In the March Atlantic David Frum pleaded for the "uncanceling" of Woodrow Wilson and gave a shout out to the great Judge Learned Hand.
Frum exhibited his usual eloquence in pleading for understanding that people are complicated and we ought not throw out the baby with the bathwater. Wilsonianism has guided American foreign policy for a century and has done a lot of good in the world, Frum argued persuasively. One cannot pretend away that legacy in an eagerness to embrace the admittedly ample evidence of Wilson's racism and bigotry.
We ought be wary as well, Frum observed, that right and left both are eager to "cancel" Wilson. The left for his racism, of course. The anti-regulatory right, meanwhile, sees Wilson as a forefather of both globalism and the administrative state. Besides his vision for what would become the United Nations, Wilson signed the Federal Trade Commission Act into law in 1914. With the Chevron doctrine presently withering in the Supreme Court, lefties, be careful what you're canceling.
An aside on the subject of left and right: The Economist published a fabulous opinion piece last week that's a balm for classical liberals such as myself who have been rendered ideologically homeless by the ironic Republican embrace of "the state [as] savior." (Every American libertarian, by which I mean most Americans, should read it, so it's unfortunate that it's paywalled.)
In the course of his reasoned plea, Frum further observed:
We live now in a more polarized time [than Wilson's], one of ideological extremes on
both left and right. Learned Hand, a celebrated federal judge of
Wilson’s era, praised "the spirit which is not too sure that it is
right." Our contemporaries have exorcised that spirit. We are very sure
that we are right. We have little tolerance for anyone who seems in any
degree wrong.
Torts students know Learned Hand for his also famous formula to describe rational choice as a weighing of burdens against the risk of loss. Hand was prolific, and his subtle influences can be traced through many fields of American law in the 20th century. Indeed, see The Atlantic in 1961.
Just yesterday, as it happens, I was talking after class with a 1L Torts student about the imperative that legal education empower a student to challenge one's own assumptions. I know what you're thinking, but it was she who made the point. "We should question ourselves," she said. "We should never stop questioning."
Wise woman.
Speaking of wise women, hat tip @ my wife for spying The Economist item.
Incidentally, the cover story of the March Atlantic concerns police response to mass shooting events, focusing on, but definitely not limited to, the Deputy Scot Peterson matter at Marjory Stoneman Douglas High School in Parkland, Florida. In June 2023, Peterson was acquitted on all charges after a trial in which authorities alleged felony child neglect and criminal negligence. In January 2024, a Florida court denied a defense motion to dismiss civil suits by 17 families against Peterson, clearing the matter for trial.
Frum's article is Uncancel Woodrow Wilson, The Atlantic, Mar. 2024 (online Feb. 2, 2024) (subscription).
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.
On Tuesday, an intermediate appellate court in the Netherlands upheld a verdict against the government demanding more state action to curb carbon emissions and combat climate change. The court's decision (unofficial English translation) in favor of energy NGO Urgenda came just one day after the dire 12-year warning of the special report of the U.N. Intergovernmental Panel on Climate Change. Meanwhile the Trump Administration filed an emergency motion in federal court in Oregon today in its latest bid to stop climate-change litigation in the United States.
The Netherlands is working mightily already to reduce carbon emissions. The state projects a reduction in the neighborhood of 20% by 2020 over 1990 levels. But that number still falls short of 25%, which the court calculated as the nation's minimum treaty commitment. That difference, The Guardian reported, could be enough to force the shutdown of a recently opened coal-fired power plant. The court's decision chiefly references the 1992 U.N. Framework Convention on Climate Change and traces the development of states' legal obligations through the history of climate conferences from Kyoto in 1997 to Bonn in 2017.
As the state observed in the case, "Dutch emissions are minor in absolute terms and ... the Netherlands cannot solve the global problem of climate change on its own" (¶ 30). So the global significance of the decision is mostly symbolic, and, activists hope, an example for climate-change activism in the courts around the world.
American iterations of climate-change litigation are many, but the one case that has captured the public imagination more than any other is Juliana v. United States in the District of Oregon. The case has played well in media because the plaintiff effort is spearheaded by a not-so-camera-shy youth group, the Earth Guardians, led by indigenous activist, hip-hop artist, and let's be honest, teen heartthrob Xiuhtezcatl Martinez. (Below: new promo video for Martinez's debut album, Break Free.)
Juliana might yet be described best as "ill fated." Unlike myriad climate-change-aiming lawsuits in areas such as environmental and business regulation, or upon collateral constitutional theories, such as the Commerce Clause or First Amendment, Juliana is a direct assault on the federal government under constitutional due process—literally, the right to life.
At first blush, this approach seems to face insurmountable hurdles before the merits could ever be reached: namely, standing, justiciability, official immunity, not to mention the hundred other reasons civil rights lawsuits are awfully hard to win. Then at the threshold of the merits lie the conventional tort problems of affirmative duty, causation, and injury. In the "constitutional tort" vein, the plaintiffs seek to breathe new breadth into the "public trust doctrine," which posits that government holds natural resources in trust for the public good. The doctrine has seen modest success in, for example, beach access cases, but jurisprudential conservatives do not enthusiastically embrace the raw, public-policy-driven invitation to judicial intervention.
Despite conventional wisdom, the Juliana suit survived both a motion to dismiss in the trial court and an aggressive effort by the Trump Administration to shut the action down in the Court of Appeals. (To be fair, the Obama Administration also was not ra-ra plaintiffs on this one.) In November 2016, District Judge Ann Aiken recognized, "This is no ordinary lawsuit." Upon detailed analysis, she rejected the government's arguments on both standing and justiciability, finding the question presented "squarely within the purview of the judiciary."
Then, analogizing to the Supreme Court's reasoning on due process in the 2015 gay marriage case, Obergefell v. Hodges, Judge Aiken "ha[d] no doubt that the right to a climate system capable of sustaining human life is fundamental to a free and ordered society." The Ninth Circuit in March rejected the government's bold demand that the case be dismissed to protect the separation of powers, finding the government's claim premature and well shy of the high bar for writ of mandamus. In July, the U.S. Supreme Court denied the government's appeal for a stay.
Thus back on the District of Oregon docket, Juliana was scheduled to open at trial on October 29. A headline in The Japan Times, over a pro-plaintiff commentary by Princeton bioethics professor Peter Singer, titled Juliana "the trial of the century." One week ago, on October 5, the Administration filed another motion for stay in the trial court. Undoubtedly buoyed by the appointment of Justice Brett Kavanaugh, the Government today renewed its motion to stay and asserted its intention to petition the U.S. Supreme Court for mandamus relief.
In the Dutch case, the government tried to fend off the lawsuit on grounds equivalent to standing and justiciability, but to no avail. The Dutch Civil Code authorizes class actions (a rarity in Europe) specifically by interest groups on behalf of citizens. Moreover, the court reasoned that individual human rights claims must be justiciable in Dutch courts if individuals could bring the same claims in the European Court of Human Rights. The government argued "trias politica," that is, separation of powers, to which the court responded (cheekily?): "This defence does not hold water. The Court is obliged to apply provisions with direct effect of treaties to which the Netherlands is party, including [the European human rights convention]. After all, such provisions form part of the Dutch jurisdiction and even take precedence over Dutch laws that deviate from them" (¶ 69).
Under the European human rights convention, Urgenda relied on articles 2 and 8, respectively the rights to life and privacy, the latter including the inviolability of family life—the same two notions cited by Judge Aiken in her Obergefell-inspired due process analysis under the Fifth and Fourteenth Amendments.
You can await the next development in Juliana via PACER under case no. 6:15-cv-01517. [UPDATE: U.S. Supreme Court issued an extraordinary stay on Oct. 19. See, e.g., Richard Franks @ Legal Planet. HT @ Flannery Rogers.]
[UPDATE: Joel Stronberg at Resilience reported that despite the earlier Roberts stay, SCOTUS issued an order on November 2 clearing the way for Juliana to go to trial.]
[UPDATE: Juliana returns to oral argument in the Ninth Circuit in Portland, Oregon, on June 4, 2019. Track the case at Climate Case Chart, which explains: "The government [appellant argues] that the plaintiffs lacked
standing and that their lawsuit was not a cognizable case or controversy
under Article III of the Constitution. The government contended that a 'quick look at the climate change issues and actions pending before
Congress and the Executive Branch'—including the Green New Deal, carbon
tax legislation, and the replacement for the Clean Power Plan—'confirms
that Plaintiffs have petitioned the wrong branch.' The government also
argued that the plaintiffs were required to proceed under the
Administrative Procedure Act and that their constitutional claims failed
on the merits."]
[UPDATE: The Dutch Supreme Court upheld the outcome in Urgenda on Dec. 20, 2019.]
[UPDATE: On January 17, 2020, the Ninth Circuit dismissed Juliana for failure of standing. An appeal to the U.S. Supreme Court is inevitable, but extremely unlikely to succeed. The case is Juliana v. United States, No. 18-36082.]
In 2012, fire ravaged a textile factory in western Karachi, killing 260 and injuring 32. The fire occurred only hours after a shoe factory fire in Lahore killed scores, and two months before the Dhaka fire in Bangladesh killed more than 100 and injured 200. The Karachi fire is now the subject of civil litigation in Germany, taking advantage of a federal law that does what human rights advocates would like to see happen—but probably won't—under the U.S. alien tort statute, 28 U.S.C. § 1350.
These recurring factory tragedies have short half-lives in western media, owing to time-honored if callously objective journalistic measures of relevance (e.g., Jacoba Urist in The Atlantic). But the connection between these deaths and our daily lives in the west runs much deeper. These deaths represent just one adverse consequence of fast fashion, the global commercial trend that gives us retail clothing at an affordable cost that dramatically undervalues human and environmental externalities. My friend and colleague Nick Anguelov (Twitter) speaks powerfully on this subject and wrote about it in his 2015 book, The Dirty Side of the Garment Industry (CRC Press, Amazon) (see also Nick at UIA, on this blog).
Claudia Müller-Hoff and Carolijn Terwindt, advocates with the European Center for Constitutional and Human Rights, recently highlighted the German case for the Oxford Human Rights Hub and Law of Nations blogs. As they explain, a decision is now anticipated on claims in Dortmund by four plaintiffs against KiK, a clothing retailer that was the principal customer of the Karachi factory. Forensic architects in the U.K., Goldsmiths at the University of London, produced an unsettling and damning video that aided the plaintiff's case, published online two months ago.
A meaningful "win" for plaintiffs came once already in the court's preliminary ruling to admit the case under a German federal law, adopted in December 2016, the "National Action Plan on Business and Human Rights." The law represented implementation in the EU of the U.N. Guiding Principles on Business and Human Rights, which are, in turn, an instrument of the corporate social responsibility movement and under the umbrella of the U.N. Sustainable Development Goals.
The German law, as reported by Müller-Hoff and Terwindt, states: “Anyone who considers that his or her rights have been infringed in
Germany by the actions of an enterprise can make claims before the civil courts.” The law is heralded as an important advancement for human rights protection in the vein of universal jurisdiction, though it reasonably does require a jurisdictional connection to Germany.
The KiK case has a parallel in the U.S. alien tort case currently pending in the U.S. Supreme Court, Jesner v. Arab Bank (SCOTUSblog). Jesner was heard in oral argument in October; see this excellent analysis by Amy Howe. The dispute in Jesner focuses principally on whether the alien tort statute applies to corporations. Meant to give U.S. courts jurisdiction over violations of international law, probably to protect commerce, the statute dates to the Judiciary Act of 1789, when corporations and international law were both very different from what they are today.
The U.S. Supreme Court has evidenced reluctance to construe the statute as broadly as its text might suggest in contemporary terms. Previous case law established that the statute cannot reach a "foreign cubed" case—foreign plaintiff, foreign defendant, and foreign soil—but myriad questions remain. Since the 1980s, human rights advocates have championed the alien tort statute as an appropriate mechanism to protect human rights abroad. The WNYC podcast More Perfect did an outstanding episode in October on the history of the statute: Enemy of Mankind. (Amy Howe also wrote a good summary here.) For the skeptical view of Jesner's and the statute's viability in this vein, see an excellent op-ed by Professor Samuel Estreicher in the New York Law Journal in January.
There has been some speculation that the Court might duck the corporate liability question in Jesner by ruling instead that the case is foreign cubed. And there lies the interesting parallel to KiK. The plaintiffs in Jesner seek to hold Amman-based Arab Bank liable for financing terrorism in Israel and Palestine. To satisfy the "touch and concern"-the-United-States jurisdictional test, plaintiffs-petitioners rest their case on a rather thin reed: that a U.S. office of the bank had a hand in laundering funds for Hamas. In Germany, the only link to German jurisdiction is KiK's role as principal buyer from the Pakistani factory. It's hard to imagine such a connection supporting liability in conventional tort analysis in American law; think of Apple's more-moral-than-legal responsibility for working conditions at Chinese Foxconn.
The German law certainly steps out in liability exposure in a way that American law does not permit. If the alien tort statute is not an appropriate vehicle to effect human rights accountability in the American private sector, and subsequent legislation is not forthcoming, the United States will be increasingly divergent from the EU in relying on market forces alone to ensure corporate social responsibility. And as Shankar Vedantam of The Hidden Brain reported on NPR, the free market might not cut it.
[UPDATE: On April 24, 2018, the U.S. Supreme Court held, in Jesner v. Arab Bank, 5-4, that foreign corporations may not be held liable under the U.S. Alien Tort Statute.]
I prepared this map for the Inter-Disciplinary.Net conference, Sport: Sport Places, Money, and Politics, the 5th global meeting of the Sport Project: Probing the Boundaries, this week at Mansfield College, Oxford. The map shows the movement of the FIFA Men's World Cup since the United States in 1994, illustrating FIFA's deliberate campaign to globalize the tournament and the sport.
In my talk yesterday, I traced the marriage of FIFA and human rights from Football for Hope investments in World Cup 2010 South Africa, to World Cup 2014 Brazil; on to World Cup 2018 Russia and World Cup 2022 Qatar; and at last, to a World Cup 2026 that might embrace the U.N. Guiding Principles on Business and Human Rights in the manner proposed by Professor Ruggie.
Daunting challenges are presented with respect to international legal norms on housing, labor, sexual identity, racism and equality, due process and criminal punishment, and religious and expressive freedom. FIFA's extreme demands on host countries for infrastructure development, commercial protectionism, and security have made tournament hosting more easily the province of authoritarian regimes than of Western-style democracies, and that tendency works at cross-purposes with the incorporation of human rights norms in the Western legal tradition.
