Hague briefings at ICC, Iran-U.S. Claims Tribunal and ICJ launch 2017 Global Governance Summer School

At the Iran-U.S. Claims Tribunal, front from left: Ana Morales Ramos, Legal Adviser; Hossein Piran, Senior Legal Adviser; Kathleen A. Doty, Interim Director, Dean Rusk International Law Center; David Caron, Tribunal Member; and Georgia Law Associate Dean Diane Marie Amann. Back row, students Nicholas Duffey, Lyddy O’Brien, Brian Griffin, Wade Herring, Jennifer Cotton, Evans Horsley, Casey Callaghan, Kristopher Kolb, Nils Okeson, James Cox, and Ezra Thompson.

HAGUE – Briefings at key international law institutions here have highlighted the initial leg of the Global Governance Summer School led by the University of Georgia School of Law Dean Rusk International Law Center.

Our students’ journey began with a visit yesterday to the International Criminal Court Permanent Premises (left), a tile-and-ivy structure, located in dunelands not far from the North Sea, that opened just 18 months ago. Accompanying them were Associate Dean Diane Marie Amann and our Center’s Interim Director, Kathleen A. Doty, both of whom will lecture at the summer school next week.

Outlining the work of the Office of the Prosecutor were the Prosecutor’s Senior Legal Adviser, Shamila Batohi, and Legal Assistant, Annie O’Reilly (right), with whom Associate Dean Amann works in her capacity as the Prosecutor’s Special Adviser on Children in and affected by Armed Conflict. Topics included case selection and specific cases, complementarity and state cooperation, and the role of the prosecution in relation to other organs of the court.

Then Leiden Law Professor Dov Jacobs, a Legal Assistant in Defense at the ICC and member of the defense team for Laurent Gbagbo, the former Ivoirian President now on trial before the court. Shifting from the theoretical to the practical and back again, he spoke about the nature and challenges of international criminal justice, particularly as it relates to the defense function before contemporary bodies like the ICC.

The journey continued today with a morning briefing at the Iran-U.S. Claims Tribunal, an international organization established by treaty 36 years ago as a means to settle disputes arising out of the 1979 takeover of the U.S. Embassy in Tehran. It comprises 3 Americans, 3 Iranians, and three members from other countries. Offering a fascinating dialogue on the history and operations of the tribunal were Dr. David Caron, a U.S. member of the tribunaland an international law professor at Kings College London, and Dr. Hossein Piran, Senior Legal Adviser at the tribunal.

(It was a treat to learn that one of Dr. Piran’s professors was the late Gabriel N. Wilner, who founded our European summer study abroad during his long tenure on the Georgia Law faculty. Holding the professorship named after Wilner is Georgia Law Professor Harlan Cohen, who will lecture in this summer school next week, along with Leuven Law Professor Jan Wouters and others.)

The afternoon brought us to the Hague’s Vredepalais (left), or Peace Palace, built in the early 1900s to house international institutions that would foster pacific, rather than warlike, settlements of disputes.

Leading discussion on one of those institutions, the International Court of Justice set up under the 1945 Charter of the United Nations, was Dr. Xavier-Baptiste Ruedin (right), Legal Adviser for Judge Joan E. Donoghue. Topics ranged from provisional measures, like those recently issued in a case involving India and Pakistan, to jurisdiction via advisory opinion (including one soon to arrive at the court, following yesterday’s U.N. General Assembly vote) or contentious case.

A question common to all 3 visits was the role of such institutions – and international law more generally – in the governance of global affairs. We’ll continue to seek answers next week, when our Global Governance Summer School moves to Belgium for classroom seminars and an experts conference with our partner institution, KU Leuven’s Leuven Centre for Global Governance Studies.

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 Professor Larry D. Thompson, Independent Compliance Monitor in VW fuel emissions matter

A University of Georgia School of Law professor is overseeing compliance reforms by Volkswagen AG, following the global automaker’s recent sentencing in a criminal case arising out of its fuel emissions tests.

The professor is Larry D. Thompson, holder of the  John A. Sibley Chair of Corporate and Business Law and a member of the law school’s Dean Rusk International Law Center Council, teaches Corporate Responsibility, White Collar Crime Business Crimes. He is also Counsel at Finch McCranie LLP in Atlanta. His distinguished career includes service as Deputy Attorney General of the United States, as U.S. Attorney for the Northern District of Georgia, and as General Counsel of PepsiCo.

Thompson was named Independent Compliance Monitor in the VW matter in April, pursuant to a settlement by which a U.S. District Court judge in Detroit accepted VW’s plea to three felony counts: conspiracy to defraud the United States by engaging in wire fraud and violating the Clean Air Act; obstruction of justice; and importing merchandise via false statements. VW agreed to a fine exceeding $4 billion, and also to oversight by the Independent Compliance Monitor.

At the time, the company issued the following statement, by Hiltrud Werner, Board Member of Integrity and Legal Affairs, from its headquarters in Wolfsburg, Germany:

“Volkswagen welcomes the appointment of Larry D. Thompson to this new position, and we intend to cooperate fully with his important work.”

Since then, Thompson has assembled the team of lawyers he will lead in this work.

Georgia Law alumnus Robert Dilworth co-authors article on SEC rules

Developments at the U.S. Securities & Exchange Commission are the focus of a lead article that a distinguished University of Georgia School of Law alumnus has co-authored for a leading securities law journal.

The alum, Robert J. Dilworth (JD 1982), is Managing Director and Associate General Counsel at Bank of America/Merrill Lynch in New York at Bank of America / Merrill Lynch, representing the firm’s global over-the-counter equity derivatives business. His co-authors on the SEC article are two attorneys at Morrison & Foerster LLP: Julian E. Hammar, Of Counsel in the firm’s Washington, D.C., office, and David B. Lichtstein, Associate in New York.

Their article is entitled “The SEC’s Long-Awaited Security-Based Swaps Rules May Be Approaching,” appears (behind paywall) in vol. 50, no. 7 of The Review of Securities & Commodities Regulation. The article concerns timing and sequencing related to anticipated SEC rules pursuant to the Dodd-Frank Wall Street Reform and Consumer Protection Act. Referring as well to the Commodity Futures Trading Commission, or CFTC, the abstract states:

“The SEC has proposed all of its major Title VII rules regulating the security-based swaps market. The authors discuss the current status of this and related rulemakings, the relief the SEC has granted, and the provisions of the rules. They then turn to the timeline for implementation in view of the new administration, preparation for required registration of security-based swap entities, and business conduct standards for registered entities. At each point, they compare the SEC’s approach with that of the CFTC.”

“Judicial Federalism in the European Union,” new article by Professor Wells

Professor Michael Lewis Wells, who holds the Marion and W. Colquitt Carter Chair in Tort and Insurance Law here at the University of Georgia School of Law, has published an article comparing judicial practice in Europe and the United States. Entitled “Judicial Federalism in the European Union,” it appears at 54 Houston Law Review Winter ​697 (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:

This article compares European Union judicial federalism with the American version. Its thesis is that the European Union’s long-term goal of political integration probably cannot be achieved without strengthening its rudimentary judicial institutions. On the one hand, the EU is a federal system in which judicial power is divided between EU courts, of which there are only three, and the well-entrenched and longstanding member state court systems. On the other hand, both the preamble and Article 1 of the Treaty of Europe state that an aim of the European Union is “creating an ever closer union among the peoples of Europe.” The article argues that central government courts and member state courts are not fungible. In close cases, the latter are more likely than the former to favor the member state’s interests. The EU’s approach to judicial federalism, with its heavy reliance on member state courts, will retard the political integration envisioned by the Treaty. The article develops this thesis by comparing EU judicial federalism with the American variant, which differs from the EU system in two key respects: First, most issues of EU law are adjudicated in the member state courts. In the U.S., a network of lower federal courts adjudicates many federal law issues. Second, the U.S. Supreme Court reviews state court judgments that turn on issues of federal law. The Court of Justice of the European Union does not review member state judgments, even on issues of EU law. The article argues that these aspects of the federal system in the U.S. were indispensable to achieving and maintaining national unity. If the EU aspires to a similar level of political integration, their absence may prove to be a significant obstacle.

Professor Cade publishes in Georgia Bar Journal special immigration issue

Jason A. Cade, Assistant Professor at the University of Georgia School of Law, has just published “Proportionality Lost? The Rise of Enforcement-Based Equity in the Deportation System and Its Limitations,” at 22 Georgia Bar Journal 16 (2017).

Cade teaches Immigration Law and directs the law school’s Community Health Law Partnership Clinic. His scholarship explores intersections between immigration enforcement and criminal law, the role of prosecutorial discretion in the modern immigration system, and judicial review of deportation procedures.

His latest article, featured in a GBJ special issue entitled “Public Interest Immigration Update,” may be downloaded at SSRN. Here’s the abstract:

This article briefly explains and critiques the legal framework that has made enforcement discretion the primary means of injecting proportionality and fairness into the modern deportation system. The article provides an overview of shifting approaches to this enforcement discretion under the Obama and Trump administrations, and describes some of the key Supreme Court jurisprudence interpreting this framework.

Professor Wells publishes review of book on torts harmonization in Europe

Professor Michael Lewis Wells, who holds the Marion and W. Colquitt Carter Chair in Tort and Insurance Law here at the University of Georgia School of Law, has posted “Harmonizing European Tort Law and the Comparative Method: Basic Questions of Tort Law from a Comparative Perspective” at SSRN. The review of a book by a Viennese torts scholar is forthcoming in volume 9 of the peer-reviewed Journal of Civil Law Studies.

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

Here’s the abstract:

This is a book review of Basic Questions of Tort Law from a Comparative Perspective, edited by Professor Helmut Koziol. This book is the second of two volumes on “basic questions of tort law.” In the first volume, Professor Helmut Koziol examined German, Austrian, and Swiss tort law. In this volume Professor Koziol has assembled essays by distinguished scholars from several European legal systems as well as the United States and Japan, each of whom follows the structure of Koziol’s earlier book and explains how those basic questions are handled in their own systems.

This review focuses on Professor Koziol’s ultimate aim of harmonization, and on the contribution of these essays to that project. Harmonization of tort law across the member states is not just a matter of working out answers to such questions as the content of the liability rule or whether non-pecuniary harm should be recoverable. Harmonization raises an issue of European Union federalism. That question is not explicitly addressed in either volume, yet the value of the project, and prospects for its success, turn on the answer to it. I argue that Professor Koziol has not made a convincing case for EU displacement of member state tort law.