scholar database, so one should take these rankings with a grain of salt. For example, neither the Harvard International Law Journal nor the Yale Journal of International Law is in the Google Scholar database. But at least for those journals that are in the database, it gives one a good sense of the relative influence of each journal.

If you are trying to compare the rankings of each journal where your article has been accepted, you can type the name of the journal into the Google Scholar search engine to get the h-index for that journal. The higher the h-index score, the more cited the journal.

How Microfinance Transformed a Filipino Mountain Village

by Roger Alford

“Three years ago I could never have dreamed that we would be selling our tomatoes directly to the restaurants in Manila,” said Johnny Rola. Just a few years ago the poor farmers in this mountain village in northern Philippines had little hope. They would grow a few staple crops and sell it at the local farmers market. They were at the whim of the spot market prices set by the local wholesalers at the village below the mountain, and were struggling to survive.Sitio Mapita 3

Three years ago they were approached by a local microfinance institution, Gulf Bank in Lingayen, about the possibility of selling their produce directly to the Jollibee restaurant chain in Manila, a major food outlet in the Philippines. The major banks won’t lend to the local farmers who have no credit history, collateral, or crop insurance. But microfinance institutions are now filling the gap. In partnership with the National Livelihood Development Corporation, a Philippine government entity, many farmers today have access to microcredit. For someone like Johnny Rola, this development is a godsend. “I’ve been a farmer for thirty years,” said Rola, “and the past three years have been the best years of my life.”

In 2011 Rola joined with forty other local farmers to establish the Sitio Mapita High Value Crop Growers Association as a farming collective. Gulf Bank now loans Sitio Mapita money to buy seeds and fertilizer, and the farmers sell their produce directly to Jollibee restaurants. At harvest time, the farmers deliver the produce to the restaurant chain at a guaranteed price, and Jollibee repays the Gulf Bank microloan and deposits the profits to Sitio Mapita’s savings account.

Together with Catholic Relief Services, Gulf Bank is training the farmers of Sitio Mapita how to transform themselves from poor farmers to budding entrepreneurs. These indigenous farmers have no electricity and no running water. To communicate with the outside world they walk thirty minutes up the mountain to get cell phone reception. So I was amazed when I arrived at the village meeting hall to find spreadsheets with handwritten monthly commodities prices, balance sheets, revenue projections, and production targets posted on the walls on large brown sheets of paper. These farmers have a business plan and big dreams.Mapita 4

“At sunset we used to go to sleep,” said Margarita Rola. “Now we are planning for the future.” They plan to use their profits to improve their lives in ways we take for granted. They dream of electricity, better irrigation, refrigerated trucks, even a high school for their children, who today must choose between becoming farmers after sixth grade or, for the lucky ones, boarding at a high school in a nearby town.

I’m in the Philippines as part of Notre Dame’s award-winning business school class entitled, Business on the Front Lines. The class has around thirty business, law, and peace studies students who focus for a semester on four specific case studies of social entrepreneurship. After weeks of study, the students travel during spring break to the countries and do field analysis. I’m here with six students, and there are three other teams right now in Nicaragua, Rwanda, and Sierra Leone. You can read about their exploits here. We work with Catholic Relief Services, which is one of the largest relief agencies in the world. The goal is not simply education. We are conducting due diligence to recommend how millions in venture philanthropy can best be utilized.Sitio Mapita 2

As we toured the farms, one could feel the pride these farmers felt at what they had accomplished in just three years. Graduate students from the United States were coming to study what these poor farmers were doing to see if their business model might be replicated elsewhere.

The success of farming collectives like Sitio Mapita has garnered attention around the Philippines. Other farmers want in on the action, relishing the idea of microfinance providing a way to reach institutional buyers. Major corporations are taking notice too. Next month Sitio Mapita will contract with Rocky Mountain Coffee to begin growing coffee for sale throughout the Philippines. Coffee has a four-year growing cycle and the start-up costs are large by their standards, so it is a major development in their lives.

The proudest moment of Johnny Rola’s life was when he went to Manila last year and spoke to an audience of one hundred bankers, farmers, and politicians. “I even shook hands with a senator,” he beamed. When I asked him if he went to a Jollibee restaurant in Manila to try one of the hamburgers with his tomatoes in it, he said with a big grin, “Yes! It was quite good.”

Are Human Rights Treaties the Inspiration for National Constitutions?

by Roger Alford

“It is widely thought that the rapid growth of the international human rights regime has profoundly influenced the practice of written constitutionalism at the national level,” writes David Law and Mila Versteeg in their brilliant article recently published in the NYU Law Review.

But is there empirical support for such an assumption? Much to my surprise, their answer is a resounding no. After an exhaustive empirical analysis comparing national constitutions with international and regional human rights treaties, they conclude that “our analysis uncovers no clear evidence that transnational human rights instruments are shaping global or even regional trends in constitution writing.” With regard to the canonical international human rights instruments (UDHR, ICCPR, ICESCR), they find that:

The results of the regressions offer little or no support for … for the notion that any of the three leading international human rights instruments have been widely emulated by constitution makers. Instead, they suggest only that different types of countries tend to exhibit constitutional similarity to different treaties.

Here’s their longitudinal analysis of the relationship between those instruments and national constitutions.

Treaties Constitutions

From this they make a curious argument about the ICCPR:

From the position of the vertical line [at year 1966], it is clear that the growing similarity of the average constitution to the ICCPR predates the introduction of the ICCPR: The average constitution had already started to resemble the ICCPR before the ICCPR came into existence. Obviously, the ICCPR could not have been shaping global constitutionalism before it even existed. A more logical interpretation of this chronology is, instead, that the ICCPR merely happened to reflect or express global constitutional trends that were already underway.

They make a similar argument with respect to the ICESCR:

Whether a country has actually ratified the ICESCR … is not a meaningful predictor of whether its constitution resembles the ICESCR…. [T]here was no statistically significant increase in constitutional similarity to the ICESCR following its adoption in 1966, which casts doubt upon the notion that it has served as a model for constitution writers.

Based on my knowledge of the drafting history of both of these treaties, I’m not convinced by their conclusions. Can one say with confidence that the ICCPR and the ICESCR obviously did not shape global constitutionalism prior to 1966? It is well known that both treaties had incredibly long drafting histories, with U.N. General Assembly directing the drafting of the treaties in 1952 and the drafting committee completing its work in 1954. Cold War politics delayed the ultimate adoption of the ICCPR and the ICESCR treaties until 1966, but that doesn’t mean that the draft texts were not influencing global constitutionalism prior to that date.

As newly-independent nations were looking for inspiration in the drafting of their new constitutions, it is quite plausible that countries within the Western European sphere of influence would be inspired by the negative rights expressed in the draft ICCPR, just as countries within the Soviet orbit would be inspired by the economic and social rights expressed in the draft ICESCR. The politics of the day may have delayed the adoption of these treaties, but their influence could easily have predated their adoption. So the sharp uptick prior to 1966 in the correlation for both the ICCPR and the ICESCR makes perfect sense to me. It is likely the result of newly-independent nations from both camps drawing inspiration from the ICCPR and ICESCR draft human rights treaties.

Of course, this point is one small aspect of a monumentally useful article. I highly recommend it to you. It offers a fascinating analysis of the sources of inspiration for global constitutionalism.

A Broken Windows Theory of International Corruption

by Roger Alford

I have just posted on SSRN my latest article published in the Ohio State Law Journal. Through the lens of the broken windows theory of community policing, the Article examines the connection between corruption and other social goods in society, as well as the relationship between U.S. enforcement efforts and those of other OECD countries.

It is incredible how much empirical research has been done on international corruption in other disciplines, and yet the legal community largely ignores this data. It’s also incredible how rare it is for social science empiricists to make policy arguments that flow from their research. The Article tries to bring these two worlds together by digesting the mountain of empirical evidence regarding international corruption, and then making specific policy recommendations. Here’s the abstract:

The Article re-conceptualizes corruption through the lens of the broken windows theory of community policing, focusing on the root consequences of corruption as well as its secondary effects.

Part II of the Article posits that corruption is a broken window that signals the breakdown of community controls necessary for the maintenance of social order. A government that abuses its power for private gain is a government that cannot be trusted to pursue the general welfare. Empirical evidence finds ample support for this claim, confirming that corruption negatively alters the public’s perception of government and society.

Part III of the Article illuminates how corruption is associated with other matters of grave public concern, such that the struggle against corruption is the struggle to promote a variety of public benefits. Corruption is inextricably linked to many other public concerns. Empirical evidence finds a positive relationship between a country’s corruption ranking and its ranking on other major indices measuring public welfare. Communities that are perceived to take corruption seriously score well on their commitment to other social goods, such as global competitiveness and productivity, increased standards of living, enhanced children’s health, protection of civil liberties, and the safeguarding of political freedom. These corruption correlations provide an evocative snapshot of the connection between corruption and social order.

Part IV of the Article analyzes the legal efforts to combat corruption, with particular focus on the utility of cooperative efforts to regulate and prosecute corruption. Empirical studies show that coordination strategies between OECD enforcement authorities alter the behavior of corporations, foreign officials requesting bribes, and government officials prosecuting the payment of bribes.

Part V of the Article discusses how these findings have important implications when considered from the perspective of a “broken windows” theory of international corruption. How would a broken windows theory of corruption alter the legal landscape of anti-bribery laws? I offer three suggestions. First, a broken windows approach would redefine and reframe corruption as distrust and disorder. Conceptualizing corruption as a matter of public trust heightens its importance. Public trust is essential to the rule of law. Second, a broken windows approach would augment the battle against corruption with a greater emphasis on petty bribery. Thus far the legal enforcement strategies have focused on high-profile, large-scale corruption. A broken windows strategy would not ignore those cases, but would also focus on low-profile, petty corruption that alters quality of life and undermines public trust. Third, a broken windows theory would place greater emphasis on a partnership between the public and private sectors to combat corruption. This approach would mean that corruption should be considered in the local context, with a focus on its destabilizing effects in specific countries and communities.

Why is Academic Writing So Bad?

by Roger Alford

Scholarship

There is an interesting discussion by Stephen Walt over at Foreign Policy on why academic writing is so bad. It is a subject academics are reluctant to discuss, yet there is no doubt that much of what passes as legal scholarship is dull, disagreeable, undigestable. Here’s Walt’s take:

The first problem is that many academics (and especially younger ones) tend to confuse incomprehensibility with profundity. If they write long and ponderous sentences and throw in lots of jargon, they assume that readers will be dazzled by their erudition and more likely to accept whatever it is they are saying uncritically. Moreover, jargon is a way for professional academics to remind ordinary people that they are part of a guild with specialized knowledge that outsiders lack, and younger scholars often fear that if they don’t sound like a professional scholar, then readers won’t believe what they are saying no matter how solid their arguments and evidence are.

The second problem is the fear of being wrong. If your prose is clear and your arguments are easy to follow, then readers can figure out what you are saying and they can hold you to account. If you are making forecasts (or if the theory you are advancing has implications for the future), then you will look bad if your predictions are clearly stated and then fail. If your argument has obvious testable implications, others can run the tests and see how well your claims stand up.

But if your prose is muddy and obscure or your arguments are hedged in every conceivable direction, then readers may not be able to figure out what you’re really saying and you can always dodge criticism by claiming to have been misunderstood. (Of course, sometimes critics do deliberately misrepresent a scholarly argument, but that’s another matter). Bad writing thus becomes a form of academic camouflage designed to shield the author from criticism.

My own sense is that legal scholarship is better than most academic writing because we are trained at law school and in law firms to be convincing and comprehensible. Once in the academy, we are further trained to reach two audiences: our academic peers and our student gatekeepers who hold the keys to the kingdom. Obscurity may be appropriate for one audience, but not the other. Our law student underlords save us from the trap of most other academics.

So why does legal scholarship still miss the mark?

First, legal scholarship is formulaic. There is an order and predictability to legal writing that stifles creativity. You know the recipe: (1) Introduction with obligatory road map; (2) Background section for the neophyte; (3) Excruciating description of the problem; (4) Unrealistic normative solution; (5) Standard conclusion. This formula rules the day. Add ingredients, mix hastily, half-bake to 25,000 words, and then publish.

Second, legal scholarship is prosaic. Many legal scholars are more interested in arguments than words. We love the research, but not the writing. We are “ideasmiths” rather than wordsmiths. I recently read a draft article on financial regulation that had profoundly good ideas expressed in profoundly bad ways. At some point in the writing process, an entire draft should be devoted to simple wordsmithing. Every word, sentence, and paragraph should matter. When the manuscript is nearing completion we should be spending days wordsmithing, polishing rough edges, adding color and texture, altering the draft so that it is elegant and interesting.

Third, legal scholarship has a footnote fetish. Years of experience responding to law review editors has made original thought suspect. Today articles often have 500, even 600 footnotes. Student editors routinely demand supporting citations for original thought to the point of farce. The fruit of creativity struggles to survive with such aggressive pruning.

Fourth, legal scholarship is technical. Let’s face it, many of the subjects we write about are arid and lifeless. The devil is in the details, and those details are devilishly difficult to disseminate. It is not easy to make Rule 26(b) sound snappy. Maritime delimitation is not exactly the pearl of great worth. Okay, maybe it is, but writing about it is not. The trick is to make a technical subject sound as interesting as possible. Great legal writing often is about taking dry and tedious ingredients and transforming them into agreeable fare. It will not keep your teenager from rolling her eyes when you explain what you did at work today, but it should keep your colleagues and students from giving up in frustration.

Cruel Window No More

by Roger Alford

With the publication by the Journal of Legal Education’s recent “Fiction Issue,” and the London Review of International Law announcing that they will include poetry with the goal of expanding and enriching the international legal conversation, I thought this poem was particularly timely. It is written by an anonymous friend for those who have suffered from human trafficking and for those who advocate on their behalf.

Cruel Window No More

Colored panes of glass, once collected,
Good and evil, gently refracted.

Purveyor of harm enters in,
muffled alarm, tragic din.

The deed is done, young soul plucked,
Life shattered, filthy muck.

Stained glass, broken body,
Nature’s law suspended.

Shards of life, colors bleed,
Love’s dance upended.

Corrupted inquisitor, shadow valley,
Rotten misery.

Timely advocate, verdant pasture,
Quenching remedy.

Shutters open, warm air,
Cleansing counsel, gentle care.

Broken glass reframed,
Child reborn, strengthened claim.

Colored pane restored,
Cruel window no more.

The Role of Intellectuals in Society

by Roger Alford

In doing research on Aung San Suu Kyi, I recently came across this wonderful discussion from 2005 on the role of the intellectual in society. It comes in the form of a dialogue with Alan Clements in his book, The Voice of Hope: Aung San Suu Kyi: Conversations with Alan Clements.

Clements: I brought with me a quote from Václav Havel in which he explains the role of the intellectual within society. When I first read it, I instantly thought of you. He writes, “The intellectual should constantly disturb, should bear witness to the misery of the world, should be provocative by being independent, should rebel against all hidden and open pressures and manipulations, should be the chief doubter of systems … and for this reason, an intellectual cannot fit into any role that might be assigned to him … and essentially doesn’t belong anywhere: he stands out as an irritant wherever he is.”

Suu Kyi: I would agree with everything that Václav Havel says. I would say that basically, in order to become an intellectual you’ve got to have a questioning mind…. Intellectuals are very important in any society. Because they are the ones who, like in the quotation, are provoking people, opening them to new ideas, pushing them along to new heights. This is one of the tragedies of Burma–the intellectual is not allowed any place within the society. And the real intellectual, of the kind described by Václav Havel, would not be allowed to survive in Burma.

Clements: Why?

Suu Kyi: He would either have to repress his instincts as an intellectual, or he would have to leave Burma, or he would have to go and sit in prison. He’s got to choose between those three.

Clements: So by function, a totalitarian regime attempts to create a mindless, featureless society by crushing the intellectual?

Suu Kyi: The intellectual with his questioning mind threatens the totalitarian mind which expects orders to be carried out and decrees to be accepted without question. There will always be clashes between the authoritarian mind and the questioning mind. They just cannot go together.

I think it is easy in a free society to forget how important an intellectual is to the welfare of a country. The right to question and doubt is taken for granted. Freedom of thought and expression are a given. Skepticism of the system is encouraged. Intellectuals are often discouraged because they too are taken for granted. “I’m just an intellectual,” we sometimes think.

As you go about your work today give thanks that you are an intellectual in a free society. As you watch the Commander-in-Chief tonight propose his agenda for his Second Term, marvel not with what he says, but that he is accountable for every word and deed to the intellectuals–the Doubters-in-Chief.

The same cannot be said of much of the world. Over one-half of the world’s population live in closed societies. Burma, of course, is rising. It no longer is among the worst of the worst. That dishonor goes to the forlorn citizens of these fifteen Asian and African authoritarian regimes: Belarus, Chad, China, Cuba, Eritrea, Equatorial Guinea, Laos, North Korea, Saudi Arabia, Somalia, South Ossetia, Sudan, Syria, Turkmenistan, and Uzbekistan.

In a free society intellectuals are encouraged to speak their minds with reason and integrity. Our colleagues living under authoritarian regimes must speak with equal measures of insight and courage.

Ancillary Discovery in Aid of Foreign or International Proceedings

by Roger Alford

I have posted on SSRN my latest article, “Ancillary Discovery to Prove Denial of Justice” just published in the Virginia Journal of International Law. It analyzes Section 1782 discovery proceedings in the context of BIT arbitration and argues that there is now uniform agreement among federal courts that investment arbitration panels are “international tribunals” within the meaning of Section 1782.

But the article has salience outside that context, and could be applied to many foreign or international proceedings. One plaintiff involved in a French proceeding, for example, served a discovery subpoena on a French party while he was visiting a museum on vacation in the United States, thereby incorporating American discovery into the French proceeding. A German defendant in a German proceeding issued a Section 1782 discovery subpoena on the American plaintiff, and thereby incorporated non-reciprocal American-style discovery into the German proceeding.

The article presents several conclusions regarding the growing use of ancillary discovery in international adjudication, particularly in the context of investment arbitration claims against respondent states.

First, ancillary discovery under Section 1782 reflects a congressional intent to allow interested parties to avail themselves of liberal discovery under the Federal Rules of Civil Procedure, resulting in the indirect incorporation of American-style discovery into foreign or international proceedings. If this trend continues, American discovery will become an important ancillary mechanism to gather evidence, in addition to and perhaps in lieu of the traditional evidence gathering procedures utilized by foreign or international tribunals. For example, I outline in the article how all the important fraud information Chevron received against Ecuador came from Section 1782 proceedings, not evidence gathering pursuant to foreign or international proceedings.

Second, liberal discovery pursuant to Section 1782 promotes evidentiary forum shopping, encouraging parties to pursue ancillary discovery in the United States rather than rely on the discovery procedures available in foreign or international proceedings. If parties can rely on the liberal discovery standard of FRCP Rule 26, requiring only that the requested information is “reasonably calculated to lead to the discovery of admissible evidence,” then why opt for narrow discovery approaches of foreign or international tribunals?

Third, the use of Section 1782 in aid of international tribunals reflects sensitivity to the comity of courts, not the comity of nations, such that federal courts determining whether to order ancillary discovery should consider the international tribunal’s receptivity to such assistance, but not the attitude of the foreign sovereign responding to allegations of international law violations. International tribunals thus far have been extremely passive in their role in this regard, whereas respondent state’s have protested vigorously, but to no avail.

Fourth, in the specific context of investment arbitration, providing foreign investors with a remedy for denial of justice, together with a robust means to prove such a violation, alters the host State’s incentives and requires it to play a two-level game that reconciles international obligations with domestic political preferences. Robust evidence gathering at the international level increases the likelihood that respondent states will be liable for international law violations.

Finally, the article outlines the possible abuse of ancillary discovery under Section 1782. Chevron’s recent subpoena of Kevin Jon Heller’s email logs is an example. Email providers such as Google, Yahoo, and Microsoft are becoming obvious targets for discovery by parties seeking access to email account information of individuals involved in domestic, foreign, or international proceedings. Section 1782 is particularly vulnerable to abuse where one party is situated (or transiently found) in the United States, while all the relevant information of the other party is located abroad.

“I Have Big Heels to Fill”

by Roger Alford

Secretary of State John Kerry made a few opening remarks (video here) yesterday at the State Department that are worth quoting.

“So here’s the big question before the country and the world and the State Department after the last eight years: Can a man actually run the State Department? (Laughter) I don’t know. (Applause) As the saying goes, I have big heels to fill. (Laughter)”

He then presents a poignant historical account of his childhood memories as a diplomat’s son in Berlin:

“I was back in Boston two weeks ago and I was rummaging through some old stuff and I found the first evidence of my connection to this great diplomatic enterprise – my first diplomatic passport. (Applause.) There it is. Number 2927 – there weren’t a lot of people then. (Laughter.) And if you open it up, there’s a picture of a little 11-year-old John Kerry and no, you will not get to see it. (Laughter.) And then in the description it says, “Height: 4-foot-3.” (Laughter.) “Hair: Brown.” So as you can see, the only thing that’s changed is the height. (Laughter.)

And the first stamp in it, the first arrival, was 1954 in Le Havre. And back then the State Department, we went over – we spent six days at sea on the S.S. America and the State Department and the United States Government sent us over, the entire family, first class. Don’t get any ideas. (Laughter.) Anyway, I – we went to Berlin, and this was not too long after the war, and I used to ride my bicycle around Berlin, it was my pastime, my passion, and rode everywhere, the Grunewald, around the lakes, up and down the Kurfurstendamm, the church where the steeple burned down, past the Reichstag, burned out, past Brandenburg Gate, past Hitler’s tomb with these amazing, huge concrete slabs blown up. And I just roamed around. It was stunning how little control there was.”

And one day – in my sense of 12-year-old adventure, I think it was then – I used this very passport to pass through into the East Sector, the Russian sector, and I bicycled around, and I’ll tell you, as a 12-year-old kid, I really did notice the starkness, the desolation. In fact, I was thinking about it the other day. If the tabloids today knew I had done that, I can see the headlines that say, “Kerry’s Early Communist Connections,” something like that. (Laughter.) That’s the world we live in, folks.

But I would reassure them by saying I really noticed the difference between the east and west. There were very few people. They were dressed in dark clothing. They kind of held their heads down. I noticed all this. There was no joy in those streets. And when I came back, I felt this remarkable sense of relief and a great lesson about the virtue of freedom and the virtue of the principles and ideals that we live by and that drive us.”

He then makes the case for the virtues of working for the State Department:

“We get to do great things here. This is a remarkable place. And I’m here today to ask you, on behalf of the country, I need your help. President Obama needs your help, to help us to do everything we can to strengthen our nation and to carry those ideals out into the world.

Here, we can do the best of things that you can do in government. That’s what excites me. We get to try to make our nation safer. We get to try to make peace in the world, a world where there is far too much conflict and far too much killing. There are alternatives. We get to lift people out of poverty. We get to try to cure disease. We get to try to empower people with human rights. We get to speak to those who have no voice. We get to talk about empowering people through our ideals, and through those ideals hopefully they can change their lives. That’s what’s happening in the world today. We get to live the ideals of our nation and in doing so I think we can make our country stronger and we can actually make the world more peaceful…. That’s as good as it gets. And I’m proud to be part of it with you. So now let’s get to work.”

Not a bad start.