Harlan Cohen, the Gabriel M. Wilner/UGA Foundation Professor in International Law and Faculty Co-Director of the Dean Rusk International Law Center here at the University of Georgia School of Law, gave an online presentation Monday of “Culture Clash: The Sociology of WTO Precedent,” as part of the International Law Workshop at the Faculty of Law, Tel Aviv University. Conveners of the weekly workshop series are Tel Aviv Law faculty members Natalie Davidson, Aeyal Gross, and Eliav Lieblich.
Harlan G. Cohen, Gabriel M. Wilner/UGA Foundation Professor in International Law and Faculty Co-Director of the Dean Rusk International Law Center at the University of Georgia School of Law, has posted “Metaphors of International Law”, to appear in International Law’s Invisible Frames – Social Cognition and Knowledge Production in International Legal Processes.
Set to be published by Oxford University Press in 2021, the volume is co-edited by Andrea Bianchi, Professor of International Law at Switzerland’s Graduate Institute Geneva, and Moshe Hirsch, Maria Von Hofmannsthal Chair in International Law at the Hebrew University of Jerusalem.
Here’s the abstract:
This chapter explores international law in search of its hidden and not-so-hidden metaphors. In so doing, it discovers a world inhabited by states, where rules are mined or picked when ripe, where trade keeps boats forever afloat on rising tides. But is also unveils a world in which voices are silenced, inequality is ignored, and hands are washed of responsibility.
International law is built on metaphors. Metaphors provide a language to describe and convey the law’s operation, help international lawyers identify legal subjects and categorize situations in doctrinal categories, and provide normative justifications for the law. Exploring their operation at each of these levels, this chapter describes the ways metaphors allow international lawyers to build a shared, tangible universe of legal meaning. But it also reveals how metaphors simultaneously help hide international law’s dark side, blind international lawyers to alternative ways of organizing the world, and prejudge legal outcomes. Metaphors, a key building block of the international law we know, become key also to its demolition, restoration, or remodeling.
The chapter is now available at SSRN.
University of Georgia School of Law Professor Elizabeth Chamblee Burch, an expert on mass torts and complex litigation, recently was quoted in overseas news media regarding ongoing lawsuits against Bayer AG, the Germany-based multinational corporation.
The reporting centered on negotiations to end U.S. litigation in which tens of thousands of plaintiffs have alleged that glyphosate, an ingredient in the Bayer herbicide Roundup, is a carcinogen that causes non-Hodgkin’s lymphoma.
In an article entitled “Bayer vor Glyphosat-Einigung – So sieht der teure Plan aus” (“Bayer before the Glyphosate Agreement – This Is What the Expensive Plan Looks Like”), reporters Bert Fröndhoff and Katharina Kort wrote:
“Legal expert Elizabeth Chamblee Burch, professor at the University of Georgia, thinks it makes sense in principle to withdraw the product from the market beyond agricultural use. ‘But even that doesn’t solve the problem of complaints that can come from those who have already used the product,’ warns the lawyer.”
(Translated from the original German.) The article appeared in Handelsblatt, a business newspaper headquartered in Düsseldorf.
A separate article on the same subject, “Q&A – What Are the Obstacles to Bayer Settling Roundup Lawsuits,” appeared in Israel’s Haaretz. It this article, Reuters reporter Tina Bellon wrote:
“Non-Hodgkin’s lymphoma on average can take up to 10 years to emerge, increasing the likelihood of claims being filed after the litigation has settled. Product liability settlements generally include a cut-off date for future claimants and need to be properly funded for a court to approve the agreement.
“As long as the product continues to be sold without changes to the label, plaintiffs may continue to file lawsuits, said Elizabeth Burch, a law professor at the University of Georgia.”
Professor Burch, holder of the Fuller E. Callaway Chair of Law here at the University of Georgia School of Law, is the author of Mass Tort Deals: Backroom Bargaining in Multidistrict Litigation (Cambridge University Press 2019). In 2017, she presented at an international conference held by Tel Aviv University.
Harlan G. Cohen, Gabriel M. Wilner/UGA Foundation Professor in International Law and Faculty Co-Director of the Dean Rusk International Law Center at the University of Georgia School of Law, presented earlier this month at “International Law’s Invisible Frames – Social Cognition and Knowledge Production in International Legal Processes,” a 2-day conference at the Hebrew University of Jerusalem Faculty of Law in Israel.
Cohen’s presented “Metaphors and International Law” on a panel, chaired by Moshe Hirsch, which also included a talk by Dr. Shiri Krebs of Australia’s Deakin University Law School. The discussant was Hebrew University Law Professor Tomer Broude.
Pleased today to welcome a contribution from Lori A. Ringhand, J. Alton Hosch Professor of Law here at the University of Georgia School of Law. Professor Ringhand concentrates her teaching and scholarship in the areas of constitutional law, election law, and state and local government law – including comparative approaches. She is currently in residence at the University of Aberdeen, Scotland, as a Fulbright Distinguished Chair in Spring 2019. She contributes the post below on her recent faculty exchange experience at Bar-Ilan University in Israel.
I recently had the pleasure of participating in the faculty exchange between the University of Georgia School of Law and the Bar-Ilan University in Tel Aviv, Israel. This initiative lets faculty members from each school teach a mini-course at the other, as well as providing faculty with the opportunity to spend time sharing ideas and working with their colleagues abroad.
I taught Comparative Constitutional Law to a group of about fifteen law students at Bar-Ilan. Each day involved introductory readings, a short lecture, a group project, and student presentations. My students gave presentations on judicial selection methods, judicial review of executive powers in wartime, and the international law of secession. I learned a great deal, and hope they did as well.
I also had the opportunity to talk about my work on the U.S. Supreme Court confirmation process. Despite the dismal reputation of confirmation hearings, my empirical work in this area demonstrates that these hearings play an important role in providing public validation of constitutional change over time. Israel is debating its own high court confirmation process, and I was honored to share my views on the U.S. system on Walla! Global! with anchor Oren Hahari, to do an interview with renowned Israeli journalist Ya’akov Ahimeir, and to lead a research seminar with the Bar-Ilan faculty. It was fun – and challenging – to defend my views in the wake of the hotly contested Kavanaugh hearings.
The highlight of the trip, though, was a weekend trip Jerusalem. I had never visited this part of the world, and touring such an ancient city was an unforgettable experience. The religious and cultural significance of the city is obvious, and seeing such a mix of cultures and peoples figuring out how to share their holy lands was an extraordinary experience. History really does come to life in places like Jerusalem, and I am grateful to the Dean Rusk International Law Center and Bar-Ilan University for making my trip possible.
Lori A. Ringhand, a J. Alton Hosch Professor of Law here at the the University of Georgia School of Law, will meet this Wednesday, November 28, with law students and lawyers in Israel who are interested in postgraduate legal study in the United States. Hosted by EducationUSA Israel, the event is set for 5 p.m. at the Fulbright offices in Tel Aviv, 74-76 Sderot Rothschild.
Ringhand is in Israel teaching a short course at Bar-Ilan University Faculty of Law, with which Georgia Law has a faculty exchange partnership.
A scholar whose expertise includes comparative constitutional law, Ringhand earned a B.C.L. in European and Comparative Law from Oxford University in England, and a J.D. from the University of Wisconsin Law School. She has been awarded a Fulbright Distinguished Chair for Spring 2019, when she will be in residence at the University of Aberdeen, Scotland.
At Wednesday’s event, students and practitioners in attendance will have the opportunity to learn more about what it is like to study law in the United States, and how an LL.M. degree can help advance their careers. Interested students should register to attend.
Details about Georgia Law’s LL.M. degree here.
This is one in a series of posts by University of Georgia School of Law students, writing on their participation in our 2017 Global Governance Summer School or Global Externship Overseas initiative. Author of this post is 2L Rebecca Wackym, who spent her 1L summer as a GEO, or Global Extern Overseas.
For six weeks this summer, I lived and worked in the ancient and industrial city of Hebron (in Arabic, “Al-Khalil”) in the southern West Bank. Hebron is often touted as a “microcosm” of the Israeli-Palestinian conflict. And for good reason: Hebron’s contested Old City district is home to both 30,000 Palestinians and 500-800 Israeli settlers, the latter protected by approximately 2,000 Israeli troops.
At the center of the Old City and the conflict in Hebron is the Ibrahimi Mosque. It is the burial place of the patriarchs of Judaism, Christianity, and Islam: Abraham, Sarah, Isaac, Rebecca, Jacob, and Leah. It is the oldest religious building in the world that has been continually used for its original purpose, and it is the only religious building that serves as both a mosque and a synagogue. Much like the Temple Mount and Dome of the Rock area, the Ibrahimi Mosque has been the subject of a tug of war between the Israelis and Palestinians since the occupation began.
The organization I worked for, Hebron Rehabilitation Committee (HRC), is on the front lines of the battle for cultural heritage rights. HRC succeeded in its efforts to designate the Ibrahimi Mosque and the Old City of Hebron as a UNESCO World Heritage Site in Danger. During my time in Hebron, I worked with the Legal Unit of Hebron Rehabilitation Committee, which was founded to respond to human rights violations against the Palestinian citizens of the Old City, particularly violations pertaining to personal and public property.
The Legal Unit of the HRC uses several legal and policy strategies to achieve this purpose. These include: filing domestic complaints against Israeli Defense Forces orders; filing complaints with various international human rights bodies; conducting international awareness campaigns; and directly educating Palestinians about their rights. I had the opportunity to work on several of these complaints. On one filed with the United Nations Human Rights Council, I did research on Israeli case law. My research involved the exhaustion of domestic remedies requirement in the context of road closure cases, in which the courts typically do not get involved if the closure can be justified by a “security-related” reason. I also wrote a complaint to the Special Rapporteur on the right to freedom of peaceful assembly and of association. For this project, I conducted interviews with victims, compiled evidence, and researched relevant military orders and case law.
The transition from living in the United States to living in a conservative, Muslim-majority place was daunting, but my supervisor, Nicole Trudeau, did everything she could to ease the culture shock. She introduced me to her Palestinian friends and invited me to eat with local residents of the Old City. I felt very welcome and even at home during my time in Hebron. The professional culture was more relaxed than in the United States – the office closed at 3 pm, and tea breaks were customary– but I was surprised to find that it was also almost as progressive. Women outnumbered men in the office and had leadership roles. It was an eye-opening to see a conservative culture value women in the workforce.
During my externship with HRC, I received an invaluable education not only in human rights, cultural heritage, and humanitarian law practice, but also in the Israeli-Palestinian conflict and their respective cultures. I spent weekends traveling all over Israel and the West Bank. I spoke with members of the Israel Defense Forces and Palestinian soldiers, young people in Tel Aviv and Ramallah, settlers in Hebron, and local and international activists just trying to make the situation better. The experience was absolutely incredible. And I will never forget the friends I left in Hebron. Salam!
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.”
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!
A 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.