education

Executive Branch Lawyering course, from left: Maria Eliot, Wade Herring, Professor Diane Marie Amann, Sarah Mirza, Hanna Karimipour, Jennifer Cotton, Taylor Samuels, Judge David J. Barron, Morgan Pollard, Keelin Cronin, Joe Stuhrenberg

Who decides how America wages war?

What does “commander in chief” mean?

What (national or international) laws govern the United States’ waging of war?

How and by whom are those law identified, interpreted, decided, and implemented?

Those questions and many more arose during the Executive Branch Lawyering course that I just had the honor of co-teaching with David J. Barron, Judge of the U.S. Court of Appeals for the 1st Circuit and also The Honorable S. William Green Visiting Professor of Public Law at Harvard Law School, where he had taught full-time before his 2014 appointment to the federal bench.

My own association with Barron – like me, a former law clerk to U.S. Supreme Court Justice John Paul Stevens – dates to 2008. That year, Barron and I were among the charter contributors to “Convictions,” a legal blog published for a time at Slate. And in 2017 Judge Barron began serving on the Judicial Advisory Board of the American Society of International Law, with which I am affiliated thanks to my editorship of ASIL’s Benchbook on International Law (2014).

For an 18-month period between those years, Barron served as Assistant Attorney General in charge of the Office of Legal Counsel, providing legal advice to then-President Barack Obama and to agencies in the Executive Branch. That experience formed the basis of the 1-credit course that he and I co-taught last week at my home institution, the University of Georgia School of Law.

Our texts included Barron’s 2016 book, Waging War: The Clash Between Presidents and Congress, 1776 to ISIS, as well as The Terror Presidency: Law and Judgment Inside the Bush Administration, a 2009 memoir by Harvard Law Professor Jack Goldsmith, who had led OLC from 2003 to 2004 – plus executive orders, congressional enactments, judicial decisions, and other primary materials.

To prepare for sessions with Judge Barron, a topnotch group of 9 Georgia Law students and I examined a selection of historical moments when Presidents’ war-waging generated tensions, with other branches of government established in the U.S. Constitution and with other stakeholders. Of particular concern were instances related to executive detention in time of war, for example: treatment of British officers held during the American Revolution; General Andrew Jackson’s jailing of a judge who issued a writ of habeas corpus during the 1814 military occupation of New Orleans; and 2 capital military trials, the 1st of an Indiana civilian in the Civil War and the 2d of Nazi saboteurs in World War II.

Sessions with Judge Barron concerned US executive detention and related issues since the terrorist attack of September 11, 2001. The focus was on OLC’s legal, ethical, and practical duties in advising on such policies – and, through careful and extensive role-playing, on how Executive Branch lawyers go about the day-to-day work of giving such advice.

A most valued, and rewarding, teaching experience.

 

Just had a chance to read in full the Marriage Cases – that is, U.S. Supreme Court’s June 26 judgment in Obergefell v. Hodges – and was struck by the degree to which it upends tradition.

No, not that tradition.

What’s striking is not so much the holding that the Constitution guarantees a right to marry that extends to couples regardless of sex. That result has seemed reside in the it’s-only-a-matter-of-time category for a while now.

What’s striking, rather, is that in reaching this result, the Court explicitly revived an interpretive method that views certain constitutional clauses as interlinked.

‘The right of same-sex couples to marry that is part of the liberty promised by the Fourteenth Amendment is derived, too, from that Amendment’s guarantee of the equal protection of the laws,’

14th Amendment 2Justice Anthony M. Kennedy wrote for a 5-member majority. He continued:

‘The Due Process Clause and the Equal Protection Clause are connected in a profound way, though they set forth independent principles. Rights implicit in liberty and rights secured by equal protection may rest on different precepts and are not always co-extensive, yet in some instances each may be instructive as to the meaning and reach of the other. In any particular case one Clause may be thought to capture the essence of the right in a more accurate and comprehensive way, even as the two Clauses may converge in the identification and definition of the right.’

In support of this posited “synergy,” Kennedy cited numerous twentieth-century decisions, among them  Loving v. Virginia (1967), Zablocki v. Redhail (1977), and one I find a super teaching vehicle, Skinner v. Oklahoma (1942). He chose to stick close to the family-related subject matter at hand, and so omitted other examples of this method, such as Griffin v. Illinois (1956), requiring the provision of trial transcripts to rich and poor defendants alike. Each judgment evinces more concern for doing justice than for divining a single-clause source from open-ended terms like “due process” and “equal protection.” Some of these decisions also tend not to devote much time to shoehorning facts into “levels of scrutiny” – a judge-created superstructure not found in the Constitution’s text, and not invoked in last month’s Marriage Cases.

Far from aberrational, these developments follow a trend detectable in many constitutional opinions of the last couple decades. It bears echo to other Kennedy opinions, not to mention the duty to govern impartially posited by Justice John Paul Stevens during his many years on the bench. (Kennedy’s view that the Constitution’s framers intended today’s Court to interpret their words in an evolutive manner likewise jibes with writings of Stevens and another retired Justice, David H. Souter.)

Many law schools follow a format that puts the Due Process Clause in Con Law I and the Equal Protection Clause in Con Law II. That division has made for gaps or overlaps in teaching a number of issues. LGBT rights has been one of them. There are others – such as abortion – and one imagines the list will grow with the Court’s overt resuscitation of this method and others subsumed within what Kennedy calls “reasoned judgment.”

Time for those of us in U.S. legal academia to rethink how we teach constitutional law.

As I wrote in an article published last year, “the fate of children in armed conflict has formed a cornerstone of the ICC‘s early jurisprudence.” That article focused on the 1st case tried by the International Criminal Court — Prosecutor v. Lubanga, a case that ended Monday with the Appeals Chamber’s affirmance (available here) of Trial Chamber judgments convicting and sentencing a Congolese ex-militia leader for conscripting, enlisting, and using children under 15 to participate actively in hostilities.

The statement has a wider application, however. Child-soldiering crimes also were pursued, albeit unsuccessfully, in the next trial, Katanga and Ngudjolo. And a case set for trial next year, Ntaganda, involves not only those crimes, but also charges that the accused ex-leader was responsible for sexual abuse that his troops perpetrated against children under fifteen in the same militia. (New IntLawGrrls post on latter case here.)

reportThere is evidence that this focus will remain an ICC cornerstone, moreover. One example is the ongoing process, in which I am honored to take part, of preparing an ICC Office of the Prosecutor Policy Paper on Children. Another is the 64-page Report on Preliminary Examination Activities 2014, which the Office of the Prosecutor released Tuesday. The Report indicated that crimes against children form a part of the analysis in at least 4 of the 9 pending preliminary examinations, as follows:

Afghanistan: Still under examination are allegations that children have been recruited for and used in armed violence. (¶¶ 81, 89, 97) A doubling of casualties involving children is another stated concern. (¶ 83) Finally, there is the matter of harm done to girls:

‘A second potential case against the Taliban relates to attacks on girls’ education (i.e., female students, teachers and their schools). The Taliban allegedly target female students and girls’ schools pursuant to their policy that girls should stop attending school past puberty. The Office has received information on multiple alleged incidents of attacks against girls’ education, which have resulted in the destruction of school buildings, thereby depriving more than 3,000 girls from attending schools and in the poisoning of more than 1,200 female students and 21 teachers. While the attribution of specific incidents to the Taliban, and in particular the Taliban central leadership remains challenging, there is a reasonable basis to believe that the Taliban committed the war crime of intentionally directing attacks against buildings dedicated to education, cultural objects, places of worship and similar institutions.’

¶ 87; see also ¶ 88. (David Bosco‘s just-published Foreign Policy article on a different aspect of the Afghanistan examination is here, while Ryan Goodman‘s Just Security post on same is here, and Ryan Vogel‘s Lawfare post is here.)

Colombia: The report reiterated a prior finding of “a reasonable basis to believe that war crimes under article 8 of the Statute have been committed … including … conscripting, enlisting and using children to participate actively in hostilities” in violation of Article 8(2)(e)(vii) of the ICC’s Rome Statute. (¶ 109)

Central African Republic: With respect to a matter that moved from preliminary examination to situation under investigation during the course of this year, Office reported a reasonable basis to believe that the same 3 war crimes — conscription, enlistment, and use — had been committed by Séléka, an armed group that staged a coup in the country in 2012, as well as by the opposition anti-balaka. (¶¶  204, 205)

Nigeria: Again, attacks against girls appear to be on examiners’ radar, as indicated by ¶  178:

‘The abduction by the group of over 200 girls from a government primary school in Chibok, Borno State on 14-15 April 2014 has drawn unprecedented international attention to the Boko Haram insurgency.’

As noted at ¶  187, Prosecutor Fatou Bensouda condemned the abduction soon after it occurred, in a statement that, like others she has made recently (see here and here), underscores that the Office’s attention not just to child-soldiering, but also to the full range of crimes against children.

fergusonCHICAGO – Within the rich program of the just-concluded American Society of International Law Midyear Meeting was a discovery. A discovery for me, at least, regarding an important milestone in ASIL’s century-plus history.

I have written before about women who blazed trails in the Society since its founding in 1906. Among several notables is Dr. Alona Evans, the Wellesley political science professor (and mentor of then-student Hillary Rodham) who was elected ASIL’s first woman president in 1980. Evans, who died in office the same year, would be followed by other women: Georgetown Law professor Edith Brown Weiss (1994-1996) Anne-Marie Slaughter (2002-2004), now president of the New America thinktank, Freshfields partner Lucy Reed (2008-2010), and, since the spring of this year, Columbia Law Professor Lori Fisler Damrosch.

I’ve also written about Goler Teal Butcher, Howard Law professor, U.S. State Department diplomat, and Amnesty International activist. Butcher, an African American woman, was friend, mentor, and inspiration to many; indeed, the Society named its human rights medal after her. (See here and here.)

I have not written about the Society’s first (and only) African American president, however. There is a simple reason for that omission: though I have seen the full list of past ASIL presidents, I did not learn until this ASIL’s Midyear that one of them, C. Clyde Ferguson Jr., was a person of African American heritage. He is pictured at top; photo credit.

Credit for my discovery belongs to Blacks in the American Society of International Law – BASIL – a task force that held its formative session at the Chicago meeting. The first component of President Damrosch’s inclusion initiative, BASIL is designed to affirm and expand the tradition of black international lawyers, jurists and academics in the United States. It is co-chaired by ASIL Honorary President Gabrielle Kirk McDonald, whose career includes service as a judge on the U.S. District Court, the International Criminal Tribunal for the former Yugoslavia, and the Iran-U.S. Claims Tribunal, along with Adrien K. Wing, the Bessie Dutton Murray Professor of Law at the University of Iowa. I’m honored to serve as a member of this task force, along with Elizabeth “Betsy” Andersen, Angela Banks, Bartram Brown, Donald Francis Donovan, Jeremy Levitt, Makau Mutua, Natalie Reid, Henry Richardson, and Edith Brown Weiss.

As preparation for our inaugural session, BASIL co-chairs distributed, among other things, a 1994 essay written in memory of Ferguson. Born to a pastor’s family during the Depression, he was barred from attending college in his home state on account of race. Ferguson was graduated cum laude from Harvard Law School and hired as that school’s first African American law professor – for a long time, according to the essay, he was Harvard Law’s “only full-time minority professor.” A human rights scholar, activist, and diplomat, Ferguson served inter alia as dean of Howard University School of Law and as U.S. Ambassador to Uganda. Professor Butcher and he frequently collaborated on issues related to southern Africa.

Elected ASIL’s president in 1978, Ferguson was succeeded two years later by Professor Evans. The fact that the Society chose two pathbreaking leaders in a row is noteworthy. Indeed, it calls out for a legal historian to asil_logoplumb this pivotal moment in ASIL’s history. One hopes that BASIL, alone or in conjunction with WILIG, the Society’s Women in International Law Interest Group, will answer that call.

bbIt’s my great pleasure to announce the publication of the American Society of International Law Benchbook on International Law (2014). This represents the culmination of several years of hard work by 4 dozen contributors, international law scholars and practitioners alike. We’ve benefited greatly from advice of the ASIL Judicial Advisory Board, composed of one member from each federal circuit and several state supreme courts, chaired by U.S. Supreme Court Justice Ruth Bader Ginsburg. It has been an honor to serve as the Benchbook‘s Editor-in-Chief.

As detailed in the Preface, the Benchbook is intended as an aid to judges and litigants when foreign or international law (including treaties and customary norms) forms a part of the case before them.

It will be demonstrated at the joint meeting of ASIL and the International Law Association this week in Washington, D.C. — to be precise, as part of ASIL’s Annual General Meeting, which begins at 2:30 p.m. Thursday, April 10, in Polaris Room A/B at the Ronald Reagan Building & International Trade Center, on Pennsylvania Avenue a few blocks from the White House. (Full meeting program here.) We will give a brief demonstration and extend heartfelt thanks to all who contributed; all are welcome to attend.

The Benchbook appears online here. Readers will find the Preface and, by clicking the Table of Contents tab, the contents of this 2014 edition. Included are our dedication to the memory of David J. Bederman, followed by these units:

► Primer (International Law Defined; Sources and Evidence of International Law; Uses of International Law in U.S. Courts)

► Preliminaries (Jurisdiction; Immunities and Other Preliminary Considerations; Discovery and Other Procedures)

► Specific Topics (International Arbitration; International Law Pertaining to Families and Children; International Sale of Goods; International Air Transportation; Human Rights, comprising Alien Tort Statute, Torture Victim Protection Act, Human Trafficking, and Non-refoulement or Nonreturn; Criminal Justice; and Environment)

► Resources (Judicial Interpretation of International or Foreign Instruments; Research Resources)

Clicking on any of the above chapters will give you the pdf version of that segment of the Benchbook. If you would like to access and download the 356-page Benchbook as a whole, you may do so here.

In order to make the volume as user-friendly as possible (until our eventual transfer to html with hypertexting), we have cross-referenced throughout all chapters, and further provided several means to locate information:

Summary Table of Contents

Detailed Table of Contents

Tables of Treaties, Cases, Laws, and Scholarly Writings, along with a Keyword Index

You will see toward the end that the Benchbook includes a list with short biographies of each contributor. (The book benefited as well from the help of my colleagues and students at the University of Georgia School of Law  – Kaitlin M. Ball, but also Kent Barnett, Harlan Cohen, Erika Furlong, and the super staff at the Alexander King Campbell Law Library.)

The book also includes acknowledgments. These cannot begin to express our deep thanks to all of you for ASIL members’ support of this multiyear project. Going forward, we hope to keep the Benchbook current with periodic updating, and also to make it a hands-on training tool for judges and their staffs. We welcome members’ help in those endeavors.

nottThanks to Nottingham Law Professor Aoife Nolan, I’ve learned that the law school’s Human Rights Law Centre is welcoming applications for its Summer School on the Rights of the Child, set for June 23-27, 2014.

To be discussed are regional and international legal regimes and institutions concerned with the rights of children. Topics will include violence against children, child participation, child poverty, children in conflict, and child rights monitoring and advocacy. The full program lists a host of expert speakers, not least among them Dr. Najat Maalla M’jid, appointed in 2008 as the United Nations’ Special Rapporteur on the Sale of Children, Child Prostitution and Child Pornography. (Her recent report, numbered A/HRC/25/48 and reflecting on the conclusion of her 6-year tenure, is here.)

Summer school details and registration here.

SDOC-LOGO.dec08-300x71“Empowering Future Generations” is the topic of an April 18, 2014,  workshop for which the clinical faculty at Arizona State University Sandra Day O’Connor College of Law in Tempe welcome proposals.

To be discussed at this Southwest Regional Clinical Workshop, according to organizer Jaime Dahlstedt, Associate Clinical Professor of Law at Arizona State and Director of the law school’s Juvenile Advocacy Clinic, are “topics relevant to juvenile law, children and the law, and pedagogical considerations that arise when teaching a Clinic that affects children.” Welcomed are proposals addressing “the various substantive areas of law that impact children, pedagogical issues relating to working with children, case selection and best practices.”

Deadline for proposals is March 18; conference information here.