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Notes from the Director
 
The Center for International and Comparative Law (CICL) is undergoing some alterations in both its physical and programing space. We will be publishing this Monthly Newsletter to inform the Emory Community and beyond about upcoming programming, presentations, publications, and other news of interest.
 
In this first issue, we highlight two new monthly series that we began in September: “What We’ve Been Up To” and “Coffee and Conversation.”  The inaugural events for these series were well received, and we have exciting October sessions planned.  We also introduce you to a third new series: “Issues of International Interest.”  Atieno Mboya Samandari, one of our postdocs who will be working on an international environmental stream at CICL, will do the inaugural session on October 18. Finally, we want to introduce you to one of our substantive themes for the year: “The Constitution of Everyday Life: A Comparative Law and Policy Perspective.”
 
We welcome your interest, as well as suggestions and offers of assistance and hope to see you at our upcoming events!

Regards, Martha   
Martha Albertson Fineman
Robert W. Woodruff Professor of Law
Director, Center for International and Comparative Law
New Monthly Series:
What We've Been Up To

The idea behind these presentations is not necessarily for someone to give a formal presentation of a paper or chapter.  What we hope to provide is an opportunity for us, as an intellectual community, to engage with each other – discussing why we do what we do, why we care about the topics and ideas we research and teach, and why others should also care about them. We hope that in addition to learning more about what our colleagues are doing, this opportunity for hearing what motivates someone’s research into a particular area or aspect of law might reveal scholarly connections with our own that are not always immediately apparent.
Professor Matt Lawrence introduced Professor Mary Dudziak, surprising her (and us) with an official proclamation signed by Governor Perdue declaring and honoring Korean War Veterans Recognition Day that noted "it is our duty to educate every generation on the lessons and the historical impact of the Korean War."  Matt explained he found the proclamation for sale at a yard sale and “naturally thought of Mary....I'd been procrastinating on giving it to her, so this event turned out perfect for that.” 
 
Mary’s talk drew from her recently published piece, The Gloss of War.  Dudziak, Mary L., The Gloss of War (February 15, 2022). Michigan Law Review, Forthcoming, Emory Legal Studies Research Paper , Available at SSRN: https://ssrn.com/abstract=4049263 or http://dx.doi.org/10.2139/ssrn.4049263

Magdalena Tulibacka, Lecturer in International and Comparative Law, made these observations about the discussion:
“On Wednesday September 28th, Professor Mary Dudziak gave the inaugural talk for CICL's monthly "What We’ve Been Up To" series. The series features faculty discussing why and how they are pursuing their current projects and areas of research. Professor Matt Lawrence introduced Prof. Dudziak. She discussed the ubiquity of war, drawing from her recently published piece, The Gloss of War. Prof. Dudziak’s speech demonstrated how, in war powers analysis, reliance on the interpretive method of historical practice also called the “gloss of history,” has made history a technology of the forever war. She drew upon the history of U.S. military conflict, and specifically the Korean war, to interpret the separation of powers. She argued that the “gloss of history” approach has led to Presidential overreach. This overreach is not recognized and corrected, but instead built into the doctrine of expanding unilateral power.
Prof. Dudziak examined how war became enshrined in the American culture and consciousness, so that American civilians do not pay much attention to it. This process further drives presidential unilateralism. Once a story of a war is built into legal precedent, it then becomes law, and new understandings of history are not reflected. She pointed to the need for reform of the substantive and procedural guarantees for Congressional participation in taking decisions on taking the country to war. This law reform needs to be informed by thinking grounded in historiography, not the “gloss of history”.
 
Dudziak also discussed her research methodology, and specifically her travels to places where massacres took place during wars where the U.S. was involved. Her travels are inspired by the need to understand the geography of an atrocity, to help her narrate the stories she tells. She is portraying the war as a way to accomplish political purposes through killing. Being in a place where an atrocity happened helps her pay attention to the suffering. She is mindful that she, like other historians, uses people and their stories, to show that humanity is built into law and into history.
A lively discussion followed Prof. Dudziak’s presentation. Some comments related to the role of international law and geopolitics of wars, including the current war in Ukraine. Prof. Dudziak mentioned how such international arguments are sometimes used in the domestic debates to justify getting involved in a war. However, she also pointed out that law reforms ought to be discussed outside of the context of any specific international emergency.
 
This was a wonderfully stimulating start to a series of discussions on international and comparative law research. We are looking forward to the next discussion.”
Upcoming in October
On October 26, Professor Polly Price will discuss her recently published book: Plagues in the Nation: How Epidemics Shaped America.  She will be introduced by Professor Jonathan Nash.
Every Third Thursday:
Coffee and Conversation

On September 22 we held our very first “Coffee and Conversation.” We will have a session every third Thursday (give or take a week, depending on holidays and other events). The purpose of this event is to meet informally for some collegial discussion.  Although a brief news article will be circulated beforehand, it is offered as a mere suggestion for discussion – an “icebreaker” to get the conversation going.
Professor Paul Zwier attended the first Coffee and Conversation and offered this reflection:
 
“Like me, you might have been of two minds on Thursday, the 22d, as to whether to pull yourself away from your research for the "coffee and conversation" in the atrium outside the Center for International and Comparative Law.  I went and it was time well spent! 
 
My initial conversation partner was (soon to be Dr.) Pauline Schneider, a German graduate student with the Center and the VHC Initiative. She had just completed part of her Phd. Exams, which she explained to me were like orals, but about law, generally to see how the candidate deals with and expresses interest in "bigger picture" issues of law and policy.  
 
We also took up the conversation topic that Martha has proposed, a NYT opinion piece suggesting the US do away with the Constitution! The authors, Doerfler and Moyn, see the problem with progressive Constitutionalism as denying its goals are "political" and they are convinced after the Constitution is gone legislatures would enact legislation where "the distinction between 'higher law' and everyday politics effectively disappears." 
 
Pauline and I had a great discussion about whether interpretation of a constitution was in fact political, or whether constitutional reasoning was based on something different. It reminded me of conversations in the 80s and 90s over Duncan Kennedy's Critical Legal Theory, (and his later book, Critique of Adjudication). Having just read Stone and Strauss's 2020 book, Democracy and Equality: The Enduring Constitutional Vision of the Warren Court, which claimed the Constitution was the basis of expanded rights for equality, framed in democracy and free speech, I said I was worried that such a position throws out the baby with bathwater. Of course, Stone and Strauss do argue that the Constitution as interpreted by the more recent conservative majority is merely a throwback to concerns with property and state's rights, restricting expansions of equality. They also worried that the current Court adds to distrust in democracy at the national level. I am left to ponder that maybe the Warren Court’s vision is a thing of the past that with the death of RBG and retirement of Breyer, will never be recovered.
 
Pauline was sympathetic to my concerns over a Court too openly political but argued that part of the problem was in the way it was drafted. She felt that the German Constitution was a better document with which to create principled, even if political, based set of rules for equality concerns, human rights, and the environment. She told me about a new German Supreme Court ruling that creates a new ability of government to curtail carbon pollution, based in protecting the human rights of future generations.  She later sent me the opinion, which is a “must read” for an American scholar! 

When we took a break to get some food, we listened in on others in the group, who were discussing possible new conceptions of a "constitution" framed by vulnerability theory. Two of the Chinese visiting scholars explained they came from a system with a broader understanding of law, (embedded in governmental long-range plans and other customs in society).  They were excited by the idea of a “constitution of everyday life” and seemed to think that ideas, such as individual rights and equality, might actually constrain necessary changes for their country. (My own Calvinist roots kicked in at this point and on my way back to my desk I found myself thinking of the Dutch philosopher Hermann Dooyeweerd, and his views of "sphere sovereignty," (inherent sovereignty baked into relationships guiding family, labor, church, government) which are guided by unifying understanding of the "Word" of God, agape, shalom, (justice and peace) and human flourishing. 
 
I was challenged by the depth and thoughtfulness of the assembled group and returned to my research refreshed and inspired. I am looking forward to the next coffee and conversation -- come join in the conversation.
LLM student, Pauline Schneider also enjoyed the interaction:
 
I was pleased to participate in "Coffee and Conversation" at the Center for International and Comparative Law last Thursday (September 22). In addition to eating an excellent cherry pie and delicious organic (!) grapes, I met many new and interesting people with whom I had wonderful conversations. For me, as a current LL.M. student at Emory University and a researcher from Germany, it was a great opportunity to get in touch with faculty members I would not have met otherwise. I gained many new insights and also new contacts for my future research work.
 
I first had an extended conversation with Prof. Zwier. It was interesting for me to discuss the role of the German Constitutional Court with someone from the outside/from the American perspective. I quickly realized that the discussion of whether courts are "too political" is an international "hot topic," even if the actual implications vary. We discussed the differences between Germany and the U.S., including the lack of dissenting opinions in Germany (even if legally possible) and a more compromise-oriented appointment and confirmation process for the justices there. As a person with a legal background without juries, I also enjoyed our interesting discussion about this concept, Prof. Zwier’s new insights on the subject, and my impression that some professors in the U.S. hint that "good lawyering" means not taking the case to a jury.
 
My second meeting was with Sophie Wang, a Chinese visiting scholar and researcher currently working on Chinese child welfare system and law. She explained to me that the Chinese system was heavily influenced by the Japanese system, which in turn was influenced by the German system, and that it would therefore be helpful for her to have someone who could explain/translate the German roots of her research topic. Having worked for a professor in Germany for over 9 years who specializes in this field, I was more than happy to offer my help. I am very much looking forward to this exchange, as I am sure that I will also gain interesting insights on my part.
 
I returned from this meeting with enthusiasm to report to my LL.M. colleagues, who are now eager to attend the next sessions -- I am also very much looking forward to the next "Coffee and Conversation" - hopefully with delicious cherry pie again.








 





OCTOBER COFFEE AND CONVERSATION:

 
Thursday, October 20th
 9:30 a.m. to 11:00 a.m.
 
Icebreaker: "The Greatest Threat to Democracy Is a Feature of Democracy" available at: https://www.nytimes.com/2022/09/13/opinion/democracy-crisis-speech-trump.html?smid=nytcore-ios-share&referringSource=articleShare





New Series:
Issues of International Interest

Postdoctoral Fellow, Atieno Mboya Samandari will discuss her environmental law research on Tuesday, October 18 in this inaugural talk for CICL.
Among the many threats facing the globe, climate change stands out as an especially strong concern among citizens in advanced economies, according to a new Pew Research Center survey. A median of 75% across 19 countries in North America, Europe and the Asia-Pacific region label global climate change as a major threat. People around the world also express an optimism that the problems facing their country can be solved by working with other countries. A median of 64% say many problems can be solved by working together, while only 31% say that few problems can be solved by way of international cooperation. (Pew Research Center). This session will be a dialogue on common values and the role of law in addressing the threat of climate change, and will reference this article.

Atieno brings to the Center her experience with international agencies including the United Nations Convention to Combat Desertification (UNCCD), the United Nations Children's Fund (UNICEF) and the World Bank. She has contacts with international environmental lawyers affiliated with the United Nations Environment Program (UNEP) and the United Nations Framework Convention on Climate Change (UNFCCC).

Atieno has been an SSRC-MacAthur Foundation Visiting Scholar at the University of Kwa-Zulu Natal in South Africa, where she researched the role of human rights in promoting peace in a post-apartheid society. She is a member of the inaugural cohort of Harvard's IGLP Global Scholars Academy, where she presented her work on climate change and human vulnerability. She also recently completed a U.S. Scholar Fulbright Fellowship at the University of Nairobi's Faculty of Law in Kenya.

Atieno has published in the fields of international environmental law, human rights, gender and human vulnerability.  Her areas of teaching include 'Law, Sustainability and Development', 'International Environmental Law,' and 'Gender, Sexuality and the Law.' During her Fulbright Fellowship, she taught 'International Environmental Law' and researched law's mediating role in gender-differentiated access to potable water in high-density neighborhoods in Nairobi.  

Atieno is a graduate of Emory Law School's S.J.D. Program and also holds a Master of International and Comparative Law from Georgetown University Law Center. She will be coordinating international environmental law programming for the CICL.

This talk will take place in the Berman Library at the Center for the Study of Law and Religion from 2pm to 3pm.
New Series:
The Constitution of Everyday Life
A Comparative Law and Policy Project
In this multi-year project CICL will explore how fundamental societal institutions, such as the family, workplace, and healthcare systems, have been shaped in various legal cultures in the shadow of distinct foundational political principles. We are particularly interested in how conceptions of individual autonomy, liberty, and agency function to either restrain or legitimate governmental interventions and exercises of power, as well as how and when such interventions can be justified in the interest of societal or collective well-being in each legal culture.

The project will use an interdisciplinary approach, comparing the distinct political and legal cultures of other societies with that of the United States and their role in shaping notions of individual and state responsibility. We hope to partner with several groups or centers at universities in various parts of the world in undertaking this project.

We anticipate a series of workshops, in-person and accessible on zoom, beginning in January 2023. The first four sessions will be on contrasting theories/philosophies of state power and responsibility. We are aiming to have some visiting scholars interested in this topic come to Emory and hope to host a small in-person workshop in 2023.

We will hold an additional series of four sessions on specific social institutions and relations established and regulated by law and policy. These sessions will also be comparative, contrasting the institutional arrangements imagined in different legal/political cultures. The three areas currently planned are: institutions and relationships of: (a) social reproduction, such as the family and education; (b) commercial/economic, such as employment and corporate structures; and (c) public/social welfare, such as health care and social security systems.
Any Interest in a Reading/Discussion Group?
Let us know --- there are a lot of really good new (or relatively new) books of international and comparative law interest out there.
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