Author Archive for
Roger Alford

The Growth of International Law Scholarship

by Roger Alford

There are a variety of ways one can measure the growing importance of international law scholarship. One metric that I have never seen discussed is simple: how often has the term “international law” been used in academic scholarship? Using Westlaw’s JLR library I calculated how often “international law” was referenced from 1987 to 2011. The results are impressive. Twenty-five years ago there were only 706 articles that included that term, compared with 4,300 today. That’s an annual growth rate of 7.5 percent. At that pace, in ten years there will be over 8,800 references to international law, and over 26,000 references in a quarter century.

Growth of International Law

It’s also noteworthy that today’s academic scholarship references “international law” more often than other core terms. Based on a Westlaw JLR search for 2011, “international law” (4,300 references) appears more often than “criminal law” (3,918 references), “intellectual property” (3,233 references), “constitutional law” (3,198 references), “torts” (2,709 references), and “professional responsibility” (1,092 references).

I knew that international law scholarship was popular, but I would not have guessed it has shown such sustained growth across the decades.

UPDATE: Further to Stuart Ford’s comments on January 9, I thought I would post the graph he is discussing. Very interesting as a point of comparison.

Google NGram2

Kiobel Oral Argument: Why the ATS as We Know it is in Jeopardy

by Roger Alford

My initial impression of the Kiobel oral argument is that the Supreme Court is going to do its best to do an historical analysis of the ATS and use that history to find ways to limit its scope. It could do so by holding that the ATS does not apply extraterritorially, or that it does not apply unless there is some U.S. nexus, or that it does not apply to corporations, or that it does not apply without exhausting local remedies, or that it does not apply to certain types of conduct (such as aiding and abetting). But one way or the other, I predict that the ATS as it currently is applied by lower courts will be severely limited.

I say that by reading the tea leaves of the Justices’ votes that are up for grabs. Justice Kennedy asked, among other things, about whether there was a U.S. nexus in this case (page 4), about risks of reciprocal claims brought against U.S. corporations in foreign courts (page 5), about the risk of ATS litigation causing complications with foreign governments (page 10), and about the scope of the presumption against extraterritoriality (p. 37). Several Justices, including Chief Justice Roberts, asked about the possibility of vindicating one’s rights in another forum that has a closer connection to the events or the parties, including the defendant’s domiciliary forum (the United Kingdom or the Netherlands) or the place of injury (Nigeria). None of the swing Justices seemed interested in the concept of universal jurisdiction, except to preserve the Sosa paradigm that embraced piracy on the high seas as an actionable international law violation.

The good news for the plaintiffs is that Paul Hoffman did an exceptional job of trying to make the ATS sound unexceptional. One of his best arguments was that courts have all the tools they need to address the concerns about friction with foreign nations, including the political question doctrine, the act of state doctrine, international comity, forum non conveniens, and personal jurisdiction. In other words, these concerns about tensions with foreign nations are legitimate, but courts already have developed doctrines sensitive to those concerns. When pressed, he was even willing to make more concessions, such as the possible need to exhaust local remedies. The bad news is that the swing Justices did not appear to be buying the argument that the arrows currently in the quivers of the courts are enough to limit the reach of the ATS.

As for extraterritoriality, Hoffmann’s key argument was that the presumption against extraterritoriality is overcome where the purpose of the statute requires its extraterritorial application. The presumption, he argued, “would undermine the very purposes of the statute” which is “the best evidence that we have about what it meant in the era” (page 52). He cogently cited the Bradford opinion as an historical example of what the drafters were thinking in this regard.

To be sure, there is ample Supreme Court case law to support an argument that sometimes the purpose of a statute requires its extraterritorial application. See United States v. Bowman, Blackmer v. United States, United States v. Flores, Cook v. Tait, Browder v. United States. One way to articulate this is to say that the clear intent of Congress is expressed in drafting a statute that necessarily requires extraterritorial application. Whether or not the swing Justices will interpret the ATS in this fashion is anyone’s guess.

Kathleen Sullivan’s key argument was that the presumption against extraterritoriality required clear congressional intent, which she argued was lacking in this case. She then fumbled by trying to argue that the Court’s recognition of piracy in Sosa did not undercut this argument. She should have stuck with her argument about the purpose of the presumption against extraterritoriality—to avoid encroachment on the sovereign prerogatives of other nations to regulate conduct in their territory—and conceded the point about piracy on the high seas as falling within the scope of the ATS. Instead, she argued that pirate ships are mini-foreign countries and tried to argue that that the presumption applied even to pirate ships. It was not a fatal mistake, but it was painful to read.

Sullivan also struggled with Justice Kagan’s creative reverse Marbois question, (page 30-32) which aptly addresses the possibility that foreign tensions can arise from an American’s misconduct against a foreign national on foreign soil, just as much as an American’s misconduct on domestic soil. Sullivan argued that other remedies were available, such as extradition or state law torts for assault. That may be true, but that is also true for an American’s misconduct on domestic soil. Her argument didn’t address the critical question of why Congress believed the ATS was necessary in the first place, and why it should only apply to domestic misconduct by Americans. If concern about foreign friction is what is driving the ATS, she should have taken a page from Hoffman and conceded points that were not essential to her case, such as the possibility that the ATS applied to foreign conduct by an American non-corporate defendant. (That seemed to be Solicitor General Verrilli’s position: that the ATS should only apply where there is a clear U.S. nexus, such as misconduct by an American national on foreign soil or misconduct by a foreign national on U.S. soil.)

So I predict that the ATS as we know it will be curtailed. I don’t know exactly how it will be curtailed, but based on the oral argument today I predict that the future of foreign plaintiffs using the ATS to sue foreign corporations for conduct on foreign soil is in serious jeopardy.

New Study Analyzes the Best Law Schools and Top Faculty for Comparative and International Law

by Roger Alford

James Phillips and John Yoo have just published a thoughtful analysis critiquing Brian Leiter’s approach to ranking faculty relevance. They suggest that what we should be looking at is all-stars, not superstars. If you measure a school based on their all-star line-up rather than their superstars, the results are dramatically different. Here’s how they put it:

Faculty can be thought of in two ways—all-stars and super-stars. All-stars are one of the best in their area, and a well-rounded faculty, like a well-rounded baseball team, has as many all-stars in as many positions as possible. Just like baseball all-stars, professors need to be evaluated against their peers in their area (or position), and not against professors in other areas (to compare the homerun totals of a second baseman with a first baseman would not be fair as the latter are expected to hit more homeruns while the former are expected to have a higher batting average and steal more bases). Super-stars are the elite, beyond just all-star status, a Roy Halladay for the Philadelphia Phillies or Tom Brady for the New England Patriots. Like a baseball team, they may be bunched in just one or two positions—often the hottest or most attractive, such as constitutional law or law and economics. There is probably a higher degree of correlation between winning and the number of all-stars than the number of super-stars, though both are nice to have…. This study argues that the all-star rankings is a more solid method of ranking faculties than the super-star method, average citations counts (either Leiter or this paper’s version), or the U.S. News’s academic ranking based on peer perception because it measures faculties more broadly, has less bias regarding attributes such as faculty age or size (Leiter method), takes into account peer-reviewed scholarship, and is objective rather than subjective (U.S News).

Analyzing the top sixteen law schools, Phillips and Yoo have devised a new and interesting approach that differs from the Leiter methodology in two important respects. First, they use a simple citations per professor per year average calculated by adding up all of the citations for the faculty and dividing by the number of years of experience for the faculty. This approach, they argue, “diminishes bias in favor of longevity and prolificacy, bias against immediacy, the disregarding of citation rate half-lifes, and ignoring interdisciplinary impacts.”

Second, they include citation counts from non-law journals using the Web of Science, which includes the Science Citation Index Expanded, the Social Sciences Citation Index, and the Arts & Humanities Citation Index. They argue that “as the legal academy has been evolving for some time regarding the educational pedigree of professors (more JD/PhDs) and the focus of its scholarship (more interdisciplinary work), and citation studies need to be modernized to reflect this trend.”

So what are the results based on their new methodology? Based on the Phillips and Yoo survey, here are the results for the best law schools for international law and comparative law:

Here are the international law and comparative law all-star faculty members from the top sixteen law schools:


UPDATE: Brian Leiter responds to Phillips and Yoo here. Here’s the crux of his response:

The two most interesting things they do are consult citations in the “Web of Science” database (to pick up citations for interdisciplinary scholars–this database includes social science and humanities journals) and calculate a citations-per-year score for individual faculty. A couple of caveats: (1) they look at only the top 16 schools according to the U.S. News reputation data, so not all law schools, and not even a few dozen law schools; and (2) they make some contentious–bordering in some cases on absurd–choices about what “area” to count a faculty member for. (This is a dilemma, of course, for those who work in multiple areas, but my solution in the past was to try to gauge whether three-quarters of the citations to the faculty member’s work were in the primary area in question, and then to also include a list of highly cited scholars who did not work exclusively in that area.) Many of those decisions affect the ranking of schools by “area.” The limitation to the top 16 schools by reputation in U.S. News also would affect almost all these lists. See also the comments here.

I liked their discussion of “all stars” versus “super stars,” but it was a clear error to treat the top fifty faculty by citations per year as “super stars”–some are, most aren’t. Citations measures are skewed, first off, to certain areas, like constitutional law. More importantly, “super stars” should be easily appointable at any top law school, and maybe a third of the folks on the top fifty list are. Some aren’t appointable at any peer school. And the citations per year measure has the bizarre consequences that, e.g., a Business School professor at Duke comes in at #7 (Wesley Cohen, whom I suspect most law professors have never heard of), and very junior faculty who have co-authored with actual “super stars” show up in the top 50.

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A couple of readers asked whether I thought, per the title of the Phillips & Yoo piece, that their citation study method was “better.” I guess I think it’s neither better nor worse, just different, but having different metrics is good, as long as they’re basically sensible, and this one certainly is. On the plus side, it’s interesting to see how adding the Web of Science database affects things, and also how citations per year affects results. On the negative side, a lot of “impact” that will be picked up in the Web of Science database may be of dubious relevance to the impact on law and legal scholarship. And the citations-per-year measure has the odd result of elevating very junior faculty with just a year or two in teaching into elevated positions just because they may have co-authored a piece with a senior scholar which then got a few dozen citations. No metric is perfect (what would that even mean?), but this one certainly adds interesting information to the mix.

Legislative Fixes to the Problem of Executing Terrorist Judgments Against Iran

by Roger Alford

Having followed the terrorism litigation against Iran for years, I was fascinated to read of the recent legislation—Section 502 of the Iran Threat Reduction and Syria Human Rights–that creates a legislative fix for victims of one particular group of terrorist victims but not thousands of others.

The law in question grants plaintiffs/judgment creditors in one and only one case—Peterson v. Iran—the right to attach Iranian assets held in the United States, notwithstanding any other provision of law, including sovereignty immunity laws and laws recognizing the separate corporate identities of Iranian government entities.

As reported by Basil Katz of Reuters here, the case involves a $2.65 billion damage award obtained by the victims of Beirut Marine Corps barracks in 1983. The U.S. Treasury discovered $1.75 billion in a Citibank account that was deposited by Clearstream, an entity that holds Iranian funds in Luxembourg potentially subject to attachment.

There are several interesting wrinkles to this case.

First, it certainly is not clear that the $1.75 billion held at Citibank are Iranian assets held in the United States. Clearstream is arguing precisely that. The statute gets around this problem by broadly defining what constitutes an Iranian asset held in the United States. According to the statute, such an asset is one that is:

“(A) held in the United States for a foreign securities intermediary doing business in the United States, (B) a blocked asset [defined as those involving Peterson v. Iran] … and (C) equal in value to a financial asset of Iran, including an asset of the central bank or monetary authority of the Government of Iran or any agency or instrumentality of that Government, that such foreign securities intermediary or a related intermediary holds abroad.”

In other words, if a third party financial institution holds Iranian assets abroad, and also holds the equivalent amount in the United States, that money is a financial asset subject to attachment by the Peterson claimants.

Second, the statute supersedes “any other provision of law, including any provision of law relating to sovereign immunity, and preempting any inconsistent provision of State law.” Thus, the normal rules under the FSIA regarding immunity from jurisdiction or enforcement simply do not apply to the Peterson claims against Iran. The same goes for the Algiers Accords, which obligate the United States to transfer all Iranian assets held in the United States.

Nor do the normal rules apply with respect to the separate corporate identities of Iranian government entities. Clearstream’s financial assets held in Luxembourg belong to Bank Markazi (a.k.a. the Central Bank of Iran). But the statute defines “Iran” as “the Government of Iran, including the central bank or monetary authority of that Government and any agency or instrumentality of that Government.”

Third, the statute appears to privilege one group of victims to the exclusion of others. As most of our readers know, U.S. courts have awarded billions of dollars in judgments to thousands of victims of Iranian terrorism. Of all the acts of Iranian terrorism—the bus bombings in Jerusalem and suicide bombings at shopping malls in Tel Aviv, the targeted assassinations of Iranian dissidents in Paris, the victims of the Khobar Towers bombings in Saudi Arabia—why does this one group of victims deserve special statutory protection while the other victims do not?

The pragmatic answer, of course, is that counsel for the Peterson family was able to secure a legislative fix that other victims could not. That hardly appears satisfactory given the stakes involved. Frankly, there is something unseemly about a statute that so clearly privileges one set of terrorist victims at the expense of others.

The Reuters report suggests that there is an agreement between the Peterson victims and the other victims to share any judgments recovered, but it provides no details. Such a contractual solution is somewhat encouraging, but I seriously doubt that the other terrorist victims/judgment creditors will stand on an equal footing as the Peterson family based on this agreement. They, after all, have no leverage other than moral suasion.

Section 502 does state that a court must determine that “no other person possesses a constitutionally protected interest in the assets described in subsection (b) under the Fifth Amendment to the Constitution of the United States.” It’s not clear whether this refers to the Takings Clause—which seems likely—or to other clauses, such as the Due Process Clause prohibiting deprivations of life, liberty or property without due process of law. Regardless, I fail to see how the other victims of Iranian terrorism could fall within that exception.

Who knows where all this is headed. Litigation of this $1.75 billion dollar question is pending in New York. I will keep you posted.

Are Democracies Less Corrupt? The Answer May Surprise You

by Roger Alford

As part of my research on international corruption in a forthcoming article in the Ohio State Law Journal, I came across some interesting studies on the relationship between corruption and democracies. One would think that democratic regimes are less corrupt than autocratic regimes because in democracies public officials are subject to political accountability. But the evidence suggests otherwise. Empirical research confirms that the relationship between corruption and democracy is nonlinear. Only countries that are fully institutionalized democracies consistently rank well on Transparency International’s Corruption Perception Index scores. There is no measurable improvement in corruption rankings between mixed political regimes and partial democracies. Moreover, in many cases institutionalized autocracies have better corruption scores than partial democracies.

As one study noted, “corruption is likely to be slightly lower in dictatorships than in countries that have partially democratized. But with more complete democratization … countries experience much lower levels of corruption.”

Another study found that “[h]ow well any government functions simply hinges on how good citizens are at making their politicians accountable for their actions…. [I]t is only when citizens effectively discipline policymakers to serve them that public goods are delivered in an efficient manner and corruption is curtailed.” This requires not simply free and fair elections, but also informed citizens capable of curbing corruption.

Of course, fully-fledged democracies do not spring forth overnight. Studies indicate that a “long period of period of exposure to democracy lowers corruption.” It is common for countries in transition toward democracy to experience a growing problem with corruption. But in the battle against corruption, patience is a virtue. As one study put it, the “[g]reatest rewards (in the form of a clean and transparent state) [a]re granted to countries that [a]re able not only to realize but also to maintain the strongest and healthiest democratic institutions.”

In short, lukewarm democracies are not effective at combating corruption, and often do a worse job at it than tin-pot dictators. Only when democracy has fully flowered is there a strong positive correlation between a democratic form of government and low-levels of perceived corruption. The good news is that fully-fledged, well-established democracies are the cleanest governments on earth.

How to Jump Start Enforcement of Anti-Bribery Laws

by Roger Alford

Since the late 1990s, thirty-nine nations have signed the OECD Anti-Bribery Convention. So far so good. But unfortunately, the treaty essentially is toothless, requiring nations to implement national laws that prohibit foreign bribery, but doing little more. Only a handful of countries are effectively enforcing their anti-bribery laws. Which ones? Well, the answer seems to be the countries where the United States has gone after their corporations.

Under the FCPA, of course, the United States has jurisdiction over foreign companies that bribe foreign officials, provided they issue shares on a U.S. stock exchange. That is a very large category of foreign corporations. The United States can also go after foreign corporations if there is some territorial nexus. The DOJ and the SEC take an expansive interpretation of territoriality, such that the payment of a bribe through a U.S. correspondent bank or the sending of an email sent through a U.S.-based email account is considered a sufficient territorial nexus to permit prosecutions of foreign companies for bribing foreign officials on foreign soil.

So precisely how does the extraterritorial application of U.S. anti-bribery laws affect the regulatory behavior of other nations? That was the question of a recent study by Sarah Kaczmarek and Abraham Newman published in International Organization. The findings are fascinating, and strongly support the idea that an FCPA prosecution will jump-start corruption enforcement in other OECD countries.

The study by Kaczmarek and Newman found “strong statistical evidence linking extraterritoriality to national policy implementation.” Thus, if the U.S. prosecuted a German or British firm under the FCPA, the enforcement behavior of the German and British authorities increased dramatically. “[T]he odds of a country enforcing its first case are twenty times greater if a country has experienced extraterritorial application of the FCPA as compared to countries that have not.”

In other words, the regulatory behavior of OECD Parties changes dramatically following an FCPA prosecution of one of its nationals. This convergence trend suggests that, as the study put it, “lead regulators from large markets may alter domestic enforcement decision making in other jurisdictions, underscoring the subtle legal authority enjoyed by bureaucracies from powerful states to influence international markets.”

American corporations have long complained of the comparative disadvantage they have vis-à-vis other corporations because of U.S. anti-bribery laws. The OECD Convention went a long way toward leveling the playing field. But if you really want a level playing field, one of the best ways to achieve it is for the United States government to go after foreign corporations under the FCPA. This will increase the likelihood that other countries will launch their first corruption case under their own domestic laws by a factor of twenty!

If our world is a global village, I guess we could say that as long as there is one sheriff in town serious about government corruption, others will join the posse.

The Self-Judging WTO Security Exception

by Roger Alford

I have just published an article in the Utah Law Review that I wanted to flag for our readers. The focus is on the WTO security exception, one of the least appreciated aspects of WTO law. Given that the security exception is self-judging, it is curious that Member States rarely abuse the privilege by invoking it in bad faith. This is in turn raises interesting questions about compliance with international law: if a Member State has a trump card to avoid legal obligations, why does a Member State not invoke it more frequently? Scholars rarely focus on the question of why nations obey international law in the context of self-judging treaty exceptions. The WTO security exception affords that opportunity.

Here’s the abstract:

This Article analyzes the WTO security exception, with a particular focus on State practice. In the absence of any GATT or WTO jurisprudence, State practice affords the best vehicle to understand the meaning of Article XXI. In the few instances when invocation of the security exception has been challenged, State practice suggests that the security exception is not judicially reviewable.

A critical question emerges from this analysis of State practice. If a Member State can avoid WTO obligations through a self-judging security exception, what is to prevent bad faith invocations? The WTO regime includes a number of devices to address this concern, including opting out of normal trade relations, opting in to deeper trade relations, granting preferential treatment to developing countries consistent with security interests, and protecting against the nullification or impairment of Member States’ legitimate expectations even in the absence of a WTO violation. These arrangements provide broad discretion to act in furtherance of the national interest without violating trade rules. As such, Member States quite often can advance national objectives without the need to invoke the security exception.

Notwithstanding these mitigating factors, a self-judging security exception poses grave risks. If abused, it could undermine the entire WTO regime. But the practice of WTO Member States is to invoke the security exception in good faith, with a margin of discretion. A Member State may do so because of a fear of sanction, out of a sense of norm legitimacy, or because it is in its self-interest to do so.

The Article concludes with brief reflections on why nations comply with the good faith obligation of a self-judging exception. Compliance with a self-judging rule offers useful insights into larger questions of why nations obey international law. Rational choice and normative theories best explain compliance with a self-judging international norm.

The Citation Superstars of International Law: Bradley, Goldsmith, and Koh

by Roger Alford

Fred Shapiro and Michelle Pearse have just published in the Michigan Law Review “The Most-Cited Law Review Articles of All Time.” It is a fascinating read, and includes some choice nuggets about international law scholarship.

Among the more interesting findings is that of the recent era (1990-2009) only three international law scholars were among the most-cited: Curtis Bradley, Jack Goldsmith, and Harold Koh. In the recent era only six law professors (Mark Lemley, Cass Sunstein, Akhil Reed Amar, William Eskridge, Robert Post, and Reva Siegel) have had more citations and only seven other law professors (Stephen Bainbridge, Lucian Arye Bebchuk, Yochai Benkler, John Coffee, Dan Kahan, Lawrence Lessig, and Benjamin Spencer) have had as many top citations as the three IL citation superstars. See p. 1506. (I’m happy to say that one of Koh’s two-most cited articles was in an AJIL Agora debate in which I participated, albeit on the opposite side of the question).

Of the most cited law review articles of all time, no international law article makes the list. (An article by Abram Chayes is at number eleven, but it is not an international law piece.)

The other interesting nugget from the Shapiro and Pearse article is the list of the most-cited international law articles of all time, which I reproduce below.

Kudos to Bradley, Cole, Goldsmith, Helfer, Koh, Lans, Lowenfeld, McDougal, Mendelsohn, Orentlicher, Schachter, Slaughter, Sohn, and Weiler for making the list!

Plaintiffs Seek to Enforce Ecuadorian Judgment Against Chevron in Canada

by Roger Alford

The shoe has finally dropped. Ever since the Invictus Memo was released to the public we knew that the Ecuadorian Plaintiffs were considering twenty-seven different countries to enforce the $18.2 Ecuadorian judgment against Chevron. With Chevron’s far-flung assets, it was plausible that the Plaintiffs would choose to enforce the judgment in countries with close ties to Ecuador and a questionable commitment to the rule of law. The good news is that the Plaintiffs have chosen, at least for now, a highly reputable forum–the Ontario Superior Court in Canada–for adjudicating the recognition and enforcement of the judgment. Here’s a key excerpt:

11. The Judgment of the [Ecuadorian] Appellate Division is a final Judgment in Ecuador and is exigible against the assets of Chevron in whatever jurisdiction any may be found, including Canada.

12. All the facts, findings and conclusions of law stated in the Judgments and Clarifications in Ecuador are res judicata as between the parties.

13. As a consequence of the Decision of the Supreme Court of Canada in Beals v. Saldanha and subsequent jurisprudence, Chevron is estopped from challenging any fact, finding or determination of law in the Ecuadorian Decisions on the merits. Further, Chevron is restricted from challenging the Ecuadorian Decisions on the basis of fraud unless it can demonstrate that the allegations are new, not the subject or prior adjudication and were not discoverable by the exercise of due diligence.

Significantly, the plaintiffs are trying to attach the assets of Chevron Canada Ltd and Chevron Canada Financial Ltd, two wholly-owned subsidiaries of Chevron. Given that Chevron itself has few assets in Canada, the choice is somewhat curious. We know from the Invictus Memo that the Plaintiffs are seeking a jurisdiction that is “flexible” on veil-piercing, including what they call the “rare” case of “reverse veil-peircing”, holding the subsidiary liable for the parent’s judgment debt. (see p. 23). I do not know whether Canada would fall into the category of a flexible jurisdiction on reverse veil piercing.

The other key question, of course, is how Canadian law treats fraud as a defense to the enforcement of foreign judgments. As reported here, according to one Canadian scholar, Canadian courts “tend to take a somewhat narrower view of what might constitute fraud than some courts would.” I would be curious if others in the know agree or disagree.

It would appear that the Plaintiffs are confident enough in the merits of their position to avoid the mistake of filing in a court of dubious distinction, but not sufficiently confident enough to subject themselves to the jurisdiction of U.S. courts and the resulting counterclaims that would inevitably follow. As Chevron put it in a statement today, “If the plaintiffs’ lawyers believed in the integrity of their judgment, they would be seeking enforcement in the United States – where Chevron Corporation resides. In the U.S., however, the plaintiffs’ lawyers would be confronted by the fact that seven federal courts have already made findings under the crime/fraud doctrine about this scheme.”

The Statement of Claim makes no mention of the investment arbitration, nor the injunction against Ecuador to take action to prevent enforcement proceedings anywhere in the world.

A copy of the Statement of Claim is available here.

“‘Twas a Famous Victory”

by Roger Alford

On past Memorial Day weekend celebrations I have posted various speeches and photos in memory of our fallen heroes. For this Memorial Day weekend, I thought I would offer you a different perspective and present one of the best anti-war poems ever written.

The poem “The Battle of Blenheim” by Robert Southey was assigned in my younger son’s English class, along with a more traditional poem extolling the valor of war.

It has been a regular in English Anthologies since it was published in 1798, presenting the story of the futility of war, the foolishness of elders, and the wisdom of children. As one 1909 anthology put it, “Its call is to the people of the coming generations more than to ours, for it seeks to arouse feelings and attitudes just beginning to be felt among civilized people. Its cry is the rising voice of humanity; the protest against the senseless slaughter of war.”

It was a summer evening,
Old Kaspar’s work was done,
And he before his cottage door
Was sitting in the sun,
And by him sported on the green
His little grandchild Wilhelmine.

She saw her brother Peterkin
Roll something large and round
Which he beside the rivulet
In playing there had found;
He came to ask what he had found,
That was so large, and smooth, and round.

Old Kaspar took it from the boy,
Who stood expectant by;
And then the old man shook his head,
And with a natural sigh,
“‘Tis some poor fellow’s skull,” said he,
“Who fell in the great victory.

“I find them in the garden,
For there’s many here about;
And often when I go to plough,
The ploughshare turns them out!
For many thousand men,” said he,
“Were slain in that great victory.”

“Now tell us what ’twas all about,”
Young Peterkin, he cries;
And little Wilhelmine looks up
With wonder-waiting eyes;
“Now tell us all about the war,
And what they fought each other for.”

“It was the English,” Kaspar cried,
“Who put the French to rout;
But what they fought each other for
I could not well make out;
But everybody said,” quoth he,
“That ’twas a famous victory.

“My father lived at Blenheim then,
Yon little stream hard by;
They burnt his dwelling to the ground,
And he was forced to fly;
So with his wife and child he fled,
Nor had he where to rest his head.

“With fire and sword the country round
Was wasted far and wide,
And many a childing mother then,
And new-born baby died;
But things like that, you know, must be
At every famous victory.

“They said it was a shocking sight
After the field was won;
For many thousand bodies here
Lay rotting in the sun;
But things like that, you know, must be
After a famous victory.

“Great praise the Duke of Marlbro’ won,
And our good Prince Eugene.”
“Why, ’twas a very wicked thing!”
Said little Wilhelmine.
“Nay … nay … my little girl,” quoth he,
“It was a famous victory.”

“And everybody praised the Duke
Who this great fight did win.”
“But what good came of it at last?”
Quoth little Peterkin.
“Why, that I cannot tell,” said he,
“But ’twas a famous victory.”

Thousands of Kids Are Obsessed Today With What Six Countries?

by Roger Alford

Like thousands of other high school kids, today is AP Comparative Government exam day in the Alford household. According to the AP College Board, “The course aims to illustrate the rich diversity of political life, to show available institutional alternatives, to explain differences in processes and policy outcomes, and to communicate to students the importance of global political and economic changes.” But in order to move the discussion from the abstract to the concrete, AP Comp. Gov. students are required to study six–and only six–representative countries. Can you guess the six countries chosen as suitable for comparison? And could you answer the short- or long-essay questions these high school whiz kids are required to answer? Details after the jump:
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When is an Arbitral Panel an International Tribunal?

by Roger Alford

When is an arbitral panel an international tribunal for purposes of Section 1782? Section 1782, of course, is the statute that authorizes federal courts to order discovery in aid of proceedings before foreign courts and international tribunals. As discussed in a forthcoming article in the Virginia Journal of International Law entitled, Ancillary Discovery to Prove Denial of Justice, what constitutes an international tribunal is not a simple question. It is also a critically important question, because the power to invoke federal court discovery in aid of foreign or international proceedings is one of the most effective evidentiary tools that any international lawyer can wield.

Ever since the Supreme Court’s 2004 decision in Intel Corp. v. Advanced Micro Devices, Inc. that question has vexed lower federal courts. Although the Supreme Court did not address international arbitration directly, its reasoning appeared to support a broad interpretation that would encompass arbitral tribunals, which likewise act as “first-instance decision-makers” that render “dispositive rulings” subject to limited national court review. Moreover, in describing the scope of Section 1782, the Court found that Congress amended the statute in 1964 to “provide the possibility of U.S. judicial assistance in connection with administrative and quasi-judicial proceedings abroad” and quoted scholarly commentary that defined the term ‘tribunal’ to include “investigating magistrates, administrative and arbitral tribunals, and quasi-judicial agencies, as well as conventional civil, commercial, criminal, and administrative courts.”

In the wake of Intel, federal courts have struggled to apply the Court’s liberal Section 1782 standards to the context of international arbitration. Lower courts are divided on the question of whether a contract-based private international arbitral panel satisfies the statutory definition of “international tribunal.”

A majority have concluded that arbitral tribunals established by private contract are “foreign or international tribunals.” As the federal district court in In re Babcock Borsig AG, 583 F.Supp.2d 233 put it, addressing a Section 1782 petition involving an ICC arbitration, “[t]here is no textual basis upon which to draw a distinction between public and private arbitral tribunals, and the Supreme Court in Intel repeatedly refused to place ‘categorical limitations’ on the availability of § 1782(a).” Under this analysis, the functional approach adopted by the Supreme Court in Intel suggests that contract-based arbitral tribunals are first-instance decision-makers that issue decisions both responsive to the complaint and reviewable in court. As the court in Roz Trading, 469 F.Supp.2d 1221 put it, “it is the function of the body that makes it a ‘tribunal,’ not its formal identity as a ‘governmental’ or ‘private’ institution.”

Other federal district courts have concluded that private arbitral tribunals are not “international tribunals” within the meaning of Section 1782. These courts focus on arbitration as an alternative to litigation, foreclosing a key element of Intel’s analysis: judicial review. “[T]he very narrow circumstances in which [arbitral] decisions may be subject to review does not allow for judicial review of the merits of the parties’ dispute,” opined the federal district court in Norfolk Southern Corp., 626 F.Supp.2d 882. “Accordingly, the ‘arbitral tribunal’ at issue here does not fall within the definition the Supreme Court embraced in its Intel dictum.” Moreover, according to some courts, the fact that the source of judicial authority is derived from private agreement likewise militates against classifying it as a foreign or international proceeding under § 1782. Finally, pragmatic concerns have loomed large in the analysis. As one court put it, “[i]nterpreting § 1782 to apply to voluntary, private international arbitrations would be a body blow to such arbitration, since it would create a tremendous disincentive to engage in such arbitration wherever, as here, such a reading would create substantially asymmetrical discovery obligations.”

Whatever doubts there may be about the application of Section 1782 to contract-based international arbitration, federal courts uniformly agree that an arbitral tribunal established pursuant to a bilateral investment treaty constitutes an “international tribunal” within the meaning of the statute. Since Intel, over twenty federal courts have considered motions to compel Section 1782 discovery in aid of proceedings before treaty-based investment arbitration tribunals. Not a single federal court has held that such arbitral tribunals fall short of the statutory definition of an “international tribunal.”

Rather than take a functional approach that analyzes whether the investment tribunal is a first-instance decision-maker rendering decisions subject to judicial review, these courts either assume that such arbitral panels are “international tribunals,” or focus on the fact that the arbitral tribunal has its origins in a bilateral investment treaty. Although the absence of judicial review in the investment context is even more pronounced than in private commercial arbitration, this factor has not featured in any of the decisions applying Section 1782 to investment arbitration. In short, federal courts take a functional approach in defining an “international tribunal” in the commercial arbitration context, and a formalist approach in the investment arbitration context.