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memdFor a number of years now, writings of my colleague Mireille Delmas-Marty have explored the relationships between the globalization of law and the globalization of the economy. Her newest publication proposes to regulate the latter in a way that enhances the former. Specifically, she would criminalize “aggression committed by non-state actors” – read corporations – as a means to encourage states to agree to hold themselves accountable for this international offense.

This provocative suggestion appears toward the end of “Ambiguities and Lacunae: The International Criminal Court Ten Years On,” just published in the Journal of International Criminal Justice by Delmas-Marty, Chair Emerita in Comparative Legal Studies and Internationalisation of Law at the Collège de France in Paris. (photo credit) The essay:

► Begins with “ambiguities” that arise out of the tension between the universalist aspirations of the Rome Statute and the sovereigntist realities of the ICC’s state-based structure.

Among the manifestations of this tension, she writes, is the status of the crime of aggression in the ICC. The international global community, she argues, must not just aim for “restoring peace as a form of reparation, but rather it must seek to establish a long-lasting and sustainable peace.” (p. 557) In her view, states’ Realpolitik must give way to acceptance, by big states as well as small, of the crime-of-aggression amendments adopted at the ICC Review Conference in Kampala, Uganda.

These amendments would regulate only state actors. Entry into force requires ratification by 30 of the ICC’s 122 states parties, as well as an additional state-party vote that may not take place earlier than 2017. As I wrote in A Janus Look at International Criminal Justice (2013), ratifications have been slow in coming. The Rome Statute had secured nearly all the requisite 60 ratifications within the 3 years following its adoption; in contrast, as of today, 3 years after the Kampala Conference, only 7 states have ratified the crime-of-aggression amendments. A new addition, Germany, merits particular note not only because of its history, but also because of its status as a large-power NATO member. Yet as Delmas-Marty writes in her JICJ article, most states seem to remain “[r]eluctant to transfer to international judges the power to qualify acts of aggression.” (p. 558)

► Shifts to exploration of “lacunae” (pp. 558-61). Of particular concern to Delmas-Marty is the status of globalized nonstate economic actors vis–à–vis the ICC. Citing Nuremberg-era cases involving industrialists, such as IG Farben, Flick, and Krupp, she states:

‘Corporate criminal involvement in international crimes did not end with the Second World War.’

Sometimes, she continues, “corporations are involved in the commission of serious crimes …. And yet, the Rome Statute does not contemplate the criminal responsibility of legal persons ….” Especially when corporations bear responsibility for fueling logs-of-war-promo2-view-1.599.307.sconflicts through “alliances with warlords in order to obtain scarce resources (such as diamonds, gold, timber or oil),” (photo credit) Delmas-Marty urges amending the Rome Statute to hold nonstate economic actors accountable for aggression:

‘By first outlawing armed conflicts commenced by criminal organizations,  the resistance of states could be overcome with the purpose of recognizing a global community whose interests are pursued  by all in the name of a sovereignty that, rather than being solitary, is grounded on solidarity. Following such an approach, international criminal justice could perhaps apply not only to the vanquished but also to the victors. In other words,  to the major powers themselves.’

These are ambitious goals. Even at Nuremberg, industrialists were convicted of aggression solely in the Krupp trial, and that result was reversed  on review. (See here.) Still, Delmas-Marty’s article provokes thought on how to hold to account both state and nonstate authors and agents of atrocities.

powerobamaNews of Samantha Power’s nomination as U.S. ambassador to the United Nations prompted me to read her biography of that 68-year-old international organization. In truth, the book is a biography of the top diplomat killed 10 years ago when a car bomb gutted U.N. headquarters in Baghdad. Yet because that diplomat had effectively grown up alongside the United Nations – he was born fewer than 3 years after its Charter entered into force, and he would serve under 5 of its 8 Secretaries-General – Power’s Chasing the Flame: Sergio Vieira de Mello and the Fight to Save the World (2008) tells the life story of both the man and the organization. The book thus indicates what Power thought of the United Nations back when she was advising then-Senator Barack Obama on foreign policy.

Emphasized throughout Chasing the Flame is Vieira de Mello’s transformation from a man of humanitarian action alone to one who comes to realize, indeed to embrace, the significance of politics in humanitarian endeavors. Recounting his late-1980s role in repatriating Vietnamese refugees, Power wrote with disapproval of Vieira de Mello’s decision to “downplay his and the UN’s obligation to try to shape the preferences of governments” (p. 69, emphasis hers). She likewise criticized his early ’90s stance of neutrality while serving in UNPROFOR, the hapless U.N. Protection Force mission in Bosnia: “impartial peacekeeping between two unequal sides was,” she wrote, “its own form of side-taking” (p. 179). In contrast, Power conveyed approbation when she wrote that by the late 1990s, after working to return Hutu refugees to Rwanda, Vieira de Mello “was now convinced that UN officials would better serve the powerless if they could find a way to enlist the power of the world’s largest countries” (p. 219). According to Power’s epilogue, the key to harnessing that power is flexibility (p. 516-17):

power‘While many have responded to today’s divisions and insecurities with ideology, Vieira de Mello’s life steers us away from one-size-fits-all doctrine to a principled pragmatism that can adapt to meet diffuse and unpredictable challenges.’

The United Nations, she added (p. 519), has a critical role to play:

‘UN civil servants had to become more self-critical and introspective, accepting what had taken Vieira de Mello years to learn: that they are agents of change themselves and not simply the servants of powerful governments.’

In this book as in A Problem From Hell: America and the Age of Genocide (2002), Power put much blame on the U.S. government. The United States’ perception of its own self-interest often appeared short-sighted and inept. U.S. officials’ resistance to the International Criminal Court won them no favor. Ineptitude was especially evident in the U.S.-led invasion and occupation of Iraq – events that would place Vieira de Mello and other humanitarians in Baghdad on the fateful date of August 19, 2003.

Power herself began working for the U.S. government not long after Chasing the Flame was published. As Special Assistant to President Obama and Senior Director for Multilateral Affairs and Human Rights at the White House-based National Security Council, she spent years working on issues at the heart of her earlier writings.  (An account of a central effort, establishment of an Atrocities Prevention Board made up of officials from various U.S. agencies, was the subject yesterday of a New York Times article.) She’s reported to have played a pivotal role in the U.S. decision to intervene in Libya based on U.N. Security Council resolutions that invoked a concept discussed in her book, the responsibility to protect; to be precise,at p. 528 and elsewhere, Power stressed Vieira de Mello’s espousal of the emerging doctrine. These experiences may have adjusted Power’s views on the relation between the United Nations its member states. Yet most likely her 5 requirements for foreign policy success, distilled from her account of Vieira de Mello’s life, remain a constant. Quoted in full from p. 523, they are:

  • Legitimacy matters, and it comes both from legal authority or consent and from competent performance.
  • Spoilers, rogue states, and nonstate militants must be engaged, if only so they can be sized up and neutralized.
  • Fearful people must be made more secure.
  • Dignity is the cornerstone of order.
  • We outsiders must bring humility and patience to our dealings in foreign lands.

sotomayorMy Beloved World is a gem of a memoir. That’s not the least because of who wrote the 300-page volume released this past January. The author is 58-year-old Sonia Sotomayor, who’s served as a Justice of the U.S. Supreme Court since 2009. Her recollections display a candor rare in books by high-ranking public officials.

There is, for instance, her admission of childhood relief that the premature death of her alcoholic father might end conflict and bring stability to her household, as well as her account of the ignorance with which she and her high school sweetheart entered a marriage that would scarcely last through her college years. And there are moving reflections on her subsequent life as a single person. At page 232, Sotomayor tells how various factors, including the Type 1 diabetes with which she’s coped since age 7, influenced her decision not to become a parent:

‘My nephews are all the proof I could have needed of how emotionally satisfying adoption might have been. Still, there remained the fear that I might not be around long enough to raise a child to adulthood. Ultimately, the satisfaction of motherhood would be sacrificed, though I wouldn’t say it was sacrificed to career.’

At the heart of Beloved World are Sotomayor’s stories of growing up in the South Bronx in the ’60s, in a socially conservative, extended family. Many of her relatives had journeyed north from their native Puerto Rico. Family life swirled around their matriarch, Abuelita, the grandmother with a gift for giving love and a penchant for the late-night seance.

This was a world where Spanish dominated – except in the classrooms, where English-speaking nuns kept order by corporal punishment. Sotomayor writes frankly of the routine reality of beatings and fights, in homes and schools alike. She expresses approval that a recent visit back to Blessed Sacrament showed that teachers had adopted “a more nurturing approach since abandonment of the rod,” and then remarks,”Every generation has its own way of showing it cares.” (p. 88)

Her narrative resonates beyond the subculture it describes. Having grown up not many years later among Italian relatives in northwest Chicago, I found much in Beloved World that rang familiar: how acculturation pulled at homeland languages and lifestyles; how workplaces and parishes regulated life more directly than more distant governments; how diabetes or drinking or drugs or disability could bring shame and devastation; how some children managed to succeed in the larger world (often to their families’ bewilderment), while others found failure in every world they inhabited.

Sotomayor returns again and again to this last question of resilience – of how some children move forward even as others stumble. The book’s title hints at her answer: the foremost factor in success is love. Recalling her relationship with Abuelita, Sotomayor writes at page 16:

‘I have come to believe that in order to thrive, a child must have at least one adult in her life who shows her unconditional love, respect, and confidence.’

There is more, Sotomayor makes clear. Given the gift of “selfless love” (p. 254), the child must build on it, must learn to ask help from others. “[D]on’t be shy about making a teacher of any willing party who knows what he or she is doing,” she urges (p. 72). Sotomayor thus provides in Beloved World a string of inspiring stories about how and whom she asked, as well as the often-positive result of her asking for help. (Aspiring lawyers will welcome the consequent practice tips.)

All must be done in service of community. “There are no bystanders in this life,” Sotomayor insists (p.256); to the contrary:

‘Our humanity makes us each a part of something greater than ourselves.’

shipsAMSTERDAM – Newly reopened following a 10-year renovation, the Rijksmuseum now tells tales of globalization. It is thus far different and more provocative than the art-house of old.

A gallery named “The Netherlands Overseas” confronts visitors with the reach of the Dutch, who established the multinational Dutch East India Co. in 1602 and ranged widely for centuries thereafter. Adorning the gallery’s walls are portraits of Dutch ambassadors. One rides horses with a pasha in Persia. Another poses in Jakarta with his half-Japanese wife. In showcases below, an array of artifacts – the blue and white porcelain renowned in China and Delft alike, woolen caps worn by Dutch whalers, silverware that once held coffee, tobacco, spices, and spirits.

Throughout the museum Java and Molucca, India and Australia, Suriname and Brazil, North and West Africa, even Norway and Sweden, are invoked. Colonization is evident, not the least in the depictions of servants, some named, some not, beside the Lowlands envoys. Also present is international law, with major treaties marked by medals and epic paintings. Marked by the rijks_camp2013roomful of model ships above, moreover, is the warfare once conducted in the name of commerce and colonialism.

It is in the 20th C. gallery atop the museum that visitors encounter another sobering aspect of world events. The striped jacket at right once was worn by Isabel Wachenheimer, a 16-year-old German whose Jewish family had sought refuge in Rotterdam from the Nazis. After the Netherlands was occupied, all  were deported to Auschwitz, where her parents perished. She would be liberated at Mauthausen, a concentration camp in Austria where a fifth of the inmates were teenagers. Isabel, who became a U.S. citizen in the ’60s, kept her Mauthausen jacket. It’s described in museumspeak as “Germany, after 1938. Rags printed with blue ink, plastic.”

Did regime-change overreach in Libya seal the awful fate that civilians have endured these last years in Syria? A new article in a Beijing-based law journal, China Legal Science, strongly argues “Yes.”

liAmong the 5 permanent members of the U.N. Security Council are 3 from the West – Britain, France, and the United States – plus China and Russia. The latter 2 countries have incurred much criticism for blocking Council action on Syria. ‘Way back in October 2011, for example, the United States’ Permanent Representative to the United Nations, Susan E. Rice, “storm[ed] out” after the latter 2 P-5 countries refused to join what she called “a watered-down resolution” against Syria. Criticism has tended to center around Russia’s commercial and geopolitical relationships with Syria. But the new article, “Responsibility to Protect: A Challenge to Chinese Traditional Diplomacy” (no. 1-2013, pp. 97-120), indicates that other concerns also have been at play. Asserts Dr. Zhu Wenqi, Professor of International Law at Renmin University (formerly a diplomat in China’s Ministry of Foreign Affairs and an attorney in the Office of the Prosecutor at the International Criminal Tribunal for the Former Yugoslavia, and holder of a doctorate from the University of Paris II):

‘The Council’s failure to take action in the Syrian case is because of reflections by China and Russia upon what happened after the resolutions adopted by the Security Council in the case of Libya.’

Zhu cites Resolution 1970 (Feb. 26, 2011), which imposed certain sanctions against Libya and referred the situation to the International Criminal Court, and Resolution 1973 (Mar. 17, 2011), which authorized member states “to take all necessary measures … to protect civilians.” China voted in favor of 1970 and abstained from voting on 1973. In positing “the Libyan authorities’ responsibility to protect” its people, each resolution invoked the responsibility to protect doctrine. With admirable clarity and conciseness, Zhu recounts the 15-year history of that doctrine, by which:

► 1st, each state has a duty to protect its own population; and

► 2d, should a state fail in its duty, the international community has the responsibility to step in and protect the threatened population.

What happened right after adoption of Resolution 1973? NATO mounted a many-month military operation, which ended only after Libya’s longtime ruler, Muammar Gaddafi, was deposed, put on the run, and ultimately killed. The Security Council had not made regime change an explicit aim in either Resolution 1970 or Resolution 1973; a month into the intervention, however, an op-ed by the leaders of the Western P-5 members insisted that Gaddafi “must go, and go for good.” Zhu writes that this ouster effort led China to criticize the resolutions as “pretextual” and as costly in the numbers of civilians harmed.

The Libya lesson has prompted China to resist calls for intervention in Syria, Zhu states. (credit for AP photo above, captioned “Chinese Ambassador to the UN Li Baodong sitting with his hands down as Security Council members vote on resolution to back an Arab League call for Syria’s Assad to step down, Feb. 4, 2012”) What’s more, it has led China to revert to skepticism toward the doctrine of responsibility to protect. In an account that echoes writings of Judge Xue Hanqin on which I recently posted, Zhu sets out not only the value that China places on the sovereignty guarantees in Article 2(4), (7) of the U.N. Charter, but also the relation of that value to the desire to maintain independence from “‘the remnants of imperialist and colonialist oppression'” (quoting the late Wang Tieya). Quoting from this article, Zhu writes that China’s opposition to regime change in Syria is seen as reinforcing the Charter:

‘In the eyes of many Chinese evaluators, China’s attitude toward the Syrian issue actually demonstrated that China “is assuming more responsibilities and obligations” in international affairs.’

Amid this week’s reports that the United States may be backing off from demands for the resignation of Syria’s President, Bashar al-Assad, the article is timely – and its explication of the Chinese legal perspective on global security has value any time.

In “John Paul Stevens, Originalist,” an article published last year in Northwestern University Law Review, I examined how Justice Stevens, during his 34-plus years on the U.S. Supreme Court, had treated the interpretive methodology known as originalism. I wrote of a 1985 speech in which Edwin Meese III, President Ronald Reagan’s Attorney General, “urged adoption of a single standard –  ‘a Jurisprudence of Original Intention’ that would obligate judges to be guided solely by what the Framers chiefshad meant when they selected the words of the Constitution.'” Justice Stevens pushed back in his own speech the same year and in a 1986 lecture, The Third Branch of Liberty. “Stevens,” I wrote, “identified ‘the probable intent of the Framers’ to give to ‘future generations of judges’ the power and duty to check majoritarian abuses of individual liberty.” After examining Stevens’ treatment of history in cases involving the 2d Amendment, my article quoted Stevens’ Five Chiefs: A Supreme Court Memoir 226 (2011):

‘Historical analysis is usually relevant and interesting, but it is only one of many guides to sound adjudication.’

Though Stevens left the bench in 2010, he scarcely may be called retired. He’s written the just-quoted memoir and several New York Review of Books essays, and given a host of speeches. The latest of these was delivered in Louisville, Kentucky, a couple weeks ago – just 2 days before Stevens celebrated his 93d birthday, to be exact. Entitled “Glittering Generalities and Historic Myths,” it illustrates the role that history continues to play in Stevens’ thinking about law. Stevens identified instances in which the Court contributed to the making and maintenance of myths, some of which, he said, “have a longer life expectancy than the truth.” Identification of each myth implied disapproval of the decisions that had relied on them.

► Thus incurring criticism was the Court’s recent 2d Amendment cases; in particular, the most recent, McDonald v. Chicago (2010).

As I described beginning on 757 of my “Originalist” article, McDonald marked the last case in which Stevens wrote. His solo opinion drew retort from his longtime sparring partner on matters of constitutional interpretation, Justice Antonin Scalia. Stevens’ Louisville speech challenged as myth 2 views of history that underlay the majority’s invalidation in McDonald, on federal constitutional grounds, of a local gun-control ordinance: 1st, the view that the Court got it wrong in Slaughter-House Cases (1873); and 2d, the view that the Court got it right in  United States v. Cruikshank (1875).

Justices were not wrong but right in upholding local health laws in Slaughter-House, Stevens wrote, though “unfortunately” they rested their decision on a little-used, and in his view not-useful, constitutional ground. They were not right but wrong, Stevens ColfaxMassacreadded, to set aside in Cruikshank 3 convictions for the April 13, 1873, killings of scores of African-American men in Colfax, Louisiana. (image credit) (As Stevens noted, Charles Lane depicted these events in The Day Freedom Died (2009).) The release of the defendants in Cruikshank enabled a “myth that they were heroes fighting for a noble cause,” Stevens wrote, not to mention a myth “that laws that failed to preserve white supremacy were ‘misrule.'” Stevens’ speech endorsed the lower court’s articulation of state action doctrine. In an expansive rendering that anticipated the next century’s human rights jurisprudence, that court, in United States v. Hall, 26 F. Cas. 79, 81 (C.C.S.D. Ala. 1871), had defined denial of equal protection as follows:

‘Denying includes inaction as well as action, and denying the equal protection of the laws includes the omission to protect, as well as the omission to pass laws for the protection of his fundamental rights, as well as the enactment of such laws.’

► Also drawing Stevens’ attention were 2 decisions dating from the World War II era – an era that, as I have written here and here, informed Stevens’ own jurisprudence in the aftermath of the terrorist attacks against U.S. targets on September 11, 2001.

quirinAddressed 1st was Ex parte Quirin (1942), in which the Court unanimously approved secret-tribunal convictions of 8 Germans who’d landed on U.S. soil with the aim of committing sabotage. Among the 8 was a man presumed a U.S. citizen, so that in post-9/11 legal discourse the judgment has been cited as authority that citizens may be treated as “enemy combatants” and thus deprived of a panoply of rights. Quirin mythology also includes, Stevens wrote, “the mythical inference that their apprehension was the product of superior intelligence work by the FBI.” (image credit) In fact, citing Jess Bravin’s Terror Courts (2013), Stevens noted that the FBI learned of the plot only when a conspirator turned himself in.

Discussed 2d was In re Yamashita (1946), in which a majority of the Court sustained an overseas U.S. military commission’s capital conviction of the general who, as Stevens wrote, “had assumed command of the Japanese forces in the Philippines shortly before the war ended.” Today thyamae decision is the taproot for the doctrine of command responsibility, by which superiors are held liable for failing to prevent their troops from committing atrocities. But it did not win the favor of Stevens, who clerked for a Yamashita dissenter, Justice Wiley B. Rutledge Jr., a couple years later. Stevens’ speech cited Yamashita’s Ghost: War Crimes, MacArthur’s Justice, and Command Accountability (2012), in which author Allan Ryan dispels “the myth that General Yamashita was a war criminal because he failed to prevent the troops under his command from committing unspeakably cruel atrocities.” In fact, Ryan’s book contends “not just that the General did not authorize any of the atrocities – but that he did not even know about them and probably could not have prevented them even if he had ….” (credit for photo of trial of Yamashita) The former Justice concluded:

‘If the prosecution’s theory of the case were applied to the American Army in the Viet Nam conflict, General Westmoreland would receive the death penalty for failing to prevent the My Lai atrocities.’

tallinnThe Luddite in me casts a skeptical eye at arguments that some new technology is not regulated by old laws. After teaching cyberwar in a Laws of War class, for example, my takeaway was the key to resolving many legal questions is not to make new laws but rather to adapt laws on the books as needed (and only to the extent that adaption is needed). Thus it’s heartening to find kindred spirits among the drafters of Tallinn Manual on the International Law Applicable to Cyber Warfare. As Manual editor Michael Schmitt, who leads the International Law Department at the U.S. Naval War College, told an AP reporter:

‘”Everyone was seeing the Internet at the ‘Wild, Wild West.’ What they had forgotten is that international law applies to cyberweapons like it applies to any other weapons.'”

The 320-page Tallinn Manual, to be released in print on March 31 and already available in electronic format, is the product of 3 years of study by a score of legal experts, among them present and former members of the military as well as law professors and representatives of the International Committee of the Red Cross. The manual’s focus is cyberwarfare (but not economic cyber espionage, subject of the new ASIL Insight available here). Rules of cyberwarfare are analyzed against the backdrop of numerous international law concepts and doctrines, for example: sovereignty and jurisdiction; state responsibility; use of force and self-defense (the latter reportedly a topic of debate among the experts); and law of armed conflict issues including participation in the hostilities, permissible objects of attack, and means and methods of warfare.

This brand-new text is the instant go-to reference on the topic.

unescoThis International Women’s Day offers an occasion to celebrate the 20th anniversary of Reconceiving Reality: Women and International Law, an examination of international law, politics, and practice through a feminist lens. Perhaps it is better to say “feminist lenses,” given the essays’ embrace of the indeterminacy and dynamism of the contemporary world. (UNESCO image credit)

Edited by Dorinda G. Dallmeyer and published by the American Society of International Law, Reconceiving Reality is based on papers 1st presented at an all-day session that WILIG, ASIL’s Women in International Law Interest Group, sponsored at the Society’s 1993 annual meeting. The volume’s author list is impressive: Hilary Charlesworth, Christine Chinkin, Rebecca J. Cook, Karen Engle, Judith Gail Gardam, Catharine MacKinnon, Moira McConnell, Frances E. Olsen, Robin L. Teske, J. Ann Tickner, and Shelley Wright.

Rereading these essays 20 years on underscores how quickly some things have changed. With war then still raging in the Balkans, authors pondered how the not-yet-in-operation International Criminal Tribunal for the former Yugoslavia would fare. Several worried that sexual violence – already widely reported to be  a tool of that war – would be ignored. Their concerns place in high relief the significance of the ICTY’s eventual rulings on sexual violence, as well as the express prohibitions on sexual and gender-based violence in Articles 7 and 8 of the 1998 Rome Statute of the International Criminal Court.

Some essays could have been written today. That is both a testament to their timelessness and a critique of our times: the issues these essays address continue. No less now than then, the use of force and the meaning of peace, and women’s roles with regard to both, stir intense debate. No less now than then, theory and practice alike struggle with how prevent violence – and, when prevention fails, how to assure that perpetrators will be punished and victims redressed. This is evident in the slogan for this year’s International Women’s Day observance:

‘A promise is a promise: Time for action to end violence against women.’

At IntLawGrrls and elsewhere, colleagues and I have, in recent years, told the stories of  Women at Nuremberg. A 2011 article of mine profiled Cecelia Goetz, who, after becoming the 1st woman to give an opening statement at an international criminal trial, went on to become the United States’ 1st federal bankruptcy judge. American University’s Shana Tabak has published a 2-part series on Grace Kanode, who, in July 1946 in Tokyo, became the 1st woman to appear bdolefore an international criminal tribunal. (See here and here.) And Katherine B. Fite, the U.S. State Department lawyer who helped draft the Nuremberg Charter, is not only the subject of 2 publications (a 2010 article by St. John’s Law Professor John Q. Barrett and a 2012 article by me), but also the namesake of an annual lecture given at the International Humanitarian Law Dialogs.

Not all the postwar pioneers have yet been named, however, and so we have Baltimore attorney Marlene Trestman to thank for bringing another to the fore. She is Bessie Margolin (right). Born in 1909, Margolin’s mother died when she was 4, so that she and her sibling grew up as “half-orphans” in the New Orleans Jewish Orphans’ Home. Her 1930 graduation from Tulane Law School led to research and, in 1933, a doctorate from Yale Law. Soon Margolin found herself the 1st woman lawyer at the federal government’s newly created Tennessee Valley Authority. By 1939 she’d moved to the Wage and Hour Division of the Department of Labor, the beginning of a three-decades career that included argument of 28 Supreme Court cases, plaudits from top-ranking judges, and a slew of awards.  (credit for circa-1950s Department of Labor photo, courtesy of Marlene Trestman) Margolin died in 1996 without ever securing the federal judgeship for which she’d campaigned.

A sliver of that career included the months in 1946 and 1947 that she spent at Nuremberg, Germany. Even as the International Military Tribunal Trial of the Major Nazi War Criminals unfolded at the Palace of Justice, Margolin did the important work of devising the plan for the subsequent trials before the U.S. entity now known as the Nuremberg Military Tribunals. The article’s depiction of Margolin’s dual status, as a serious lawyer and as an oft-invited guest at parties, mirrors stories of Fite and others.

Author Trestman, who lived years later at the same New Orleans orphanage, published a brief account of Margolin’s life last year, in a Journal of Supreme Court History article entitled “Fair Labor: The Remarkable Life and Legal Career of Bessie Margolin.” She’s now at work on a book-length treatment, one that will enrich understanding of the contribution that Margolin and other women lawyers of the last half-century made, both away at Nuremberg and here at home.

elsieAs readers who’ve followed me from IntLawGrrls blog to this new site well know, I’ve devoted much time in recent years to honoring foremothers – women whose life stories are sources of inspiration today,  for women and men alike. Many foremothers were nominated by IntLawGrrls contributors; others came to the fore in our on-this-day or in-passing features; still others, in the research that others and I have done respecting women at Nuremberg and Tokyo post-World War II trials. Some women – for example, the Irish pirate Gráinne Ní Mháille, known to English speakers as Grace O’Malley – have been famous for centuries. Often as not, however, history had obscured these women. It’s been rewarding to bring their stories to light.

It’s a pleasure today to write of Elsie Parrish, a foremother of every working person.

A litigant before the U.S. Supreme Court, hers is a surname that’s found its way into many a law student’s outline. Yet it may not ring a bell, for the student is more likely to recall the landmark 1937 decision – West Coast Hotel Co. v. Parrish – by the first words in that caption. That’s too bad: as Dr. Helen J. Knowles, a Grinnell College political scientist, demonstrates in the article she’s just published in the Journal of Supreme Court History, Parrish’s personal story, and the emphasis put on it by local media, enrich any account of the case. And many accounts exist, given that Parrish’s case marked a watershed in U.S. history: by a 5-4 vote, the Court approved a New Deal-era minimum-wage law, reversing a long trend and putting a stop to President Franklin D. Roosevelt’s plan to “pack” the Court.

Starting it all, the article points out, was Elsie Parrish. In 1935, she was a 30-something, twice-married, once-divorced, mother and grandmother who made her living by cleaning rooms in an upscale hotel in Wenatchee, Washington. (photo credit) When she lost her job and did not receive back wages in line with the state’s minimum-wage-for-women law, she sued. Two years later, she won her case.

Knowles’ article tells of the fight to the Supreme Court and relates interviews Parrish gave with local papers; to one, Parrish said:

‘I am so glad, not only for myself, but for all the women of the state who have been working for just whatever they could get.’

Of interest too is what Parrish, by then a septuagenarian, had to say when America’s 2d feminist wave was at full crest. Interviewer Adela Rogers St. Johns quoted Parrish as follows in her book Some Are Born Great 187 (1972):

‘I was surprised when nobody paid much attention at the time, and none of the women running around and yelling about Lib and such have paid any since.’

In Parrish’s own words, again to Rogers St. John, here’s why she sued her former employers:

‘I had to do it. What they did wasn’t right.’

Acknowledging the ambivalence of some feminists, for the reason that the 1937 victory was cloaked in words of judicial paternalism, Knowles takes issue with Parrish’s claim that “nobody paid attention.” After all,  the case remains a landmark. Indeed, the decision in Parrish paved the way for legislation regulating the workplace for all working women – and men, too.  Knowles’ article, and other accounts in recent years, begin to restore, to the popular understanding of the case, the story of the woman who brought the suit.