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The Online Version
of the Magazine
of Cornell Law School

 

Spring 2012

 

Volume 38, No 1

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Table of Contents  Featured Article


Beyond Borders: International Programs and Scholarship

by KENNETH BERKOWITZ  |  ILLUSTRATIONS by ERIC HANSON, PHOTOGRAPHY by Robert Barker
With the foresight to see a growing need for international lawyers at the end of World War II, diplomat and industrialist Myron Taylor helped Cornell found an international legal studies program that would link the Law School to the rest of the world. Half a century later, with the collapse of the Soviet Union and the upheaval that followed, the program re-envisioned its global role, experiencing what John J. Barceló, the William Nelson Cromwell Professor of International and Comparative Law, calls “a second founding.”

 

The Berger International Legal Studies Program, established in 1992, allowed the Law School to greatly expand its approach, which has broadened steadily in the twenty years since. In fulfilling Cornell’s commitment to academic excellence, six internationally respected scholars have taken charge of international and comparative law in both theory and practice, balancing their own scholarly research with the work of the programs they’ve created and nurtured: Barceló, the Elizabeth and Arthur Reich Director of the Berger Program and principal architect of Cornell’s international efforts; Annelise Riles, the Jack G. Clarke Professor of Far East Legal Studies, professor of anthropology, and director of the Clarke Program in East Asian Law and Culture; Muna B. Ndulo, professor of law and director of the interdisciplinary Institute for African Development; Chantal Thomas, professor of law, who leads the Clarke Initiative for Law and Development in the Middle East and North Africa; Sital Kalantry, associate clinical professor of law, cofounder and faculty director of the Avon Global Center for Women and Justice, and director of the International Human Rights Clinic; and Mitchel Lasser, the Jack G. Clarke Professor of Law, who oversees graduate studies and codirects the Cornell Summer Institute of International and Comparative Law in Paris.


“From the very beginning, we didn’t want comparative law to merely be a theoretical subject of interest to a few people,” says Barceló. “We wanted it to be central to Cornell Law’s scholarly work and treated it as an essential part of our lives and our students’ lives. We’re fortunate that the Law School’s benefactors saw these changes coming a long time ago and had the courage to be in the forefront of developing new programs.


“Now, at a time of economic integration, of globalization, lawyers need to operate in a world with more than two hundred nation states and more than two hundred legal systems, any number of which can come into play on any particular transaction,” he continues. “These six programs, which are Cornell’s response to the transformation we’ve witnessed since the end of the Cold War, represent an international focus that fits the world we live in today.”

The Berger International Legal Studies Program
JOHN J. BARCELO, The William Nelson Cromwell Professor of International and Comparative Law

Back in 1974, five years after joining the Cornell Law faculty as an assistant professor, Jack Barceló assumed responsibilities for designing a program in international and comparative law. Thirty-eight years and countless changes later, he remains the program’s greatest constant, a world-renowned expert on international trade, arbitration, and business law with a deep commitment to training lawyers in the global sense.


When Barceló began, there were no Cornell Law programs for study abroad. Then in 1994, with the support of the Berger Program, he founded the summer institute, a collaboration between Cornell and the Sorbonne Law School that remains the model for transnational legal education. There are now dual degree programs between Cornell and Université Paris 1 Panthéon-Sorbonne, Humboldt-Universität zu Berlin, Institut d’Études Politiques de Paris, and Shanghai Jiao Tong University; and as the summer institute approaches its twentieth anniversary, it has been joined by partnerships with universities in Amsterdam, Barcelona, Beijing, Berlin, Budapest, Cairo, Cape Town, Gent, Hamburg, Heidelberg, Hong Kong, Lisbon, London, New Delhi, Oslo, Santiago, Shanghai, Sydney, Tel Aviv, Tokyo, and Turin.


"All these exchange programs grew out of the summer institute, which is still going extremely well,” says Barceló, who was recently inducted into the Legion of Honor, the highest recognition France gives to noncitizens, for founding and codirecting the institute. “In recent summers, we’ve enrolled between ninety and one hundred students, including some from Cornell, but most from the rest of the world. They attend classes together, focusing on comparative law, and approach their courses with differing backgrounds in language, law, culture, and education, which creates a very dynamic, vibrant learning experience.”

Here in Ithaca, the Berger Program offers an extensive agenda of international speakers; an ongoing series of scholarly conferences; several international moot court teams that compete successfully around the world; a transactional lawyering competition that allows students to practice mock negotiations; the nonprofit Cornell Advocates for Human Rights, which builds relationships with NGOs to supply students with pro bono research and advocacy opportunities; the J.D./LL.M. dual degree in International and Comparative Law and the Berger International Legal Studies Specialization, each of which offers a specialized degree for international private practice, international business, or government service; the Post-Graduate Fellowship for International Judicial Service, which provides funding for recent graduates to serve in clerkships and visiting-professional appointments at foreign courts; the Briggs Society of International Law, which sponsors events that bring J.D. and LL.M. students together throughout the year; and the student-run International Law Journal, one of the oldest and most prominent journals of its kind, which publishes writing by legal scholars, practitioners, and students, and has been advised by Barceló since 1990.


“Some institutes are solely focused on scholarship and research, and though that’s an important aspect of the Berger Program, which has a long series of conferences, symposia, and publications to its credit, we’ve always had a significant orientation toward education in the traditional sense,” says Barceló, whose International Commercial Arbitration: A Transnational Perspective, being published in 2012 in its fifth edition (with co-author Tibor Varady), remains the standard text on the subject. “That’s meant bringing the world here to Cornell, including leading figures in government, practice, and academia, to create an exchange of ideas, as well as sending Cornell faculty and students out to the rest of the world. Looking back, that’s really what I’ve spent my career doing.”

 

The Clarke Program in East Asian Law and Culture
ANNELISE RILES, the Jack G. Clarke Professor of Far East Legal Studies
By the time Annelise Riles arrived at Cornell in 2002, she had already pioneered the field of cultural law, combining legal studies with anthropologic field work in a study of transnational institutions operating in Fiji. With a J.D. from Harvard Law School and a Ph.D. in social anthropology from the University of Cambridge, she’d spent six years teaching at Northwestern University School of Law and Yale Law School, and published The Network Inside Out, which won the best book prize from the American Society of International Law for reconceiving the possibilities of comparative law.


Her first task in Ithaca: develop the Clarke Program in East Asian Law and Culture. “When this program was founded, we had two main goals,” says Riles, who continues to teach courses in both the Law School and Cornell’s College of Arts and Sciences’ anthropology department. “One was to dramatically deepen and broaden the understanding of Asian law and Asian legal systems—not just to teach students about Asia, but to change the way Asian legal systems are understood in the United States. The other goal was to bring the Law School into a richer, deeper conversation with the rest of the university. From the very beginning, we’ve had many, many experts on Asia giving talks here in Ithaca, coming to conferences, and helping create this intellectual project that ties us closer to the Cornell community.”


For most of its first ten years, that’s exactly what the Clarke Program has done, using lectures, colloquia, and scholarly exchanges to foster collaborations across disciplines and cultures, both inside and outside Cornell; in the most recent example, Riles partnered with the Cornell East Asia Program and the Einaudi Center for International Studies to organize a conference on global responses to Japan’s 2011 earthquake, tsunami, and financial crisis.


Now, having recently celebrated its tenth anniversary, the Clarke Program has launched its most ambitious project to date (see p. 32). With Meridian 180, Riles has developed a new paradigm for generating real-time solutions to the twenty-first century’s transnational challenges, creating an online, multilingual, transpacific community of thinkers who share a belief in affecting change through dialogue.


“In the past, we imagined that our constituency was primarily here at Cornell,” says Riles. “But in thinking about what we’d like to accomplish over the next ten years, we decided to reach beyond Ithaca, beyond the United States, to stage a conversation among intellectuals, lawyers, policy makers, and government officials around the Pacific Rim. We’re taking a very elite group of thinkers, educating them in the differences across cultures and legal systems, providing translations in Chinese, Japanese, and English to eliminate the misunderstandings that plague encounters across languages, and fostering interdisciplinary conversations that are frank, serious, challenging, and substantive. “No other law school has ever attempted anything like it,” continues Riles. “It’s a tremendously important project, a new model, and after a very successful year-long incubation period, our online community is set to expand dramatically.”


The Institute for African Development
MUNA B. NDULO, Professor of Law
In 2001, when the Institute for African Development needed a new director and a new vision, it looked to Muna Ndulo, who responded by expanding the organization far beyond its original focus on food, hunger, and nutrition, and broadening its approach to include faculty members from all eleven schools and colleges across the university. Ten years later, when Sudan resolved its decades-long civil war, Professor Ndulo was part of a team of consultants engaged by the National Democratic Institute to help in the constitutional making process in that country.


Calling it “an ongoing project of international importance,” Ndulo enlisted the help of two J.D. students (Kamilka Malwatte ’11 and Lilian Balasanian ’11) and two LL.M. students (Calli Ferreira, LL.M. ’11 and Ejemen Ofoman, LL.M. ’11), who scoured other constitutions to determine a set of best practices, and ended the semester with a completed draft. “I found their expertise and dedication to the project inspiring,” says Ndulo, who had previously been a consultant to the Kenya and Zimbabwe constitutional processes. “By engaging in this kind of work, our students learn how to structure institutions that can resolve conflicts and disputes, especially the human rights issues that come up in the course of war. It is a multifaceted training that produces lawyers who are sensitive to the needs of the community and the world, with a deep understanding of the importance of serving society.”


Originally from Zambia, Ndulo has a long history of service, both before and after his appointment at IAD, an area program within the Mario Einaudi Center for International Studies. He was a member of the African Union’s High Level Panel on Darfur, Senior Political and Legal Adviser to the Special Representative of the UN Secretary General to South Africa, a legal adviser to the UN Assistance Mission to East Timor, and a legal expert to the UN Assistance Mission to Afghanistan. He has acted as consultant to the African Development Bank and helped the Bank to set up the Africa Legal Support Facility (ALSF), the World Bank, the Economic Commission for Africa, and the International Labor Organization, and continues to serve on the boards of the Southern African Institute for Public Policy and Research, Human Rights Watch (Africa), and the Avon Global Center for Women and Justice.


As an internationally recognized scholar in the fields of constitutional law, governance and institution building, human rights, and investment and trade law, Ndulo has published fourteen books, including 2012’s The Food and Financial Crises in Sub-Saharan Africa: Origins, Outcomes, and Policy Implications (co-edited with David Lee), along with eighteen chapters and more than ninety articles in academic journals. Earlier this year, the New York African Studies Association honored him with its 2012 Distinguished Africanist Award for his scholarly achievements.


In the past year, Ndulo and his students have focused on Somalia, contributing legal research and strategies for the transition from war and lawlessness to a constitutional democracy; one paper discussed possible electoral systems, while another explained the necessary steps in creating an electoral commission (see p. 35). “We’ve been feeding into the discussions and outlining issues that people in Somalia should be looking at, and now that they’ve agreed to set up a constitutional assembly, we hope our involvement will continue,” says Ndulo. “This is central to our work at the institute, where our mandate is to promote cooperation between Africa and Cornell, develop links with African institutions, contribute to policy debates on a wide range of subjects, including law, and promote economic development. We want to see an Africa that is progressive, developed, and prosperous.”


The Avon Global Center for Women and Justice
SITAL KALANTRY, Associate Clinical Professor of Law
At a roundtable discussion at the U.S. State Department in March 2008, legal professionals from around the world met to explore ways to end violence against women. As a result of those discussions, Sital Kalantry and Kim Azzarelli ‘97 co-founded the Avon Global Center for Women and Justice, which works closely with judges, lawyers, governmental organizations, and NGOs to improve women’s access to justice. The Center for Women and Justice takes into account the perspective of judges in its programming and accepts requests from judges across the globe to conduct pro bono legal research on issues relating to women’s access to justice. The Center has studied sexual violence against girls in Zambian schools, researched the barriers faced in New York State courts by survivors of domestic abuse, provided trial advocacy training to lawyers working on cases of human trafficking in Liberia, and reported on acid attacks against women and girls in Bangladesh, Cambodia, and India.


“As a practice-oriented research center based in a university, we are able to delve deeply into problems and design solutions based on our research. Activists in the field often do not have the time or resources to do that,” says Professor Kalantry, faculty director of the Center, who has written extensively on acid violence, supervised a wide array of international human rights and immigration law projects, and drafted a training manual on international fair trial standards for court judges in India.


Along with its clinical projects, the Center provides support and research to judges, offering both topical resources and in-depth analysis of particular issues. The Center hosts an online library of legal resources on its website; organizes an annual conference for judges, legal professionals, and advocates; designs training programs for lawyers and judges; investigates and publishes reports on relevant issues; and promotes effective implementation of laws relating to women’s access to justice.


“By studying gender violence, we provide a unique opportunity for students to think about the issues behind it, to gain sensitivity to women around the world, and to become passionately engaged in the issues of international human rights.” says Kalantry, who also directs the International Human Rights Clinic. “Through the clinic, students take an active role conducting in-depth, legal, factual research, and developing workable solutions based on that work.”


For the Center’s recent accomplishments, Kalantry points to a conference in New Delhi, which drew more than 200 legal professionals to Jindal Global Law School to talk about “Gender-Based Violence and Justice in South Asia” (see p. 52). The Center also participated in the Senior Roundtable for Judges in March 2012; the Justice Ruth Bader Ginsburg Symposium on International Women’s Rights, held at the National Association of Women Judges’ annual conference in 2011; a roundtable discussion with five Ghanaian women judges that focused on domestic violence and incarceration; and the third annual visit to the Center by an international delegation of women legal professionals, organized through the U.S. Department of State. “By bringing together judges, policy-makers, activists, and other stakeholders who don’t ordinarily talk to one another, we’re creating a transborder comparative dialogue that is aimed at identifying and sharing best practices,” suggests Kalantry.

 


The Clarke Initiative for Law and Development in the Middle East and North Africa
CHANTAL THOMAS, Professor of Law
In the three years since Chantal Thomas was appointed to lead the Clarke Initiative for Law and Development in the Middle East and North Africa, the world has seen a series of profound social, political, economic, and legal transformations across the region. From North Africa to the Levant, reformers and counter-reformers have struggled to reshape the balance of power. Thomas and the Initiative have raced to keep pace with the changes. 

 

Beginning with a conference on law and development in the fall of 2009, the Initiative has organized a set of interdisciplinary meetings on some of the most challenging issues of the day, from human rights to modernization, post-colonialism, global legal education, and competition for natural resources. This past year saw the Initiative host an international conference on the topic “Water Scarcity and Policy in the Middle East and Mediterranean” (see p. 46); enter into a partnership with the World Bank’s Global Forum on Law, Justice, and Development; cosponsor a conference on the topic “Labor and Migration in the Middle East” at the University of Toronto; in partnership with the International Law Journal, mark the one-year anniversary of the Arab Spring with a symposium on “Forces Without Borders: Non-State Actors in a Changing Middle East” at the Law School (see p. 37); and, following on its Fall 2011 speaker series, host a Spring 2012 scholarly workshop on “Law, Revolution, and Reform in the Arab World.”

 


“This year’s conferences represent the fruition of one of the major goals of the Initiative, which is to advance research and scholarship in ways that will have an impact within scholarly discourse,” says Thomas, who chaired the Law Department at the American University in Cairo from 2007 to 2008, and whose research focuses on the relationship among international law, political economy, and social justice. “Our vision is to reconsider the region from the perspective of law and development, recognizing that this complex collection of low, medium, and high income states shares many similarities in the Palestinian territories. “To me, that’s at the core of what it means to be a lawyer: always to be aware of your professional responsibility to contribute to the public good. In the case of the Clarke Initiative and the Middle East/North Africa, that means remaining mindful of the challenges facing this region and helping to develop modes of legal analysis that can positively impact efforts to advance social welfare. The Initiative reflects that commitment.”


Graduate Legal Studies
MITCHEL LASSER, the Jack G. Clarke Professor of Law
With his first monograph, Judicial Deliberations: A Comparative Analysis of Judicial Transparency and Legitimacy (2004), Mitchel Lasser transformed the way scholars think about the European Court of Justice, the French Cour de cassation, and the U.S. Supreme Court. With his second, Judicial Transformations: The Rights Revolution in the Courts of Europe (2009), which focused on changes in French law since 2008, he authoritatively bridged the gaps between scholarship on European and domestic law. Taken together, they’ve been called “the two best books on France in the last twenty years.” Lasser’s next book project will examine how the European Court of Human Rights’ jurisprudence regarding the separation of powers has been transforming the French and UK high courts; but for Lasser, some of his most satisfying work is the opportunity to work with graduate students.

 

“To me, and to many scholars here at Cornell, there is no greater pleasure than overseeing doctoral research,” says Lasser, who directs graduate legal studies, which is administered through the Law School’s international program. “The joy of helping graduate students become serious scholars is absolutely irreplaceable, renewing my own commitment to research and reminding me of the scope and ambition we should all have all the time. It inspires me, triggers all kinds of research questions, provokes responses that significantly improve my own writing, and brings a panoramic vision that I wouldn’t otherwise have.” In a typical year, the graduate program will welcome between sixty-five and seventy-five new master’s students, virtually all of them from abroad, where they’ve worked as judges, academics, government ministers, human rights workers, or lawyers. Of those students, between one and three will typically continue on to the doctoral program, where Lasser and his faculty colleagues have recently overseen dissertations on property disputes in rural Colombia, human rights organizations in East Asia, judicial institutional reforms in the U.S. and abroad, and a comparison of American and European approaches to healthcare.

“One of the things that’s unique about Cornell Law is the way graduate students are integrated into the educational and social life of the entire school, which is not the case at most grad programs around the country,” says Lasser. “This program really brings the world to Cornell, which produces tangible positive effects in a number of ways. First and foremost, the great majority of our international grad students will return to their home countries, taking their Cornell education with them, and emphasizing how we think about legal problems.


“Second is the effect it has on all of us by bringing the perspectives of sixty-five to seventy-five jurists who’ve been trained in a wide range of different legal systems,” he continues. “Here we are in upstate New York, being challenged by people who have been legally trained in China, Japan, France, Germany, Latin America, or any number of places. That rubs off on all of us, from students to professors. We may not always agree about what should be done about a given problem, but we tend to share the belief that good lawyering can produce thoughtful policy responses and positive structural changes in political, legal, and social systems worldwide. That optimistic perspective is much of what we export, and that’s why we and our students are here together.”


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