The war in Ukraine drags on, but central European resolve against Putin remains firm.
Last week in Kraków, Poland, the main square, Rynek Główny, was packed with Poles and foreign tourists in the days before the Christmas Market's weekend opening. Even amid the festive atmosphere, a small group of demonstrators held flags and spoke through amplifiers about the war in Ukraine and demanded the release of prisoners of war. Passersby were supportive, and some paused to listen (though the speaker spoke Ukrainian rather than Polish when I went by) and to look at the faces of POWs and MIA.
Poles have been unwavering in support of Ukraine. Polish history engenders empathy with victims of Russian oppression. And there's the simple benefit of having at least one friendly neighbor to the east. Poland's Baltic Sea border abuts Russia's Kaliningrad Oblast, and Poland has been besieged by passive-aggressive threats on its eastern border with Belarus.
Unfortunately for Krakovians, especially university students such as mine last week, the influx of Ukrainian refugees drove up the price of housing. Refugee populations have evened out, but, as these things go, housing prices have remained high. That's been a drag on university enrollment: just one more small way that the war burdens the region.
Thursday night I took the students to my favorite craft beer pub in Kraków, Multi Qlti Tap Bar. The beers always are top notch. I had a fruited gose, as well as a hazy IPA called "tank killer," or something like that that seemed appropriate to the times in central Europe.
Multi Qlti has good food, too, hot dogs and fries, with different preparations named after different places. For this Thanksgiving, I thought I'd share the description of the Massachusetts dog, subtitled "American Dream": "Cheese & Bacon Burger in the form of a dog? This is how we broaden our horizons: smoked frankfurter from the grill, crispy bacon, cheddar, honey, cucumber, lettuce, red onion, and BBQ and hamburger sauce."😋
Now that's a positive American food influence. Walking in Kraków, I saw the dark side of American food influence, too. A place called "Mr. Pancake" advertised the "American Pie-Cake." 🤢
Don't worry Poland; I'm sure appetite-suppressing injections are on their way next.
Images: "Massachusetts" from Restaurant Guru, translation by Google; "American Pie-Cake" by RJ Peltz-Steele CC BY-NC-SA 4.0, no claim to underlying works.
The Jagiellonian Law Society has announced a follow-up seminar, on March 14, 2023, on the subject of Polish-Jewish attorney Rafał Lemkin, his role in creating the UN Genocide Convention, and the relevance of Lemkin and the convention to the war in Ukraine.
In a previous seminar in December, speakers detailed the historical context of Lemkin's life and work. A featured guest in the March program will be the Hon. Stephen J. Rapp, U.S. ambassador-at-large for global criminal justice from 2009 to 2015, and more recently a visiting fellow of practice at the Blavatnik School of Government, University of Oxford.
Here is the program description and information about registration, free but required, CLE credit available, from the Jagiellonian Law Society.
We would like to invite you to another webinar on Raphael Lemkin, Genocide, and the Modern World, keynoted by Ambassador Stephen J. Rapp and featuring distinguished international faculty!
Rafał (or Raphael) Lemkin was a Polish Jewish lawyer best known for coining the term "genocide" and a key person behind the UN Genocide Convention. For that work, he was twice nominated for the Nobel Peace Prize. On the 50th anniversary of the Convention entering into force, Lemkin was honored by the UN Secretary-General as an inspiring example of moral engagement.
The upcoming seminar is the second part of the webinar series discussing the crime of "genocide" and its applicability to the current events in Ukraine and beyond. We will discuss whether Lemkin’s ideas are helpful in the prosecution of mass murders and other crimes aimed at eliminating or erasing entire groups of people. We will also address the likelihood of a successful prosecution of atrocities committed in Ukraine, be it as "war crimes," "crimes against humanity," or a "crime of aggression," via either international or national courts or via special tribunals.
The webinar is presented by the Jagiellonian Law Society with support from the Kosciuszko Foundation and co-sponsored by many organizations, among them ABA, NYSBA, UBA, NJSBA, etc. It is free and open to the public. Spots are limited. Registration is required.
We are honored and proud to announce that Ambassador Stephen J. Rapp, the United States Ambassador-at-Large for Global Criminal Justice, will be our keynote speaker, and we are honored and delighted to present to you our most distinguished international Faculty:
Professor Agnieszka Bieńczyk-Missala, Professor in Political Sciences at the University of Warsaw
Prosecutor Thomas Hannis, former lead prosecutor, UN International Criminal Tribunal Yugoslavia
Professor A. Dirk Moses, Anne and Bernard Spitzer Professor of Political Science at the City College of New York, CUNY
Professor Ana Filipa Vrdoljak, The UNESCO Chair in International Law and Cultural Heritage, Technical University, Sydney, Australia
Dr. Mykola Yurlov, International Humanitarian Law and Policy Advisor, member of the Council of the Ukrainian Bar Association in Kyiv
Moderator: Dr. Elizabeth M. Zechenter, Visiting Scholar, Emory University
Time: Mar 14, 2023, 12:00 PM in Eastern Time (US and Canada)
Proposed judicial reforms in Israel have set off a firestorm with critical characterizations comparing Prime Minister Benjamin Netanyahu with the likes of Jair Bolsonaro and Viktor Orbán.
Israel has seen a possible division—now familiar to the United States, cf., most recently, the House Speaker election (NPR)—between a traditionally conservative right and a more extreme right since Netanyahu retained office by allying with parties NPR characterized as "ultra-Orthodox religious" and "ultra-nationalist."
The reforms, which are not yet law, comprise two plans The New York Times described:
Under the first plan, a simple majority of lawmakers could override
almost any revocation of parliamentary legislation by the Supreme Court,
which can currently block laws on constitutional grounds. The court
would only be able to prevent itself from being overruled by Parliament
if all of its 15 judges unanimously agreed about the need to block a
law.
Under the second plan, the government would be able to appoint a
majority of the members of the panel that selects new judges, upending
the current system in which government appointees form only a minority
of panel members.
Israeli Supreme Court with Knesset behind. Israeltourism via Wikimedia Commons CC BY 2.0
On the one hand, the proposals would weaken the Israeli judiciary. But some commenters, such as American conservative Josh Hammer, have observed that the proposals are not radical. My colleague Professor Dwight Duncanhas argued that a U.S. Supreme Court majority, or at least super-majority, should be required to strike down legislation as unconstitutional. Arguably, the approach better balances the legislative and judicial branches than does extra-textual judicial supremacy. The second proposal would effect a selection process hardly more partisan than federal judicial appointments in the United States.
On the other hand, Israel is not America, and it might be a more urgently pluralist democratic experiment. As well, the ways of our dated Constitution are hardly exclusive pronouncements of best practices. In the context of populist executive aggrandizement in places such as Brazil and Hungary, and subordination of judicial power, as in Poland, the Israeli reform proposals are at least cause for concern.
Objections have come not only from Israeli liberals, but also from economic conservatives, who don't want the economic apple cart upset. The Jewish Telegraph Agencyexplained, "Foreign investors and international credit agencies have both signaled that if the reforms go through, they will downgrade their estimation of the country," disrupting perception of Israel as "a democratic oasis in the Middle East" possessed of "business savvy."
For the reform side, a proponent think tank posted a perhaps-too-playful, Schoolhouse Rock-style video on Twitter. For opponents, I received Friday from my friend and colleague Professor Roy Peled a statement signed by 198 Israeli professors, including, Professor Peled wrote, the majority of faculty from 13 law schools in Israel. The brief statement reads:
We, senior academic members of staff at law faculties in Israel,
strongly oppose the regime change that the Israeli government is
promoting under the guise of “legal reforms”. These far-reaching
constitutional changes include providing the government with absolute
control over the appointment of the judiciary; near complete elimination
of judicial review; dissolution of civil-servant ministerial legal
counsels as gatekeepers; and undermining the freedom of the press. In
aggregation, these proposals suffocate the independence of the
judiciary, dissolve the separation of powers between the branches of
governments, and eliminate the rule of law. No recognized democratic
country in the world operates under such conditions. The combination of
the proposed changes is alarming and dangerous. It will bring
far-reaching infringements of human rights, and strip Israel’s system of
government of fundamental features of its structure as a democracy.
We
call on those involved in the legislative process to avoid hasty
constitutional legislation that would transform the character of the
State of Israel, and we urge them to initiate a process of open,
respectful, and tolerant deliberation with the aim of reaching broad
agreements on these deeply consequential matters.
You are invited to a webinar on Raphael Lemkin, the UN Genocide Convention, and the likelihood of prosecution of the crime of genocide. Distinguished academics will discuss Lemkin and the Genocide Convention in light of the recent Russian aggression in Ukraine. Lemkin was Polish and Jewish and survived WWII. He had complex, divided loyalties and life experiences that influenced his work. He is often portrayed as a lone ranger, but he was effective in gaining support for his ideas, especially among women groups, who made the convention possible. Lemkin had a complex relationship with Stalin, which influenced his approach to the convention.
Professor Donna Lee-Frieze, Deakin University, Melbourne, Australia, a genocide studies scholar specializing in memory and aftermath;
Professor Doug Irvin-Erickson, Carter School Director of the Genocide Prevention Program at George Mason University;
Professor A. Dirk Moses, Australian historian teaching in political science at the City College of New York, CUNY;
Professor Roman Kwiecien, Department of International Law at Jagiellonian University, arbitrator at the Permanent Court of Arbitration in the Hague) and the Court of Conciliation and Arbitration within the OSCE in Geneva;
Professor Marcin Marcinko, Jagiellonian University Law School, chair of the National Commission for Dissemination of International Humanitarian Law at the Main Board of the Polish Red Cross, and co-organizer of the Polish School of International Humanitarian Law of Armed Conflict.
The Jagiellonian Law Society hopes also to feature contributions from Ukrainian scholars, arrangements pending.
The program is a result of the collaboration of the Jagiellonian Law Society with support from the International Human Rights and Women Interest Committees of the American Bar Association; the New York State Bar, New York City Bar, and New Jersey Bar; the Department of Russian and East European Studies at the University of Pennsylvania; and the School of Diplomacy and International Relations at Seton Hall University.
In an operation little known until recently, Polish Special Forces evacuated female judges and lawyers from Afghanistan in the wake of the chaotic U.S. exit in 2021.
I continue to discover stories of tribulation, heroism, and heartbreak emerging from last summer's debacle. The most haunting report remains one published at the time, though I caught up to it some months later, This American Life's nail-biting Prologue and Act One of "Getting Out."
In an action only recently come to light, Polish Special Forces within the NATO mission carried out "Operation L." As the Taliban took control of Kabul, female public officials, judges, and lawyers received threats of violence and murder. Prompted by the efforts of an Afghan judge and Polish lawyer, the Polish government deployed special forces.
Besides more than 1,000 other persons who escaped Afghanistan on flights organized by Polish authorities, soldiers evacuated to Poland a group of nearly 90 persons comprising women judges, lawyers, prosecutors, and their families.
Within the ABA, the International Law Section (ILS), Women's Interest Network, and International Human Rights Committee co-sponsored. I'm pleased to be affiliated with the JLS and ABA ILS.
On a less softhearted note, I was not happy with some of the sentiments
from Uprise RI in the state-capital rally. To my eye, too many
demonstrators were more interested in evidencing apathy by demanding U.S. non-intervention than in expressing any empathy or support for Ukraine. This selfishness, no less a
nationalism on the left than on the right, reminds me why I have long
refused to register with the Libertarian Party, even if I am a small-l
libertarian. Libertarianism should not mean isolationism; even objectivism does not utterly eschew the common defense. I wish we
lived in a world of peace and daisies, but that's delusional. There is
such a thing as jus ad bellum.
Anyway, hats off to Saturday Night Live, which hit a right chord with a classy cold open this past weekend.The situation at the Polish border is both a growing humanitarian crisis and a burgeoning source of stirring stories of compassion. I hope to write more on that soon as I hear from friends there.
It's all God's children singin' "Glory, glory, hallelujah" "He reigns, he reigns"
Let it rise above the four winds Caught up in the heavenly sound Let praises echo from the towers of cathedrals To the faithful gathered underground
I cited the other day a link to fundraising for The Kyiv Independent. GQ two days ago wrote about other ways to give. "Send Relief" is a Christian mission organization with a Ukraine crisis fund.
Flight from Ukraine is creating a refugee crisis in Poland. Men age 18-60 are not permitted to leave Ukraine, so families are separating with the hope of sparing children from the war. With their usual quiet relentlessness, Poles are stepping up in big numbers. My friends there report taking in families. Poland will need our support, too.
Calling for prayer, my pastor this week quoted Jesus in John 16:33: "I have told you these things, so that in me you may have peace. In this world you will have trouble. But take heart! I have overcome the world."
The Beijing Olympics opened Friday, and conventional wisdom suggests that the chess game playing out in Eastern Europe will not heat up until the Olympics ends on Sunday, February 20. Nervous speculation abounds on what the following week might bring. Meanwhile, 3,000 American troops are deploying to Poland, Romania, and Germany.
February 24 thus seems an opportune time to learn something more about the complicated history of the region that is the focus of the world's attention. The Lemkos ethnic group, at home in the Carpathian mountain range, sits at a curious crossroads. With communities spanning Poland, Ukraine, and Slovakia, the Lemkos are an important piece of the region's multicultural story. Oppressed by the Soviet Union, they are something of a mirror image of the intercultural wedge that Vladimir Putin is now driving to fragment Ukraine in the east.
Carpatho-Rusyns, including Lemkos at left, celebrate a cultural day in 2007. (Photo by Silar CC BY-SA 3.0)
Professor Jan Pisuliński, a historian at the University of Rzeszów, will deliver the lecture, "Lemkos and Ukrainians," the fourth in a series on "Ethnic Minorities in Polish Lands." Pisuliński is author of the book Special Operation "Vistula" (Akcja Specjalna 'Wisła') (2017) (Amazon), the definitive account of the forced resettlement by the Soviet Union in 1947 of 140,000 to 200,000 persons, mostly ethnic minorities including Lemkos, from the Carpathians to western Poland. With the resettlement, the Soviets dismantled post-war guerilla resistance in the region. On the northern edge of the Carpathians and in the southeast of Poland, Rzeszów is about 100km by highway form Ukraine's western border.
Teaching Comparative Law is everything that makes teaching great. It's an impossible job, because no one is expert in law the world over, so the course can be daunting to teachers and students alike. But the challenge is best undertaken as an opportunity to explore. The joy of teaching Comparative Law for me and my wife, who serves as a law librarian embedded in the course, is that every time, current events and our students' range of interests lead us down new paths.
We wrestle with the problem of what we don't know by consulting experts. This semester, as in past semesters, we were privileged to have had our class enriched by the knowledge and experience of some stars in legal practice and academics. In order of appearance...
Attorney Wojciech Jarosiński, LL.M. (on this blog), of the Maruta law firm, stayed up late to join us from Warsaw, Poland. To give us the perspective of a lawyer working in the civil law tradition, he led the class in examining judicial reception of a U.S. punitive damages award in Poland, and then in considering common law and civil law differences in the context of transnational contracting.
Professor Chenglin Liu, St. Mary’s University School of Law, joined from post-freeze Texas to talk about the Chinese response to covid-19. Professor Liu wrote about the Chinese response to SARS in 2005 in a work that the pandemic rendered newly salient. A fellow torts teacher, Professor Liu also indulged student questions around U.S. states' suits against the PRC and the implications for Biden Administration diplomacy.
Professor Danya Reda, UMass Law, treated our class to an introduction to Islamic Law. Also a fellow torts teacher, Professor Reda teaches an upper-level class on Islamic Law. Before returning to the United States full time, Professor Reda taught at Peking University School of Transnational Law. Her research examines court reform in global perspective.
Professor Sindiso Mnisi Weeks, UMass Boston, led the class in a lively discussion of South Africa. She generously shared her latest research findings on marriage and land rights in customary and contemporary law. Besides a doctoral degree from Oxford, Professor Mnisi Weeks holds a law degree from the University of Cape Town, home to the renowned Centre for Comparative Law in Africa. She serves UMass Boston in the School for Global Inclusion and Social Development.
Professor Leah Wortham, Columbus School of Law, Catholic University of America, joined us to talk about the unfolding crisis over judicial independence in Poland. With Professor Fryderyk Zoll, Jagiellonian University, Professor Wortham published the definitive treatment of the subject in 2019. The matter has become only more complicated and more concerning, both within Poland and between Poland and the EU, in the years since.
Our thanks to Attorney Jarosiński and Professors Liu, Reda, Mnisi Weeks, and Wortham for contributing to a stellar semester's experience. Watch this blog for a report in May on the students' final papers.
Social stability in Poland has been increasingly shaky since populist politics has threatened the independence of the judiciary in recent years. Professor Leah Worthamwrote about the issue and kindly spoke to my Comparative Law class one year ago (before Zoom was cool).
Recently tensions have reached a boiling point. In October, the nation's constitutional court outlawed nearly all abortions (Guardian). Protestors have taken to the streets in the largest numbers since the fall of communism, The Guardian reported, confronting riot police and right-wing gangs.
Friend and colleague Elizabeth Zechenter, an attorney, visiting scholar at Emory College, and president of the Jagiellonian Law Society, writes: "Poland is in upheaval, after the Constitutional Tribunal restricted
even further one of the most strict anti-abortion laws in Europe. I
and several other Polish women academics
have gotten together, and we created a webinar, trying to offer an
analysis, legal, cultural, sociological, etc."
The scholars' webinar is available free on YouTube. Below the inset is information about the program. Please spread the word.
Women Strikes In Poland: What is Happening, and Why?
Since the fateful decision of the Polish Constitutional Tribunal (Trybunał Konstytucyjny or TK) on October 22, 2020—further restricting one of the most restrictive anti-abortion laws in Europe—Poland saw massive, spontaneous demonstrations and civic protests in most cities, small and big, and even villages. Protests have been continuing since the day of TK’s decision and show no signs of abating.
To explain what is happening, we have assembled a panel of academics and lawyers to clarify the current legal situation, to analyze the scope of new anti-abortion restrictions, to explain whether this new law may be challenged under any of the EU laws applicable to Poland, and what might be political implications of doing that, as well as offer a preliminary cultural, linguistic, anthropological, and sociological analysis of the recent events.
Contents
0:00:00-0:03:17 Introduction: Bios of Speakers, Disclaimers
Legal Panel
0:03:17-0:26:00 Elizabeth M. Zechenter, J.D., Ph.D., "October 2020 Abortion Decision by the Constitutional Tribunal: Analysis and Legal Implications"
0:26:00-0:46:00 Agnieszka Kubal, Ph.D., "Human Rights Implication of the Decision by the Polish Constitutional Tribunal from 22 October 2020"
0:46:00-0:59:00 Agnieszka Gaertner, J.D., LLM, "Abortion Under EU Law"
Panel: Culture and Language of Protest
0:59:00-1:31:00 Katarzyna Zechenter, Ph.D., "Uses of Language by the Protesters, the Polish Catholic Church, and the Ruling Political Party 'Law and Justice' (PiS)"
Panel: Sociological and Anthropological
1:31:00-1:49:00 Joanna Regulska, Ph.D., "Struggle for Women's Rights in Poland"
1:49:00-2:12:00 Helena Chmielewska-Szlajfer, Ph.D., "Augmented Reality, Young Adults, and Civic Engagement"
Praise for the Webinar
"Wow! That was, without a doubt, one of the most informative, fascinating, engaging, and powerful webinars I have ever attended."
"All of us in your virtual audience 'voted with our feet' ... i.e., it is generally considered that 90 minutes is an audience's absolute maximum attention span for an online webinar, particularly since everyone these days is simply 'Zoomed-out' (over-Zoomed), in this era of COVID-19. But YOUR audience stayed with you for a marathon 2 hours and 45 minutes (and it felt like a sprint, not a marathon)!"
"A high tribute to you and your sister (not fellow!) panelists."
Disclaimers
The webinar was organized impromptu in response to numerous calls to analyze Poland's ongoing protests. The goal of the webinar was to provide a non-partisan review of the evolving situation and better understand the legal, cultural, and sociological underpinnings of the Constitutional Tribunal’s anti-abortion decision that resulted in such massive country-wide protests.
The opinions expressed in the seminar are those of the speakers alone who are not speaking as representatives of any institution; the main goal has been to advance understanding of the situation.
Given the urgency to offer at least a preliminary analysis (and in light of the continuously evolving situation), most speakers had less than 24 hours to prepare their remarks. We apologize for any imperfections.
Yesterday I had the privilege to present in a lecture series (virtually) at Jagiellonian University (UJ) on the tort of nuisance in American common law. I sketched out the historical background of nuisance relative to the recent lawsuit by the State of Missouri, against the People's Republic of China, alleging public nuisance, among other theories, and seeking to establish responsibility and liability for the coronavirus pandemic. Here is a video (CC BY-NC-SA 4.0) of the presentation, also available from Facebook, where the lecture streamed live. A narrative abstract is below the video.
The Tort of 'Nuisance' in American Common Law:
From Hedge Trimming to Coronavirus in 900 Years
Nuisance is one of the oldest civil actions in Anglo-American law, dating to the earliest written common law of the late middle ages. Nuisance for centuries referred to an offense against property rights, like trespass, interfering with a neighbor’s enjoyment of land. But a nuisance need not be physical, and colorful cases have addressed nuisance achieved by forces such as sound, light, and smell. In recent decades, nuisance has undergone a radical transformation and generated a new theory of civil liability that has become untethered from private property. State and local officials have litigated a broad new theory of “public nuisance” to attack problems on which the federal government has been apathetic, if not willfully resistant to resolution, such as climate change and the opioid epidemic. Just last month, the State of Missouri sued the People’s Republic of China, asserting that COVID-19 constitutes a public nuisance. Emerging from understandable frustration, public nuisance nevertheless threatens to destabilize the fragile equilibrium of state and federal power that holds the United States together.
Here are some links to read more, as referenced in the presentation:
Oral argument in Oakland v. BP (9th Cir. argued Feb. 5, 2020)
Complaint in Missouri v. PRC (E.D. Mo. filed Apr. 21, 2020) (item 1)
Here is a two-minute video (CC BY-NC-ND 4.0) of only my PowerPoint (no audio), if you want an idea about the course of the talk:
The four-part lecture series, "American Law in Difficult Times," comprises:
Paul Kurth: The American Low-Income Taxpayer: Legal Framework and Roles Law Students Play
May 12, 18:00 Event - Video
May 19, 18:00
Richard Peltz-Steele: “Nuisance” in American Common Law Tort: COVID-19 as a Public Nuisance? Event - Video
May 26, 18:00 Susanna Fischer: Art Museums in Financial Crisis: Legal and Ethical Issues Related to Deaccessioning Event - Video
June 2, 18:00 Cecily Baskir: American Criminal Justice Reform in the Time of COVID-19 Event - Video
Here is the lecture series invitation (Polish) from the American Law Students' Society (ALSS) at UJ, via Facebook:
Here is an "about" from ALSS and partners:
❖ ABOUT AMERICAN LAW IN DIFFICULT TIMES:
The American Law Program (Szkoła Prawa Amerykańskiego) run by the Columbus School of Law, The Catholic University of American [CUA], Washington D.C., and the Faculty of Law and Administration, Jagiellonian University, Kraków, as well as the American Law Students’ Society (Koło Naukowe Prawa Amerykańskiego)
at the Jagiellonian University, Kraków, sincerely invite you to
participate in a series of four one-hour online open lectures and
discussion sessions delivered by professors from the American Law
Program.
The lectures will be devoted to a variety of
legal issues mainly relating to COVID-19 difficulties facing people and
institutions, for which legal solutions may be useful.
The
lectures will be available through Microsoft Teams as well as a
live-stream via Facebook. Participants willing to participate through
Microsoft Teams are kindly asked to provide the organizers with their
e-mails no later than 6 hours before the commencement of the lecture, by
e-mail to kn.prawaamerykanskiego@gmail.com.
Your
participation in all four lectures will be certified by the American Law
Students’ Society. Only those participants who provide the organisers
with their name, surname and e-mail will be granted such certificates.
I am grateful to Jagoda Szpak and Agnieszka Zając of ALSS at UJ; Wojciech Bańczyk, Piotr Szwedo, Julianna Karaszkiewicz-Kobierzyńska, and Gaspar Kot at UJ; and Leah Wortham at CUA. The lecture series is sponsored by, and I am further grateful to, the Koło Naukowe Prawa Amerykańskiego (ALSS), Szkoła Prawa Amerykańskiego (School of American Law), and the
Ośrodek Koordynacyjny Szkół Praw Obcych (Coordination Center for
Foreign Law Schools) at the Uniwersytet Jagielloński w Krakowie
(UJ in Kraków), and to CUA.
Access to information (ATI) is essential to ethical and efficacious social and economic development. Transparency ensures that human rights are protected and not overwhelmed by profiteering or commercial priorities. Accordingly, ATI has become recognised as a human right that facilitates the realisation of other human rights. But ATI as conceived in Western law has meant only access to the state. In contemporary development, private actors are crucial players, as they work for, with, and outside the state to realise development projects. This investment of public interest in the private sector represents a seismic shift in social, economic, and political power from people to institutions, akin to the twentieth-century creation of the social-democratic state.
Contingent on state accountability, Western ATI law has struggled to follow the public interest into the private sector. Western states are stretching ATI law to reach the private sector upon classical rationales for access to the state. In Poland, hotly contested policy initiatives over privatisation and public reinvestment have occasioned this stretching of ATI law in the courts. Meanwhile, in Africa, a new model for ATI has emerged. Since the reconstruction of the South African state after Apartheid, South African ATI law has discarded the public-private divide as prohibitive of access. Rather than focusing on the nature of a private ATI respondent’s activity as determinative of access, South African law looks to the demonstrated necessity of access to protect human rights.
This chapter examines cases from South Africa that have applied this new ATI model to the private sector in areas with development implications. For comparison, the article then examines the gradually expanding but still more limited Western approach to ATI in the private sector as evidenced in Polish ATI law. This research demonstrates that amid shifting power in key development areas such as energy and communication, Polish courts have been pressing ATI to work more vigorously in the private sector upon theories of attenuated state accountability, namely public ownership, funding, and function. We posit that Poland, and other states in turn, should jettison these artifices of state accountability and look instead to the South African model, since replicated elsewhere in Africa, for direct access to the private sector. ATI law should transcend the public-private divide, and the nations of the North and West should recognise human rights as the definitive rationale for ATI in furtherance of responsible development.
Gaspar Kot
With Mr. Kot's help, this chapter extends to a European context my previously published comparative work on private-sector information access. Gaspar's expertise was invaluable for Polish legal research, to be sure, but moreover to help me to understand Poland's richly complex, on-again-off-again courtship of privatization.
In earlier works, I compared the South African approach with the United States FOIA and with Indian RTI law. I am excited about this approach in access-to-information law, which is now gaining traction elsewhere in Africa, because I believe it to be a potential game-changer in saving democracy and human dignity from corporatocracy. I am spending some of my sabbatical time this semester in Africa and other parts of the developing world studying how this approach is especially salient in the context of problems in social and economic development.
For democracy and the rule of law to function and flourish, important
actors in the justice system need sufficient independence from
politicians in power to act under rule of law rather than political
pressure. The court system must offer a place where government action
can be reviewed, challenged, and, when necessary, limited to protect
constitutional and legal bounds, safeguard internationally-recognized
human rights, and prevent departures from a fair and impartial system of
law enforcement and dispute resolution. Courts also should offer a
place where government officials can be held accountable. People within
and outside a country need faith that court decisions will be made
fairly and under law. Because the Council of Europe’s Group of States
against Corruption (“GRECO”) deems judicial independence critical to
fighting corruption, GRECO makes a detailed analysis of their members’
judicial system part of their member review process. This Article is a
case study of the performance of Poland’s mechanisms for judicial
independence and accountability since 2015, a time of extreme political
stress in that country. Readers will see parallels to comparable
historical and current events around the world.
In discussion with the class, Professor Wortham remarked on parallels between the Polish judicial crisis and threats to the legitimacy of the courts in the United States. She referenced recent remarks by U.S. District Judge Paul Friedman to the American Law Institute, in which Judge Friedman distinguished denigration and personal attacks on the judiciary from disagreement with judicial decisions accompanied by respect for a co-equal branch of government (ALI, CNN). The class discussion about Poland also treated the recent decision of the Irish Supreme Court to order extradition of a Polish man wanted for drug trafficking offenses, despite concerns about judicial independence in Poland (Irish Times).
Witold Pilecki was an officer of the Polish underground in 1940 when he allowed himself to be captured by the Nazis in a civilian roundup and sent to Auschwitz. The underground sought to document German atrocities in the concentration camps with the aim of spurring the Allies to action.
Assuming a false identity using found papers, Pilecki passed himself off as "Tomasz Serafiński," the commanding officer of the Nowy Wiśnicz region unit of the underground Polish Home Army (Armia Krajowa, or AK). He remained in Auschwitz for nearly there years and wrote reports for the underground that were smuggled to London and Washington.
At Easter in 1943, Pilecki and compatriots made a daring escape from Auschwitz. Hunted by the Gestapo, they made their way through the Polish countryside and ultimately found refuge with the real Tomasz Serafiński, his wife, Ludmiła, their children, and their underground network. Amid their run, the escapees had become suspected by the underground of being German spies. As he grew close to his unexpected namesake, Serafiński found himself at odds with the AK, ultimately depending on Ludmiła to protect both men against underground suspicion and Nazi hunters. Pilecki and Serafiński each had a grim fate yet in store.
Pilecki at Auschwitz
This riveting WWII story is the subject of a working research paper, replete with documentary images, authored by Elizabeth M. Zechenter, Ph.D., J.D.: Was it Really a Blind Fate? Interwoven Lives of Witold Pilecki and Tomasz Serafiński, and the Daring Efforts of Ludmiła Serafińska to Save Them Both. The paper was featured in this month's (Oct. 2019, no. 20) Quo Vadis, the Philadelphia Chapter newsletter of The Kosciuszko Foundation. The foundation is a New York-city based non-governmental organization dedicated to cultural and educational exchange between the United States and Poland.
Zechenter
By day an assistant general counsel for GlaxoSmithKline, LLP, Zechenter is an accomplished academic researcher (Academia.edu, ResearchGate), her UCLA Ph.D. in evolutionary archaeology, who has taught international law and human rights law at Georgetown University Law Center. She also is president of the Jagiellonian Law Society (JLS), "a voluntary legal association comprised of a diverse group of
professionals (lawyers, judges, law faculty, and law students) who are
interested in, or have roots in Polish and Central/Eastern European
(CEE) cultures." She is related to the Serafińskis.
I was privileged to learn about Elizabeth's work through membership in JLS ("open to any legal professional who shares [JLS] interests and goals") and my work in the Catholic University of America, Columbus School of Law, American Law and LL.M. program with Jagiellonian University (not associated with JLS) in Kraków, Poland, and Washington, D.C.
Much worry about censorship today focuses on the private sector, specifically and especially the large tech companies--Google, Facebook, Twitter--who have so much power over what we read, hear, and see. When I was in journalism school, in ethics class in the early 1990s, a student once mentioned the possibility of a news organization withholding a sensitive story and worried that that would be "censorship." Professor Lou Hodges--a great teacher, great person, since deceased--vigorously corrected the student, saying that censorship by definition must be governmental action.
Louis Hodges, W&L
Well denotational niceties aside, and with the great respect due to Professor Hodges, I'm not sure the distinction remains salient. I've been worried about the private sector in the free speech realm for a long while. I've already posited in print that the greatest looming threat to the freedom of information around the world today is not government, but private corporations, and I've started writing about what can be done (what already is being done in Africa, relative to: the United States, India, and Europe, forthcoming). Indeed, even the classical distinction between freedom of expression and the freedom of information has lost much salience in the information age.
In the United States, for good historical reasons, our constitutional law draws a sharp line between the freedom of speech and the freedom of information, and also between state action, "censorship," and private action, so-called "private censorship." Both of those lines have eroded in the real world, while our law stubbornly insists on them.
Foreign constitutional systems, such as the European and African human rights regimes, do not come with the historical baggage that carved these lines in U.S. constitutional law. These younger systems are proving more adept at navigating the problem of private action that would suppress speech and information. That flexibility has meant full employment for lawyers in the counsel offices of Big Tech.
It also means that the law of the internet and the law of digital rights is no longer being authored in the United States.
In Poland, a digital rights organization called the Panoptykon Foundation--I assume named for the legendary imaginings of English philosopher Jeremy Bentham--is litigating without shame against Big Tech, Google and Facebook included. In a suit against Facebook, Panoptykon has taken up for "SIN," an (acronymed appropriately if coincidentally?) anti-drug NGO in Poland. SIN apparently suffered content-based take-downs and blocks on Facebook. It's not clear why Facebook (algorithms? censors?) targeted SIN, though TechCrunch speculated that it might have to do with SIN's strategy on drug counseling: more of a "use responsibly" approach than an abstention-only approach.
The action is based on Polish statute, which guarantees freedom of speech and does not get hung up on any American-style state-action limitation. In June, a Warsaw court ex parte ordered (in Polish, via Panoptykon) Facebook to stop blocking or removing any online SIN content, pending litigation. Technically the respondent in the case is Facebook Ireland. But one can imagine that American Facebook execs are on alert, as foreign courts fuss ever less over the public-private distinction.
Professor Hodges might roll over in his grave to hear me say it, but I am confident that "private censorship" will be the free speech story of the 21st century. America will be dragged into a new world of legal norms in digital rights, willingly or not. I would rather see us embrace this new world order and confront the problem of a runaway private sector than see our civil rights law relegated to legal anachronism.
I am privileged to share this CFP. Deadline October 10, 2017.
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‘Law and Development Conference’
Jagiellonian University in Krakow, Poland
March 16, 2018
Organizer: The American Law Program of the Catholic University of America at the Jagiellonian University in Krakow, Poland.
Academic purpose: The research project’s aim is to look at the concept of ‘development’ from alternative perspectives and analyze how different approaches thereto influence law. ‘Sustainable development’ is about balancing economic progress, environmental protection, individual rights, and collective interests. It requires a holistic approach to human beings in their individual and social dimensions, which can be seen as a reference to ‘integral human development’ – a concept present in Catholic social teaching.
‘Development’ may be seen as a value or a goal. But it also has a normative dimension influencing lawmaking and legal application. It is a rule of interpretation, which harmonizes the application of conflicting norms, and which is often based on the ethical and anthropological assumptions of the decision maker.
This research project is also about how different approaches to ‘development’ and their impact on law may coexist in pluralistic and multicultural societies and how to evaluate their legitimacy. The problem may be analyzed from the overarching theoretical perspective as well as based on case studies stemming out from different legal branches.
Addressees: Academics from US, Poland and other countries; alumni of the American Law Program, LLM Program, and International Business and Trade Summer Law Program organized by Catholic University of America at Jagiellonian University.
Arrangements: 300-word paper proposals should be submitted by October 10, 2017 at okspo@uj.edu.pl. Successful applicants will be notified by October 20, 2017. Accommodation for selected speakers at the university’s hotel will be provided by Jagiellonian University (two nights for speakers from Europe, 3 nights for speakers from outside Europe). Travel costs must be provided by participants.
Publication: The best conference papers will be published with Catholic University Law Review. Final draft will be due by late January 2018 for those who would like to be considered for publication.
Academic committee: George Garvey, Megan LaBelle, Richard Peltz-Steele, Leah Wortham, Piotr Szwedo.
