Volume 67, Spring 2015, Issue 1
Rutgers University Law Review Staff
It is our distinct honor to introduce this inaugural issue of the Rutgers University Law Review. Combining the best elements of the Camden-based Rutgers Law Journal and the Newark-based Rutgers Law Review, the Rutgers University Law Review represents a new beginning for legal education at Rutgers, The State University of New Jersey. The merger of the flagship student-edited journals from the Rutgers School of Law – Camden and the Rutgers School of Law – Newark is the leading edge of the comprehensive merger of the two law schools themselves that, pending ABA approval, will create a unified Rutgers University School of Law.
GLOBAL CHALLENGES—GLOBAL LAW SYMPOSIUM
On June 6–7, 2013, Swansea University College of Law in Wales, United Kingdom, convened a major symposium, “Global Challenges— Global Law: A Symposium on the Future of International Law and Global Governance.” The symposium brought together a group of preeminent legal scholars, social scientists, and philosophers to discuss themes from Professor Joel Trachtman’s recent new book, The Future of International Law: Global Government, published by Cambridge University Press in 2013. It also provided an opportunity to welcome Professor Trachtman to Swansea Law as its new Distinguished Research Professor of International Economic Law, joining other first-rank transatlantic legal scholars, including: Professor Dennis Patterson, Board of Governors Professor at Rutgers University School of Law at Camden; Philip Bobbitt, Herbert Wechsler Professor of Federal Jurisprudence and Director of the Center for National Security Law at Columbia Law School; and Anthony Sebok, Professor of Law at Benjamin N. Cardozo School of Law.
COSMOPOLITANISM AND GLOBAL LEGAL REGIMES
I will speak about cosmopolitanism and the global human rights regime. I think human rights are important. But, human rights claims are metaphysically difficult to sustain. Human rights scholar Amartya Sen, for example, entreats us to think about human rights claims as proposals for changing substantive law. I want to talk about human rights from the point of view of international law. My goal in this short paper is to identify a place where human rights discourse makes contact both with current events and with larger concepts in political theory. The larger concept I have in mind is “sovereignty.”
Globalization of trade has been with us for a long time. After World War II, globalization’s aim was government policy to avoid a repeat of the balkanization effect that occurred in the 1930s. States adopted the General Agreement on Tariff and Trade (“GATT”), and retained it, even after the United States Senate declined to accept the larger architecture of the International Trade Organization (“ITO”) in 1948. The European Economic Community (“EEC”), now the European Union (“EU”), was an early effort to further promote and accelerate trade amongst the original six Member States, although there were many other objectives. Its creation of the internal market, now between twenty-eight Members, could be seen as a pre-cursor to full-fledged globalization before the term received mainstream acceptance. Throughout its evolution, this EU mini- globalization highlighted many problems and offered solutions that scholars and policymakers previously never considered. As such, it presents an important inventory of and guide to the complications that may be expected now that globalization has taken off on a much larger scale. In South America, the Member States of Mercosur operate with less effort, but still in the same direction. Projects that are more limited operate in free trade areas such as the North American Free Trade Agreement (“NAFTA”). As of 2013, more may be considered in the US/EU Transatlantic Trade and Investment Partnership. After years of experience with these projects, especially in trade, the most important realization must be that globalization is by no means a new phenomenon. Rather, it has a long history and is established policy which also shows as such important examples of its institutionalization.
Every December, a big Coca-Cola poster goes up on Hotwell Road in Bristol, United Kingdom, near where I live. Within a few days, without fail, it will have been defaced with reference to the “Killer Coke” campaign. Then every year, I tell my daughters about the latest developments in the Alien Tort Statute (“ATS”); in 2013, there was a lot to tell. In this Article, I want to develop the theme of human rights treaties, which forms Chapter Six of Professor Joel P Trachtman’s book The Future of International Law: Global Government. I will also look at the potential horizontal effect of customary international law in the human rights field. The Coke case was an ATS case involving alleged complicity of a Coca-Cola licensee in violation of human rights in Colombia—a claim in a national court by a private party, against a private party, based on a violation of customary international law. I want to consider whether such claims are purely a U.S. phenomenon, whether such claims are likely to fade in the future given the United States Supreme Court’s decision in Kiobel, or whether such claims outline the basis of a new, universal form of civil liability based on violations of customary international law.
CONCEPT AND CONTRACT IN THE FUTURE OF INTERNATIONAL LAW
How will international law deal with the problems of large-scale cooperation the peoples of the world now face and will continue to face in the future? This is the very big question that Joel Trachtman deals with in his book The Future of International Law. Trachtman’s book builds on a theme from Wolfgang Friedmann’s classic 1964 book, The Changing Structure of International Law. Friedmann argues that international law is moving, and should move, from an international law of coexistence, governing inter-state diplomacy, to an international law of cooperation, governing “the pursuit of common human interests.” Trachtman argues that “international law may grow in a way similar to municipal law: establishing basic property rights and rules of security first and turning to creation of public goods and regulatory purposes later.” International law, according to Trachtman, “evolves functionally: it changes as its constituents determine new uses.” In this rich account, Trachtman shows how international law will have to be more extensive, broader in scope, more comprehensive in the kinds of things it regulates, and more effective, to deal with “expected changes in globalization, economic development, demography, technology and democracy.” International lawyers should readily appreciate the basic insight of the book, as they divide their work between the law of coexistence of states and matters of a regulatory nature.
Once lawyers and accountants were rarely if ever liable to non-clients for professional negligence. Today that is no longer the case; lawyers and accountants are potentially liable for failing to exercise reasonable care in a variety of settings. The doctrines applied in these cases vary widely, and the approaches of the jurisdictions in the application of the doctrines vary even more. Questions posed in the earliest days of the doctrines have not been conclusively answered. This article does not provide conclusive answers, but it does reframe the questions in a way that can clarify and inform courts’ analysis and lawyers’ arguments.
CALIFORNIA’S TERRITORIAL TURN IN CHOICE OF LAW
Michael H. Hoffheimer
Until the 1950s, American courts routinely applied territorial rules to decide what law to employ in cases presenting a conflict of laws. For example, under the traditional approach, courts applied the law of the place of the injury in torts and the law of the situs of the land for disputes involving real property.
Beginning in the 1950s, California courts helped lead a judicial “revolution” that resulted in most American courts abandoning traditional rules for policy-oriented approaches that considered a variety of factors. By the 1960s, California courts had adopted the interest analysis methodology for resolving false conflicts cases. In the 1970s, California courts became the preeminent international proponents of the comparative impairment methodology for resolving true conflicts.
While the history of treatment of lesbian, gay, bisexual, and transgender (“LGBT”) people in America is largely shameful, recent days have seen real change, with additional progress on the horizon. Although there have been setbacks, the past decade has seen a string of legal and political victories for LGBT individuals in American society—creating unmistakable momentum for full equality under the law. Setting the stage for these victories has been a burgeoning sense of societal acceptance and affirmation of non-heterosexual sexual orientations. At present, one cannot help but get the sense that it is only a matter of time before the final waves of equality sweep in and erode the remaining legal, political, and social barriers to full LGBT equality.
New Jersey’s constitution provides, in article IV, section 1, paragraph 2, that “[n]o person shall be a member of the Senate who shall not . . . have been a citizen and resident of the State for four years, and of the district for which he shall be elected one year, next before his election.” Additionally, “[n]o person shall be a member of the General Assembly who shall not . . . have been a citizen and resident of the State for two years, and of the district for which he shall be elected one year, next before his election.” For over a decade, however, the New Jersey Attorney General and the Secretary of State have been barred from enforcing this constitutional provision due to a federal district court’s injunction in Robertson v. Bartels (Robertson I). Robertson I concluded that the one-year-in-district residency requirement violated the Equal Protection Clause under a strict scrutiny analysis because it impeded on the fundamental right of “persons to run for public office [combined with] the right of voters to vote for candidates of their choice.” Thereafter, New Jersey Attorneys General and Secretaries of State relied on this opinion when supervising and enforcing the state’s election process, and allowed candidates to pursue and succeed in becoming elected to public office without meeting the in-district requirement.