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international law

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A jealous wife’s attempt to poison a rival gave the Supreme Court a splendid chance to detoxify a pernicious constitutional law doctrine about the scope of the treaty power, but yesterday the Court passed up the chance. [Earlier.] My colleague Ilya Shapiro explains. Chief Justice Roberts, for the majority: “The global need to prevent chemical warfare does not require the federal government to reach into the kitchen cupboard, or to treat a local assault with a chemical irritant as the deployment of a chemical weapon.”

P.S. Congratulations to my colleague Nicholas Quinn Rosenkranz and the Cato Institute amicus program (i.e. Ilya Shapiro) for the way Justice Scalia in his concurrence picks up whole chunks of argumentation from Nick’s 2005 HLR article on the treaty power and Cato’s recent amicus brief based on the same line of argument. Also, for those keeping score, this is another embarrassing 0-9 goose-egg defeat for the Obama administration, which once again took a position totally aggrandizing of federal government power and once again could not win for it the vote of even a single Justice. [piece slightly revised for style Tues. a.m.] More: Cato podcast with Ilya Shapiro.

“As part of trade talks, the European Union wants to ban the use of European names like Parmesan, feta and Gorgonzola on cheese made in the United States.” Having achieved some success in negotiations with Canada and Central American nations, Europe may seek to restrict marketing of U.S.-made cheeses such as Asiago, fontina, Muenster, and Neufchatel.

And it may not be just cheese. Other products could include bologna, Black Forest ham, Greek yogurt, Valencia oranges and prosciutto, among other foods.

No word on renaming French fries. [AP]

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Environmental roundup

by Walter Olson on March 12, 2014

  • Environmental advocates and their fans in the press come off badly in Chevron/Ecuador litigation scandal [Coyote, earlier]
  • Drought disaster unfolds in California’s Central Valley, where project water is allocated by fiat, not bid for in market [Allysia Finley, WSJ; San Jose Mercury-News]
  • Other large democracies resist the idea of packing environmental terms into trade treaties, and maybe they’re right [Simon Lester, Cato]
  • “A Tough Day in Court for the EPA’s Greenhouse Gas Regulations” [Andrew Grossman]
  • R.I.P. leading environmental law professor Joseph Sax [NYT, I discussed his work in Schools for Misrule]
  • Lawyers have hijacked Endangered Species Act [Congressional Working Group report via Washington Examiner editorial]
  • When science begins bringing extinct animals back to life, watch for unintended legal consequences [Tyler Cowen]

A testy exchange between Justice Stephen Breyer and Solicitor General Donald Verrilli Jr. “was not the only signal that the administration may have difficulty winning in the case of Bond v. United States, which began as a ‘lover’s triangle’ dispute from Pennsylvania but has mushroomed into a major test of the power of Congress to implement international treaties in ways that may interfere with the prerogatives of the 50 states.” [Tony Mauro, NLJ, Daniel Fisher, earlier on Bond] Michael Greve finds the administration’s stance “breathtakingly aggressive. … when the government stumbles into Court with no principle, rule, or line to cabin its assertion of power, it loses. That’s Lopez, that’s Morrison, that’s NFIB.” [Liberty Law] Related, Peter Spiro/OJ.

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From Cato, with video: “In 1920, in Missouri v. Holland, the Supreme Court seemed to say, contrary to basic constitutional principles, that a treaty could increase the legislative power of Congress. That issue is now back before the Court in Bond v. United States, a case with deliciously lurid facts involving adultery, revenge, and the Chemical Weapons Convention. Cato has filed an amicus brief in the case, written by Nicholas Rosenkranz, based on his Harvard Law Review article on the subject.” Earlier here.

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David Bosco, assistant professor at American University and contributing editor at Foreign Policy magazine, tweeting about the U.N. international small arms treaty that’s met with intense opposition from some gun-rights groups:

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Backers may mount a new push for Senate ratification of a treaty that signs away national sovereignty over various not-unimportant areas of domestic policy, on the rationale that its effects will be mostly symbolic since we have already enacted the far-reaching Americans with Disabilities Act (ADA). Iain Murray and Geoffrey McLatchey note that despite claims by proponents from President Obama on down, it is simply untrue that the Convention on the Rights of Persons with Disabilities (CRPD) does no more than elevate into permanent treaty status the ADA’s requirements:

…its provisions far surpass the ADA’s.

For example, the convention’s Article 27, which prohibits “discrimination on the basis of disability with regard to all matters concerning all forms of employment,” is a giant leap from the ADA’s employment standards stating, “no covered entity shall discriminate against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.” [Emphases added]

“Covered” entity and “qualified” individual are two major constraints on the regulatory scope of the A.D.A., and that’s just the start of the many ways in which the CRPD is of broader scope. I give many more examples here (see also).

Murray and McLatchey also note that

The CRPD also requires the United States to set up a propaganda agency. Yes, you read that right. Article 8 states that signatories must take “immediate and effective measures … to raise awareness throughout society, including at the family level, regarding persons with disabilities, and to foster respect for the rights and dignity of persons with disabilities.” It becomes the federal government’s duty to “combat stereotypes… in all areas of life” by “initiating and maintaining effective public awareness campaigns.”

Hans Bader points out another danger:

UN committees like to define free speech as discrimination against minority groups in violation of international treaties, making it dangerous to ratify such treaties. For example, the U.N. Committee on the Elimination of Racial Discrimination has ruled Germany violated international law by not prosecuting a former legislator for remarks to a scholarly journal about Turkish-immigrant welfare recipients that were deemed racially offensive. The UN committee ruled Germany’s failure to prosecute the speaker violated the International Convention on the Elimination of All Forms of Racial Discrimination.

While “anti-disability” speech is perhaps not as familiar concept than speech which offends sensibilities of race, religion, or gender, existing disabled-rights law has generated numerous cases in which speech considered insensitive or hurtful toward persons based on physical, mental, emotional or behavioral disabilities is taken as evidence of an unlawful “hostile environment.”

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New from me at Cato: in covering the U.N. disabled-rights treaty, the Boston Globe bids to earn back its old nickname of “The Glib.” Earlier on the treaty here, here, etc.

  • Let’s hope not: is Kony case reconciling conservatives to International Criminal Court? [New Republic] Sea Shepherd case shows Alien Tort Statute can serve “conservative” as well as “liberal” ends [Eugene Kontorovich, earlier]
  • “Why the U.S. Shouldn’t Sign On to Empty Human Rights Treaties” [Eric Posner, Slate, earlier]
  • Or maybe non-empty? U.N. Convention on Rights of Persons with Disabilities said to require enactment of strong Europe-wide equivalent of ADA [Disability Law]
  • A questionable free speech victory at the U.N. on defamation of religion [Jacob Mchangama]
  • Tales of “independent” court reports that weren’t: “Chevron-Ecuador case expert switches sides” [SF Chron, December]
  • New Kenneth Anderson book getting lots of recommendations: Living with the UN: American Responsibilities and International Order [Amazon]
  • “Revive Letters of Marque and Reprisal to Launch Cyber-Attacks Against China?” [Julian Ku/OJ]

Profs. Rick Pildes and Nicholas Rosenkranz have been debating the topic at Volokh Conspiracy [Pildes first, second; Rosenkranz first, second; more] The pending case of Bond v. U.S. will give the U.S. Supreme Court the chance to revisit Missouri v. Holland, the main precedent on the point [Julian Ku, Ilya Somin, Gerard Magliocca/Concur Op, Michael Greve, earlier here and here] More: Curtis Bradley, Lawfare.

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Disabled rights roundup

by Walter Olson on December 18, 2012

  • More reactions, besides mine, to Senate’s non-ratification of U.N. disabled-rights treaty [Hans Bader, NYT Room for Debate including notably David Kopel's, Julian Ku ("Support Ratification of the Convention on the Rights of Persons with Disabilities Because It Doesn’t Do Anything!"), Tyler Cowen (keep powder dry for bigger ratification battles), Peter Spiro (proposes end run around Senate)] More, Sept. 2013: Eric Voeten, Monkey Cage and more (dismissing as insignificant U.N. committee reports criticizing countries for alleged violations because “these reports can be and often are ignored,” and accusing treaty critics of being mere “conservative fantasists” because they take at their word their counterpart “liberal fantasists” who expect and welcome erosion of U.S. autonomy in domestic policy.)
  • As Department of Justice rolls out Olmstead settlements to more states, battles continue between disabled rights advocates seeking closure of large congregate facilities and family members who fear mentally disabled loved ones will fare worse in “community” settings [Philadelphia City Paper via Bagenstos, NYT on Georgia, earlier, more background] More, Sept. 2013: And here’s someone claiming that I’ve got it all wrong, Olmstead has already pre-settled whatever claims to a right-to-care might reasonably be asserted under CRPD. I don’t think so.
  • “Utilityman can’t climb utility poles, but has ADA claim against utility company” [Eric Meyer]
  • Kozinski: Disney “obviously mistaken” in arguing against use of Segway by disabled visitors [Sam Bagenstos; related, Walt Disney World, Eleventh Circuit]
  • Wendy’s franchisee agrees to pay $41,500 in EEOC settlement after turning away hearing-impaired cook applicant [EEOC]
  • California enacts compromise bill aimed at curtailing ADA filing mills [Sacramento Bee, LNL]
  • “Train your managers and supervisors never to discuss employees’ medical issues.” [Jon Hyman]

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By a vote of 61 to 38 with two-thirds needed, the U.S. Senate today failed to ratify the far-reaching Convention on the Rights of Persons with Disabilities, criticized in this space before. This morning I published an article in the Daily Caller laying out some of the many bad provisions of this treaty, which the United States is very fortunate to be clear of (at least for the moment; proponents may come back next year and try to ratify it again in a slightly more favorable Senate). After the Senate vote, I added a followup at Cato at Liberty correcting persistent misinformation about the treaty that’s appeared everywhere from a New York Times editorial to a Media Matters blog post (assuming that’s really such a wide range any more).

A footnote: the U.S. Chamber of Commerce, which really should know better, backed the treaty, which it erroneously asserted “would not require any changes to existing law in order for the U.S. to comply with its provisions.” The Chamber’s most remarkable argument?

…ratification will help to level the playing field for U.S. businesses, which currently compete with foreign counterparts who do not have to adhere to our high standards when it comes to accommodation and accessibility for individuals with disabilities.

So it’s a misery-loves-company argument: if America is going to burden business with costly mandates, we’d better make sure competitors’ countries do so too. Not the Chamber’s finest hour. And as I explain in my Daily Caller piece, the Convention does indeed prescribe mandates that go beyond anything in the current ADA, including employment coverage for the smallest employers (now exempted from the ADA’s equivalent), requirements for “guides, readers and professional sign language interpreters, to facilitate accessibility to buildings and other facilities open to the public,” a new right of disabled persons not to be discriminated against in the provision of life insurance, and much, much more. If U.S. companies find those sorts of new mandates unwelcome, I hope they’ll let the Chamber know.

More: Supercilious Washington Post columnist Dana Milbank doesn’t bother to engage Sen. Mike Lee’s arguments; Washington Post editorial is less supercilious but no more substantive.

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“The head of the United Nations’ International Narcotics Control Board is calling on Attorney General Eric Holder to legally challenge marijuana ballot initiatives in Colorado and Washington.” It seems the U.S. is a signatory to a U.N.-drafted 1961 treaty under which nations agree to “adopt such measures as may be necessary to prevent the misuse of, and illicit traffic in, the leaves of the cannabis plant.” [Mike Riggs, Reason; Jacob Sullum]

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International law roundup

by Walter Olson on October 19, 2012

  • Pregaming U.S. v. Bond, case where SCOTUS could revisit Missouri v. Holland treaty-power doctrine [Duncan Hollis, OJ, earlier here, etc.]
  • Military drones and international law: for professor-turned-State-official Koh, the dish is crow [Ku/OJ]
  • “Another UN Push for Global Taxation” [Dan Mitchell, Cato at Liberty]
  • “Free speech is a gift given to us in 1948 by U.N. officials? Who knew?” [Mark Steyn, NRO]
  • Lago Agrio, Ecuador saga: “Chevron claims Patton Boggs tried to cover up a fraud” [Roger Parloff, Fortune]
  • New Kenneth Anderson book, “Living with the U.N.” [Hoover Institute Press]
  • FCPA: “Foreign Firms Most Affected by a U.S. Law Barring Bribes” [New York Times]

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September 19 roundup

by Walter Olson on September 19, 2012

  • “Ohio Man Cites Obesity as Reason to Delay Execution” [WSJ Law Blog]
  • West Hollywood bans sale of fur, no bonfires on the beach, and a thousand other California bans [New York Times]
  • “Volunteers sued for ‘civil conspiracy’ for planning an open rival to WikiTravel” [Gyrovague]
  • Practice of check-rounding at some Chipotles allows class action lawyers to put in their two cents [Ted at PoL]
  • Daniel Fisher on business cases in the upcoming Supreme Court term [Forbes]
  • In Bond v. U.S., coming back like a boomerang from an earlier ruling, Supreme Court may at last have to resolve whether the federal government can expand its constitutional powers just by signing on to treaties [Ilya Shapiro and Trevor Burrus, Cato]
  • Law nerd’s heavy-breather: “50 Shades of Administrative Law” [LawProfBlawg]

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International law roundup

by Walter Olson on August 24, 2012

I was at this interesting event yesterday and you can follow my live-Tweeting here.