Former DHS secretary lauds Georgia Law alumnus Chuck Allen on 20-year anniversary as DoD deputy general counsel for international affairs

An alumnus and member of our Dean Rusk International Law Center Council has garnered well-deserved praise from a fellow public servant and longtime colleague.

In “A Tribute to Charles A. Allen,” published Friday at Lawfare, Jeh Johnson, a partner in the Paul Weiss law firm and the U.S. Secretary of Homeland Security from 2013 to 2017, celebrated the 20th anniversary of the day that Allen took up the post of Deputy General Counsel (International Affairs) at the U.S. Department of Defense. Johnson wrote:

“To the benefit of us all, he remains in office today, with the vast responsibility of overseeing the legal aspects of the U.S. military’s operations abroad.

“Put simply: Chuck is one of the finest public servants I know. He embodies the best in federal civilian service.”

Johnson, also former general counsel both of the Department of Defense and of the U.S. Air Force, took particular note of Allen’s service, in the wake of the terrorist attacks of September 11, 2001, “at the legal epicenter of the U.S. military’s armed conflicts against al-Qaeda, the Islamic State and the Taliban; the Iraq War; the conflicts in Libya and Syria; the maritime disputes with China and Iran; and many other conflicts, treaties and defense issues too numerous to list.”

Allen, Johnson continued, is “an earnest, low-key public official who consistently works long hours, mentors young national security lawyers and grinds out an extraordinary volume of work” – and the recipient of a Presidential Rank Award.

We at the University of Georgia School of Law are proud to call Allen (JD’82) an alumnus, former Research Editor of the Georgia Law Review, and author of two articles published in our Georgia Journal of International and Comparative Law: “Civilian Starvation and Relief During Armed Conflict: The Modern Humanitarian Law” (1989) and “Countering Proliferation: WMD on the Move” (2011).

As stated in Allen’s DoD biography, he also earned an undergraduate degree from Stanford and an LL.M. from George Washington University. His service in the U.S. Navy Judge Advocate General Corps included a stint as Deputy Legal Adviser, National Security Council, and Attorney-Adviser, Office of Legal Adviser, U.S. Department of State. In his current position, Allen’s responsibilities include

“legal advice on Department of Defense planning and conduct of military operations in the war on terrorism and the war in Iraq, including the law of armed conflict and war crimes, war powers, coalition relations and assistance, and activities of U.S. forces under international law and relevant UN Security Council Resolutions; arms control negotiations and implementation, non-proliferation, and cooperative threat reduction; status of forces agreements; cooperative research and development programs; international litigation; law of outer space; and multilateral agreements.”

(credit for 2015 International Committee of the Red Cross photo, above, of Charles A. “Chuck” Allen at Minerva–ICRC conference on International Humanitarian Law, held in Jerusalem 15-17 November 2015)

Georgia Law Professor Bruner presents on corporations and sustainability in University of Oslo Law forum

Professor Christopher Bruner, the Stembler Family Distinguished Professor in Business Law here at the University of Georgia School of Law, presented yesterday in Company Law Forum, a video-seminar offered by Research Group Companies, Markets and Sustainability, a unit within the University of Oslo Faculty of Law.

The Research Group described Bruner’s presentation, “Private Power and Public Good: Harnessing the Corporation for a Sustainable Future”, as follows:

The corporate form is widely described, and on some accounts defined, by reference to a core set of purportedly fixed, intrinsic attributes. Such depictions of the corporate form typically reflect strong assumptions about which corporate constituencies should be regarded as internal participants in the corporation, and go hand-in-glove with strong theoretical claims about the corporation’s core utility and corporate law’s correlative content. Christopher Bruner argues, however, that such rigid and static depictions of the corporate form and corporate law have fundamentally misconstrued the nature of the entity, giving rise to a host of corporate pathologies that include excessive risk-taking and cost externalization without regard for environmental and social impacts.

Such hidebound conceptions of the corporation have effectively sacrificed the flexibility and dynamism of the corporate form, thereby obscuring potential governance-related regulatory options that could offer promising solutions to a host of vexing problems. In his new book project, tentatively titled Private Power and Public Good: Harnessing the Corporation for a Sustainable Future, Bruner will re-conceptualize the corporation, not as a fixed and rigid set of legal characteristics but rather as a dynamic legal technology that can be calibrated and re-calibrated in varying contexts, and over time, in response to a dynamic landscape. He will then build upon that framework to explore the corporation’s potential to contribute to environmental, social, and economic sustainability.

Georgia Law Professor Amann presents on sovereignties, Nuremberg woman in online Global History seminar

In this post Professor Diane Marie Amann, the Emily & Ernest Woodruff Chair in International Law and Faculty Co-Director of our Dean Rusk International Law Center here at the University of Georgia School of Law, discusses her most recent presentation, at an innovative online seminar.

What an honor to present my work in progress, “Intersectional Sovereignties: Dr. Aline Chalufour, Woman at Nuremberg – and at Paris, Ottawa, and Dalat” last week in “Global History and International Law”, a months-long seminar under way online.

Organizer of this superb scholarly offering is Dr. Anne-Sophie Schoepfel of the Institut d’études politiques de Paris, better known as SciencesPo. Her affiliation struck me as serendipitous, given that the subject of my paper was a graduate of SciencesPo. Born in 1899, Chalufour was also the 6th woman ever to earn a Ph.D. in international law from the University of Paris. In 1945-1946, she was the only woman lawyer on the French team that joined U.S., British, and Soviet allies in prosecuting vanquished Nazi leaders at Nuremberg.

Chalufour is one of the women on whom I’m focusing in my book-length study of women’s roles at that first Nuremberg trial, before the International Military Tribunal. But the richness of her experiences inspired this separate article.

Among the other highlights in Chalufour’s 90-year life: practice before the Paris Bar; activism in national and international feminist groups; teaching at colonial schools in what’s now Vietnam; serving de Gaulle’s Fighting French as a propagandist in Canada; gathering evidence about war crimes from liberated ex-detainees; taking part as the only French prosecutor in Britain’s first trial on Ravensbrück, a Nazi concentration camp for women; and, starting a few years after Nuremberg, service as a national judge.

My paper considers these episodes in light of of 3 theorizations: 1st, the shared sovereignty of the post-World War periods; 2d, sovereignty dynamics in colonial and imperial sites; and 3d, sovereignties of the person, imagined and corporeal. The paper then examines interrelations among these 3.

Serving as my discussant at last Wednesday’s session was Dr. George Giannakopoulos of King’s College London and NYU London. Numerous other participants offered valuable comments.

This was the 5th session in the seminar, which is slated to run through June 24 and has attracted law and history scholars from Asia and Latin America as well as Europe and North America. Next up, at 3 pm EDT this Wednesday, May 20, are 2 papers within the umbrella theme “Imperial Origins of the World Order”; details here.

What’s more, in due course Dr. Schoepfel and her SciencesPo colleagues are posting edited podcasts of each session. Already available at the seminar’s website and its YouTube channel:

  • “Epistemic Communities in Exile: Coining ‘Crimes against Humanity’ at London, 1940-45” by Dr. Kerstin von Lingen of the University of Vienna, Austria and author of a new journal article on this subject, as well as ‘Crimes against Humanity’. Eine Ideengeschichte der Zivilisierung von Kriegsgewalt 1864-1945 (Paderborn 2018), a monograph soon to be available in English. Discussants were Dr. Barak Kushner of the University of Cambridge, England, and Dr. Sabina Ferhadbegović of Imre Kertész Kolleg Jena, Germany.
  • “Genocide in Historical Perspective. The Language of Trangression” by Dr. Dirk Moses, of the University of Sydney, Australia, and author of The Problems of Genocide. Permanent Security and the Language of Transgression (forthcoming Cambridge University Press). Discussant was Dr. Charles Maier of Harvard University.
  • “The Nuremberg Moment. International Trial, American Lawyers and the Racial Question” by Dr. Guillaume Mouralis of Centre Marc Bloch in Berlin, and author of Le Moment Nuremberg. Le procès international, les lawyers et la question raciale (Presses de Sciences Po 2019). Discussant was Dr. Elizabeth Borgwardt of Washington University in St. Louis.

The full list of seminar participants is here; full schedule and registration information, here.

(cross-posted from Diane Marie Amann blog)

Georgia Law Professor Jason A. Cade secures grant to address needs of immigrants, other vulnerable communities during COVID-19 crisis

Jason A. Cade, J. Alton Hosch Associate Professor of Law and Director of the Community Health Law  Partnership Clinic here at the University of Georgia School of Law, has secured a $10,000 Flom Incubator Grant from the Skadden Foundation to address the impact of the COVID-19 pandemic on immigrant families and other vulnerable communities in Athens, Georgia, and surrounding rural areas.

The grant will enable Cade and a coalition of partners to develop and launch a model for remote screening, advice, and advocacy, aimed at addressing these communities’ most pressing needs for civil legal assistance. If successful, the model could be expanded to other communities, in Georgia and elsewhere, both during and beyond the current pandemic.

Named after a late partner of the Skadden law firm, Flom Incubator Grants support novel legal projects undertaken in the public interest by former Skadden Fellows – like Professor Cade, who, before joining the Georgia Law faculty, was a Skadden Public Interest Fellow at The Door, a New York-based nonprofit dedicated to the development of young people.

Georgia Law Professor Amann in symposium on next Prosecutor of International Criminal Court

In this post Professor Diane Marie Amann, the Emily & Ernest Woodruff Chair in International Law and Faculty Co-Director of our Dean Rusk International Law Center at the University of Georgia School of Law, discusses her recent international law commentary.

Caution in giving too much credit, or blame, to one individual formed the focus of my contribution to last week’s symposium on “The Next ICC Prosecutor.”

Entitled “Placing the Prosecutor within the International Criminal Justice Project,” my post appeared Friday at Opinio Juris, cosponsor along with Justice in Conflict of the online symposium.

My post began by welcoming the rich dialogue – in anticipation of December’s election of the 3d Prosecutor of the International Criminal Court – that had unfolded all week. Fueling that discussion were contributions from a couple dozen commentators on international criminal law: Ewan Brown, Danya Chaikel, David Crane, Geoff Dancy, Tom Dannenbaum, Christian De Vos, Elizabeth Evenson, Kate Gibson, James Goldston, Douglas Guilfoyle, Kevin Jon Heller, Mark Kersten, Patryk Labuda, Stephen Lamony, Luis Moreno Ocampo, Jonathan O’Donohue, Mariana Pena, Priya Pillai, William Schabas, Melinda Taylor, Valerie Oosterveld, Beth Van Schaack, and Kate Vigneswaran, Alex Whiting, and William H. Wiley.

My post then pointed to risks involved in “placing too much weight on the person and position of Prosecutor.” These included:

  • the risk of generating expectations, “inevitably doomed to disappoint”; and
  • the risk that “the very association of a complex project with a lone person or position” obscures the myriad ways that many other actors “play roles, in helping to construct perceptions of the project and in contributing, or not, to the project.”

My contribution is available in full here. For additional posts in the symposium, see list here.

(Cross-posted from Diane Marie Amann blog)

Appointed to state’s Supreme Court: Judge Carla Wong McMillian, alumna of Georgia Law and past contributor to this blog, having posted about her Asian-American heritage

Delighted to announce the appointment to the Supreme Court of Georgia of the Honorable Carla Wong McMillian, who has served as a judge on the Georgia Court of Appeals since 2013. She is a distinguished alumna of the University of Georgia School of Law – and also, we’re proud to note, a past contributor to this blog.

She will replace another Georgia Law alum and in turn be replaced by another Georgia Law alum; respectively, just-retired Supreme Court Justice Robert Benham and Superior Court Judge Verda Colvin, who is based in Macon.

Born in Augusta, Georgia, Carla Wong McMillian earned her Georgia Law J.D. degree summa cum laude in 1998. She becomes the first Asian-American woman in the Southeast to be put on her state’s highest court; additionally, she is first Asian Pacific American state appellate judge ever to be appointed in the Southeast, and the first Asian American person to be elected to a statewide office in Georgia. Her professional service includes a term as President-Elect of the Georgia Asian Pacific American Bar Association (GAPABA).

She reflected on these achievements in “My family history & path to the bench,” a 2016 post at this blog, which reprinted an essay she’d written for the Georgia Asian American Times. Available in full here, the essay began:

“I am proud to be an American. I am equally as proud of my Asian American heritage.”

 

Georgia Law Professor Kent Barnett on comparative study in “Chevron Abroad,” Notre Dame Law Review article co-authored with Georgia Law 3L student Lindsey Vinson

Pleased today to welcome a contribution from Kent Barnett (near right), J. Alton Hosch Associate Professor of Law here at the University of Georgia School of Law. He reprises his recent Yale Journal on Regulation blog post; it summarizes the forthcoming article, Chevron Abroad, which he co-authored with Georgia Law 3L Lindsey Vinson (above right). An expert on administrative law and related areas—at times using comparative approaches—Professor Barnett’s previous Exchange of Notes contribution is here.

The Kids Will Be Alright—How comparative study can inform U.S. judicial review of agency statutory interpretation

Chevron deference—the U.S. doctrine that calls for courts to defer to reasonable agency statutory interpretations—is under siege. A majority of current U.S. Supreme Court Justices have, at one time or another, expressed concern over its domain, operation, or very existence. Two state courts in the U.S. have overruled their state-law equivalents. Some welcome Chevron’s demise as an antidote to an ever-encroaching administrative state that chafes at statutory limits to authority. Others view Chevron’s internment as nothing but a judicial power grab in the face of ideological hostility to an effective administrative state. For my part, my past research co-authored with Dr. Christy Boyd and Professor Chris Walker suggests that—whatever its downsides—Chevron deference has the benefit of muting ideological judicial behavior. This muting can further national uniformity in lower court decisions concerning agency statutory interpretation.

But is the angst surrounding Chevron worth it? Do we really need to worry that administrative agencies will eventually consume all our liberty if Chevron continues or that the American bureaucracy will become an ineffective wasteland if Chevron ends? Moreover, even those not taken to hyperbolic worry have argued, to varying degrees, that Chevron deference is inevitable—whatever its drawbacks.

To evaluate whether Chevron or something like it exists or is absent in other stable democracies, my co-author, Lindsey Vinson, and I considered judicial review of agency statutory interpretation in five other countries in Chevron Abroad, our forthcoming article in the Notre Dame Law Review. Although we would have liked to see how countries with a presidential system like that of the United States behave, that system is rare, especially among mature legal systems. Instead, we looked at 5 parliamentary systems. These included countries with separation of powers guaranteed in written constitutions, with civil-law legal systems, and with federal systems. Among the countries studied were Germany, Italy, the United Kingdom, Canada, and Australia.

Based on our study, we cannot say that Chevron or something like it is inevitable. Only one of the countries that we studied had a doctrine similar, if not more expansive than, Chevron. One has rejected deference altogether, and one has rejected Chevron specifically in dicta. The others, at best, had some small space for deferring to agency interpretations. This variation among these major legal systems also suggests that the existence or absence of something like Chevron does not mean the end of either democracy or an effective bureaucracy. After all, citizens in both Canada—with a strong form of deference—and Germany—without one—have strong confidence in their governments. Of course, we cannot say that any of these systems are operating optimally, but we can say that Chevron existence or absence alone does not appear as significant as the U.S. administrative law cognoscenti often suggests.

In brief, here’s the variation that we found in our study:

Germany. Influenced by its conscious concern over the relationship between judicial abdication and its Nazi past, Germany has its own 2-step deference doctrine that has a much more limited domain than Chevron. Deference in Germany is significantly limited to certain technical, scientific, or economic matters that the legislature has delegated to the agency.

Italy. Italy has had tumultuous doctrinal shifts in the past few decades. As it stands, it has rejected judicial deference altogether when reviewing agency statutory interpretations. But it sends contradictory signals occasionally.

United Kingdom. For decades, the UK has rejected judicial deference to agency statutory interpretation, after having a doctrine similar to Chevron. Although it defers in some instances for “special” matters decided by entities that U.S. law would characterize as agencies, its limited deference arises under its law on charities.

Canada. Canadian judicial review comes the closest to Chevron, with a highly functional, contextual inquiry into whether deference is appropriate for statutory provisions that can support more than one reasonable interpretation. Canada has applied deference even to questions that implicated constitutional or common-law matters.

Australia. Finally, Australia’s High Court expressly rejected Chevron in dicta. Nonetheless, Australia continues to have a very limited, rarely applied doctrine somewhat similar to Chevron when statutes expressly give agencies exclusive jurisdiction and limit judicial review.

Our study also provides insight on how U.S. courts—whether or not they prefer Chevron—could go about improving Chevron in a way that is more consistent with its theoretical grounding.

For instance, Chevron, like other countries’ deference doctrines, is grounded primarily on notions of legislative delegation and expertise. Chevron relies primarily upon ambiguity in a statute that the agency administers to signal legislative delegation. But the presence of statutory ambiguity somewhere in a statute is not the most direct way of assessing either actual delegation or agency expertise on the matter at issue. Germany focus on expertise. German courts permit deference only in limited circumstances—for certain scientific, economic, or technical matters—as a way of ensuring that deference adheres only to matters in which the agency has likely epistemological advantage over courts. Australia has its limited Hickman deference doctrine that requires that the legislature signal its intent with two statutory clauses that it wants agencies (or inferior courts) to have interpretive primacy over the matter at issue. By doing so, Hickman requires a more direct, although not express, signal of legislative delegation than Chevron. These approaches in other countries suggest how Chevron could better ground itself on its theoretical foundations.

We hope that our article will lead more American scholars to consider how other countries approach administrative law matters. Doing so not only provides examples of possible improvements to the American administrative state, but it also helps lower the temperature of academics and judges who worry over the current or future state of Chevron deference.