Cohen publishes article on political question doctrine in wake of Zivotofsky

Harlan Grant Cohen, the Gabriel N. Wilner/UGA Foundation Professor in International Law here at the University of Georgia School of Law, has published an article examining the U.S. political question doctrine in light of recent Supreme Court litigation in Zivotofsky, which arose out of the request by U.S. citizens that their child, born in Jerusalem, be issued a passport designating “Israel” as the child’s birthplace. Entitled “A Politics-Reinforcing Political Question Doctrine,” Professor Cohen’s article appears at 49 Arizona State Law Journal 1 (2017).

The manuscript, which forms part of our Dean Rusk International Law Center Research Paper Series at SSRN, may be downloaded at this SSRN link.

Here’s the abstract:

“The modern political question doctrine has long been criticized for shielding the political branches from proper judicial scrutiny and allowing the courts to abdicate their responsibilities. Critics of the doctrine thus cheered when the Supreme Court, in Zivotofsky I, announced a narrowing of the doctrine. Their joy though may have been short-lived. Almost immediately, Zivotofsky II demonstrated the dark side of judicial review of the separation of powers between Congress and the President: deciding separations of powers cases may permanently cut one of the political branches out of certain debates. Judicial scrutiny in a particular case could eliminate political scrutiny in many future ones.

“A return to the old political question doctrine, with its obsequious deference to political branch decisions, is not the answer. Instead, what is needed is a politics-reinforcing political question doctrine that can balance the need for robust review with the desire for robust debate. The uncertain boundaries between the political branches’ overlapping powers create space for political debate. Their overlapping powers allow different groups to access the political system and have a voice on policy. Deciding separation of powers questions once-and-for-all can shut off those access points, shutting down political debate. A politics-reinforcing political question doctrine preserves the space in the political system for those debates by turning the pre-Zivotofsky political question doctrine on its head. Whereas the pre-Zivotofsky political question suggested abstention when the branches were in agreement and scrutiny when they were opposed, a politics-reinforcing political question doctrine suggests the opposite, allowing live debates to continue while scrutinizing political settlements. In so doing, it brings pluralism and politics back into the political question analysis, encouraging democracy rather than deference.”

Georgia Law students sweeping the planet as Summer 2017 Global Externs

This summer, twenty law students will earn practice experience through our Global Externship initiative. Most will be GEOs, or Global Externs Overseas, while a couple are GEAs, or Global Externs At-Home. Some will complement this experience with participation in our Global Governance Summer School in Belgium and the Netherlands.

Administered by our Dean Rusk International Law Center, University of Georgia School of Law, the decades-old Global Externship enables Georgia Law students to gain practice experience via placements at law firms, in-house legal departments, government agencies, and nongovernmental organizations around the world. Thanks to generous donations, virtually all Global Externs receive financial support from law school funds; a few receive funds from their placement. (Posts about last year’s Global Externs here and here.)

This year’s class of rising 2Ls and 3Ls will work in Africa, North America, Asia, Europe, and the Middle East. The class includes twelve students in business-law placements, in practice areas including intellectual property, finance, environment, and trade:

Taryn Arbeiter, U.S. Court of International Trade, New York, New York
► Casey Callahan – Buse Heberer Fromm, Frankfurt, Germany
► James Cox – PSA Legal, New Delhi, India
► Nicholas Duffey – GÖRG, Cologne, Germany
► Brian Griffin – PwC, Milan, Italy
► Karen Hays – Fererro, Luxembourg
► Matt Isihara – MV Kini, New Delhi, India
► George Ligon – PwC, Milan, Italy
► Nils Okeson – Maples Teesdale, London, England
► Matt Poletti – Araoz & Rueda, Madrid, Spain
► Nicholas Steinheimer – PSA Legal, New Delhi, India
► Ezra Thompson – Al Tamimi & Co., Dubai, United Arab Emirates

The remaining eight students will be in public interest law placements, working on issues such as international criminal law, international child law, and international human rights:

► Jeremy Akin – Research Assistant for Professor William A. Schabas, Middlesex University, London, England
► Lauren Brown – War Child, Amsterdam, The Netherlands
► Jennifer Cotton – Global Coalition to Protect Education from Attack / Human Rights Watch, New York, New York
► Wade Herring – Open Society Justice Initiative, The Hague, The Netherlands
► Zack Lindsey – Women in Law and Development in Africa, Accra, Ghana
► Lyddy O’Brien – No Peace Without Justice, Brussels, Belgium
► Azurae Orie – Global Coalition to Protect Education from Attack / Human Rights Watch, remote research from Athens, Georgia
►Rebecca Wackym – Legal Unit of the Hebron Rehabilitation Committee, Israel

Join us in congratulating them on their success and wishing them a great summer!

Professor Burch presents on class actions at global conference in Israel

burch-profileA leading Georgia Law expert on complex litigation, Professor Elizabeth Chamblee Burch, recently presented on the subject at an international conference at the Tel Aviv University Faculty of Law in Israel.

Entitled “Fifty Years of Class Actions – A Global Perspective,” the 2-day conference brought together scholars not only from the United States and Israel, but also from Australia, Canada, Chile, Germany, Hong Kong, Italy, and the Netherlands.

Professor Burch, who holds the Charles H. Kirbo Chair of Law at the University of Georgia School of Law, spoke on the topic of “Publicly Funded Objectors.” Commenting on her paper was Dr. Eran Taussig, an attorney and lecturer at several universities in Israel.

Here’s the abstract:

On paper, class actions run like clockwork. But practice suggests the need for tune-ups: judges still approve settlements rife with red flags, and professional objectors may be more concerned with shaking down class counsel than with improving class members’ outcomes. The lack of data on the number of opt-outs, objectors, and claims rates fuels debates on both sides, for little is known about how well or poorly class members actually fare. This reveals a ubiquitous problem: information barriers confront judges, objectors, and even reformers.

Rule 23’s answer to information barriers is to empower objectors. At best, objectors are a partial fix. They step in as the adversarial process breaks down in an attempt to resurrect the information-generating function that culture creates. And, as the proposed changes to Rule 23’s handling of objectors reflect, turmoil exists over how to encourage noble objectors that benefit class members while staving off those that namely seek rents from class counsel.
Yet, this concern about screening the bad from the good has distracted us from both the bigger question and the true challenge. The bigger question is how we ensure that judges have the necessary information (and incentive) to monitor the attorneys and ensure that the settlement is fair when the adversarial system breaks down. And the real challenge is how we confront the intense regulatory struggle that arises anytime private actors perform public functions.

Addressing the public-private challenge can generate possibilities for overcoming information deficits. Our class-action scheme is not the only one that relies on private actors to perform public functions: citizens privately fund political campaigns, and private lobbyists provide research and information to lawmakers about public bills and policies. Across disciplines, the best responses to those challenges have often been to level up, not down. As such, this Essay proposes a leveling up approach to address judges’ information deficit such that they can better perform their monitoring role. By relying on public funds to subsidize nonprofit objectors’ information-gathering function, we can disrupt private class counsel’s disproportionate influence.