Saturday, June 30, 2012

'Nuff said

(Taking context-optional note of thought-provoking quotes)
'Especially when its acquisition may have been made possible by tragedies such as the Holocaust, Cambodia's killing fields or even the more recent looting of the Baghdad Museum during the Iraq war, the real issue is why any collector or museum would want to possess stolen art?'

– Our colleague Tess Davis, Executive Director of the Lawyers' Committee for Cultural Heritage Preservation, in a commentary that she co-authored with Mark V. Vlasic, Senior Fellow and Adjunct Professor of Law at Georgetown University. The commentary, which discusses a case on which we've previously posted, is headlined "Should Cambodian 'blood antiquities' be returned?" The authors' answer is a resounding "yes."

On June 30

On this day ...
... 1980, in Filártiga v. Peña-Irala, a decision available at 630 F.2d 876, a panel of the U.S. Court of Appeals for the 2d Circuit held that a statute initially passed in the 1st Judiciary Act of 1789 authorized Paraguayan nationals to seek damages for the torture of their brother (left), in Paraguay, at the hands of a Paraguayan official. (photo credit) The decision gave rise to many more Alien Tort Statute cases. At 1st, cases followed Filártiga's single-torturer-thug paradigm. Over time, however, plaintiffs sued both individual defendants of much higher rank and legal-person defendants, such as corporations. This led to the defense pushback about which we've frequently posted, and to the Kiobel litigation now in the U.S. Supreme Court.

(Prior June 30 posts are here, here, here, here, and here.)

Friday, June 29, 2012

'Grrls, others on challenge in ICC trial of mass rape

Can the International Criminal Court sustain a conviction for the underlying crime of mass rape without testimony from victims?
This question – labeled "The Mass Rape Issue" – is currently addressed on the Human Rights & International Criminal Law Forum. Included are expert opinions from 3 IntLawGrrls contributors – Kelly Askin (Open Society Justice Initiative), Ruth Wedgwood (Johns Hopkins University) and yours truly, Anne-Marie de Brouwer (Tilburg University) – along with Catharine MacKinnon, Michigan Law Professor and ICC Gender Advisor, and Northwestern Sociology & Law Professor John Hagan.
According to the Forum's website:
'This Forum is run by Dr. Richard H. Steinberg of the Sanela Diana Jenkins Human Rights Project at UCLA School of Law with the support of the Office of the Prosecutor of the International Criminal Court. The purpose of the Forum is to allow members of the legal community, governments, academics, and others to debate complex issues of international criminal law faced by the Office of the Prosecutor in the course of its work at the ICC. Membership and participation in this Forum are open to everyone. We welcome you to express your opinion, and we request a civil debate which directly addresses the legal issue set forth in the current question....
'The Forum will deal with one substantive legal issue at a time in the form of a question – we anticipate addressing five questions a year. The questions are developed jointly by the ICC OTP and UCLA Law. Some of the world’s preeminent legal experts on the issue raised by the questions will be invited to give their opinions. The relevant decisions of the Prosecutor or the Judges of the ICC will also be included. Those opinions, in turn, provide a strong foundation for further online discussion.'

You can participate in the discussion by going to the Forum’s website here.

On June 29

On this day in ...
... 1974, in Toronto, Kirov Ballet star Mikhail Baryshnikov defected from the Soviet Union just after his company completed its final Canadian tour performance. Then 26 years old, Baryshnikov (left) ran 3 block and jumped into a car waiting for him. (credit for circa-1970s publicity still) Despite political overtones during that Cold War era (video here), Baryshnikov told the Globe and Mail dance critic that "his decision was an artistic, not a political, choice" -- "that he wanted the freedom to dance with some of the best ballet companies in the West." As described here, this 'Grrl's all-time favorite dancer went on to do just that, and also to lead his own companies, in ballet and modern dance as well.

(Prior June 29 posts are here, here, here, here, and here.)

Thursday, June 28, 2012

Health care law upheld

Chief Justice Roberts makes it 5 to sustain the health care mandate.
Follow SCOTUSblog's live blog from the courtroom here and now.
The 193-page judgment is available in full here.

Honoring Balance

As described in Diane's Sunday post, Anne-Marie Slaughter's Atlantic article, Why Women Still Can't Have it All, gets to the heart of the debate about work-life balance, and offers thoughtful prescriptions for a "national happiness project." The article has provoked much thought and chatter, and in particular prompted me to think about those lawyers and law professors who have served as models for me in the realm of work-life balance. 
In this profession, I fear, such role models have been few and far between.  As a law student at Yale in the late 1990s, only ten of approximately sixty faculty were female; not a promising environment for work-life balance.  Similarly, as a lawyer at a big law firm and a civil rights non-profit, I looked up at the women above me and of most of them thought "I don't want to be that person who sacrifices her family life for her career."
Luckily, my experience in legal academia has been a different story, one of female and male colleagues alike who have supported me through the many challenges that face a working mother of small children.  Indeed, one of my favorite aspects of this blog is the implicit understanding of the importance of these demands.
Here at IntLawGrrls, we celebrate our transnational foremothers, so why not our living role models who have given us the courage to stake out our own work-life balance?
I'll start with one of my own, and hope that contributors and readers will join me in honoring the women and men who've been a model of balance in their lives.
As a law student, I often wondered how I would balance a demanding career with motherhood.  My own mother was a fabulous parent, but as a stay-at-home mom, the challenges she gracefully overcame were very different from those I would face. 
In my second year of law school, I had the good fortune of landing in the immigration clinic, where Jean Koh Peters was my professor and supervising attorney.  To my delight, in an environment where it seemed that nobody survived on more than three hours of sleep, Jean openly declared that she needed at least eight hours of sleep to function optimally.  As a dedicated eight-hour sleeper, this was music to my ears. 
More importantly, Jean arrived at the office promptly at 8:30 am each morning and left just as promptly at 4:30 pm.  She was not available by e-mail or by telephone outside of those hours, and made it known that these were her family hours, and her time with her family was not to be interrupted by work.  Jean is no slacker; apart from running two clinics, she has written numerous articles and the definitive textbook in her field, won a teaching award, and written a report on comparative law and practice in child protective proceedings.
At last, here was a person I could hope to be; a scholar, a wonderful teacher, a public interest lawyer, and perhaps most importantly, a great mom. 
Reflecting on Jean's choices through the lens of Slaughter's article: She has tailored her own work schedule to fit the needs of a good parent and clearly professed these work-life choices to her students, helping us to stake out those same boundaries in the future.  All in all, a significant contribution to the national happiness project, and to the ongoing happiness of those of us who were fortunate enough to have her as a professor and mentor. Thank you, Jean!
Who's your work-life balance mentor?  We welcome comments and posts honoring women and men who have made Slaughter's recommendations a reality in your life.

Go On! New U.S. Model Investment Treaty

(Go On! is an occasional item on symposia and other events of interest) 
The Vale Columbia Center on Sustainable International Investment and the newly launched Center for International Commercial and Investment Arbitration (CICIA) will host an "off-the-record" discussion of the 2012 US Model Bilateral Investment Treaty (BIT) on July 16. 
The new Model BIT was released by the U.S. government in April of this year after a three-year review process of the previous model, which had been adopted in 2004. The VCC and CICIA are hosting this event to discuss the 2012 Model BIT and how it differs from the 2004 model, and to explore the implications of those differences for investors, governments, and other stakeholders that might be affected by ongoing and future treaty negotiations. Confirmed panelists are: 
Daniel Bahar, Director of Investment Affairs, Office of the US Trade Representative; 
Michael Tracton, Senior Negotiator for Investment Treaties, US State Department; and
Thea Lee, Deputy Chief of Staff, AFL-CIO; co-chair of Subcommittee on Investment of the State Department’s Advisory Committee on International Economic Policy
The discussion will be moderated by Anthea Roberts, a Visiting Professor at Columbia Law School. The discussion is the first event to be hosted by the CICIA, which was established this Spring to further the teaching and study of international arbitration. 
The event will take place on July 16th from 12:00 to 1:30 PM at Columbia Law School, 435 W. 116th Street, in room 103. Lunch will be served. For questions, contact Lise Johnson at  RSVP here

On June 28

On this day in ...
... 2004, through its appointed Coalition Provisional Authority administrator, Paul Bremer, the United States transferred Iraqi sovereignty back to the people of Iraq.  The BBC reported that the Baghdad ceremony was "low-key," and had been advanced a couple days "in an attempt to prevent the occasion being marked by bloodshed." The final convoy of U.S. troops would not leave the country until the end of December 2011. (credit for image of Iraqi flag in effect 2004-2008)

(Prior June 28 posts are here, here, here, here, and here.)

Wednesday, June 27, 2012

Help Steer OECD Investment Dispute Discussion

The OECD’s Freedom of Investment Roundtable is inviting public comments on a scoping paper on investor-state dispute settlement. (photo credit for OECD logo) The FOI Roundtable is an intergovernmental forum that seeks to help governments design policies that balance openness to international investment with legitimate regulation in the public interest. The scoping paper aims to define the scope of the Roundtable’s future work by identifying important issues. It is structured as follows:
► First, it compares investor-state dispute settlement to other international dispute settlement systems and discusses its interaction with domestic legal systems and policy-making processes;
► Second, it discusses policy issues relating to access to justice, costs, remedies, enforcement, third party financing, arbitrators, forum and treaty shopping, and consistency; 
► Third, it summarizes results from an OECD survey of dispute settlement provisions of 1660 bilateral investment treaties, documenting variations in treaty practice across countries and across time.   
Each section of the scoping paper proposes issues for discussion. (credit for photo at right: promotion poster for Marshall Plan, administered by OECD predecessor)  The OECD invites comments on these issues and proposals for additional investor-state dispute settlement issues for discussion. Unless requested otherwise, comments received will be posted on the OECD website and provided to the governments participating in the Roundtable. The paper is available on the OECD’s website. The deadline for comments is 23 July 2012.

Look On! Film featuring IntLawGrrls - PBS tomorrow

(Look On! takes occasional note of noteworthy productions.)

A 2011 documentary about the quest for human rights accountability in Guatemala makes its television début this Thursday.
Titled Granito: How to Nail a Dictator, the film was made by IntLawGrrls contributor Pamela Yates. As she described it in a prior IntLawGrrls post, Granito, which refers to the "grain of sand" contribution that every person can make to social change,
'is part political thriller and part exploration of a strange intersection of law and art. It’s a story of dark deeds, juxtaposed with the inspiring power of collective action in a quest for justice. It’s the story of intertwined destinies, and a love letter to the next generation of human rights filmmakers.'
It is, specifically, the story of how a genocide case was built against Guatemala's President, General Efraín Ríos Montt. In addition to Pamela's pivotal interview of the general, there was much hard work by IntLawGrrl Naomi Roht-Arriaza, an Advisory Council Member at the San Francisco-based Center for Justice & Accountability, as well as Almudena Bernabeu and others at CJA, a nongovernmental organization whose Executive Director is another IntLawGrrls contributor, Pamela Merchant.
Proceedings against Ríos Montt continue, as Naomi posted not long ago.
On many PBS stations Granito will air at 10 p.m. this Thursday, June 28 (check local listings here), and it will also be viewable online here this Thursday and Friday through July 28 August 20, 2012.

Write On! ABA/AALS criminal justice workshop

(Write On! is an occasional item about notable calls for papers)
Papers on any topic in criminal law, criminal procedure, or criminal justice – including international and comparative topics – are being sought for a scholarly papers workshop to be held in D.C. on October 25, 2012. Participants will present their work in a roundtable format, and abstracts or drafts will be shared among presenters and discussants in advance of the workshop.
The workshop is part of a 2-day joint conference that the American Bar Association and the Association of American Law Schools are sponsoring at the Washington Court Hotel. Workshop presenters will also be required to attend the criminal justice panels the following day, October 26.
Abstracts of no more than 500 words should be e-mailed to both Northern Kentucky University Law Professor Michael J.Z. Mannheimer at and University of Arkansas Law Professor Laurent Sacharoff at (E-mail either one of these organizers if you have any questions about the call.) Deadline for submitting abstracts is August 15, 2012.

'Nuff Said

(Taking context-optional note of thought-provoking quotes)

'I can't wait until people like me are unnecessary.' *

-- In response to the interviewer's question about whether she would seek the Burmese presidency, Aung San Suu Kyi (left) said she thinks that what the people want is a government, leadership, adding that ideally, people like her will soon be out of a job.

*My rough translation back from the interpretation of Suu Kyi's remarks.The podcast of the interview should soon be available here, in the slot for the June 27, 8:20 a.m. invité.

On June 27

On this day in ...
... 1977 (35 years ago today), the Republic of Djibouti won independence from France, which since the early 19th century had held the territory, located in the Horn of Africa, as a colony known initially as French Somaliland and later as the French Territory of the Afars and Issas. Today this coastal desert state (flag at right), slightly smaller than the U.S. state of Massachusetts, has a population of more than three-quarters of a million persons.

(Prior June 27 posts are here, here, here, here, and here.)

Tuesday, June 26, 2012

Welcoming Madhavi Sunder

It's our great pleasure today to welcome Madhavi Sunder (left) as an IntLawGrrls contributor.
Madhavi is Professor of Law at the University of California, Davis, where her research and teaching focus on domestic and international intellectual property, law & cultural studies, cyberlaw, and women's rights. She's been a Visiting Professor of Law at the Yale Law School, the University of Chicago Law School, and Cornell Law School, and was named a Carnegie Scholar in 2006. Madhavi has published articles in the Yale Law Journal, the Stanford Law Review, the California Law Review, and Law and Contemporary Problems, among others.
Today, Madhavi contributes the post below about her new book, From Goods to a Good Life: Intellectual Property and Global Justice, just published by Yale University Press.
Madhavi dedicates her post to Sita Mylavarapu (below right). In her words:
'Born in India in the 1920s, my grandmother Sita was the youngest of five sisters. Each of her elder sisters married in their teens; none was educated beyond secondary school. But Sita attended St. Mary’s College in Madras, where she was elected student body president and became a champion tennis player. She earned a master’s degree in physics from Banaras Hindu University, often called the “Harvard of India.” Sita defied one of the most entrenched of Indian cultural traditions and married for love.
'I wrote a book about intellectual property, but I do not share this story because my grandmother, a professor of physics, was an inventor of things—that is, the traditional subject of intellectual property. I share it because my grandmother was the inventor of her own life. To paraphrase Foucault, “modern man invents himself.” In the modern parlance, my grandmother did not take culture as given, but “ripped and mixed” it to create something new. My grandmother reminds us that innovation law should promote our ability to author our own lives.'
Today Sita joins other inspiring women at IntLawGrrls' foremothers page.
Heartfelt welcome!

Read On! From Goods to a Good Life

(My thanks to IntLawGrrls for the opportunity to contribute this Read On! post describing my new book, From Goods to a Good Life)
From Barbie to Harry Potter, the Beatles to Beyoncé, Hollywood to Bollywood, and Viagra to life-saving AIDS medications, intellectual property now dominates our culture and rules our economy and welfare. Our children grow up in a world of copyrighted characters surrounded by trademarked goods. With the advent of the World Trade Organization and its legal obligations, intellectual property also increasingly affects people across the globe, from Brazil to Bangladesh. Yet the full cultural and economic consequences of intellectual property policies are often hidden. We focus instead on the fruits of innovation—more iPods, more bestsellers, more blockbuster drugs—without concern for what is being produced, by whom, and for whose benefit.
But make no mistake:
Intellectual property laws have profound effects on human capabilities, what Amartya Sen and Martha Nussbaum define as what people “are actually able to do and be.”
The most obvious example is law’s regulation of access to basic necessities, such as textbooks and essential medicines. But the connections run deeper still. Intellectual property laws affect our ability to think, learn, share, sing, dance, tell stories, joke, borrow ideas, inspire and be inspired, reply, critique, and pay homage. In short, intellectual property laws do much more than incentivize the production of more goods. They fundamentally affect the ability of people everywhere to live a good life.
Furthermore, in a global knowledge economy, intellectual property distributes wealth and power and affects global justice. Take the example of one Solomon Linda.
A black migrant worker living in a squalid Johannesburg hostel in 1939, Linda composed a song based on his own childhood experiences protecting cattle from lions in the jungle. The song borrowed the syncopation of American jazz from across the Atlantic and mixed it with an a cappella melody to create what would become Africa’s first recorded pop hit. Linda’s song soon crossed the Atlantic and was reborn, first as “Wimoweh” and later as “The Lion Sleeps Tonight.” It would go on to be recorded over 170 times, eventually finding its way into Disney’s immensely popular film and Broadway production, The Lion King. But while the song eventually produced millions of dollars for Disney and others, Linda died destitute, suffering from a curable kidney disease at the age of fifty-three. One of Linda’s children died of malnutrition and another died of AIDS.
Linda’s story illustrates how intellectual property laws have effects that extend well beyond incentives for creation. Law regulates recognition (or here, misrecognition) of the contributions of diverse people to our global culture, and distributes the material rewards of innovation. A misrecognition of Linda’s contribution led to his inability to pay for food and drugs that could have saved his and his children’s lives; conversely, recognizing Linda’s cultural contribution would have given him the agency to provide for himself and his family. Intellectual property governs the flow of free culture, allowing Solomon to remix American jazz with his own South African music, and yet also raises issues of fair culture. Solomon’s creation was left to the laws of the jungle, free to be exploited by Westerners with more knowledge and power. Finally, Linda’s song reveals the power of culture as a vehicle for mutual understanding, shared meaning, and sociability. “The Lion Sleeps Tonight” is praised as a song “the whole world knows.”
My new book, From Goods to a Good Life: Intellectual Property and Global Justice, highlights the broad social and economic dimensions of innovation and cultural exchange in a global context of sharp inequalities in power and knowledge.
I argue that law must facilitate the ability of all citizens, rich or poor, brown or white, man or woman, straight or gay, to participate in making knowledge of our world and to benefit materially from their cultural production. Democratic cultural production promotes not only economic development from market exchanges in a Knowledge Age, but also human development. Enhancing one’s capacity to participate in cultural production and critique engenders autonomy and equality, learning, critical thinking, sharing, sociability, and mutual recognition and understanding. This book is a call for intellectual property law and legal decision makers to expressly recognize and contend with the plural values at stake in cultural production and exchange.
Read the Introduction to the book and Chapter 7: An Issue of Life or Death. To buy the book, visit Amazon or Barnes and Noble. For more information about the book, please visit my website.

On June 26

On this day in ...
.... 2003, on the annual International Day in Support of Victims of Torture (marked yet again today), U.S. President George W. Bush said in an official statement:
'[T]he United States declares its strong solidarity with torture victims across the world. Torture anywhere is an affront to human dignity everywhere. We are committed to building a world where human rights are respected and protected by the rule of law.
'Freedom from torture is an inalienable human right. The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment, ratified by the United States and more than 130 other countries since 1984, forbids governments from deliberately inflicting severe physical or mental pain or suffering on those within their custody or control. Yet torture continues to be practiced around the world by rogue regimes whose cruel methods match their determination to crush the human spirit. Beating, burning, rape, and electric shock are some of the grisly tools such regimes use to terrorize their own citizens. These despicable crimes cannot be tolerated by a world committed to justice.'
Bush called out "[n]otorious human rights abusers" in, "among others, Burma, Cuba, North Korea, Iran, and Zimbabwe," lauded "Iraq's liberation" by a U.S.-led multinational coalition, and continued:
'The United States is committed to the world-wide elimination of torture and we are leading this fight by example. I call on all governments to join with the United States and the community of law-abiding nations in prohibiting, investigating, and prosecuting all acts of torture and in undertaking to prevent other cruel and unusual punishment.'
Less than a year later, photographs depicting brutality at Abu Ghraib, as well as Administration briefs dubbed the "torture memos," were revealed in the media. Since that time, as described in posts available here, here, and here, few persons have been prosecuted or otherwise held accountable.

(Prior June 26 posts are here, here, here, here, and here.)