Dispute Resolution and the Normalization of International Adjudication

I attended a conference at NYU two weeks ago as part of NYU’s Journal of International Law & Politics symposium on the “Normalization of Adjudication in Complex International Governance Regimes.” Invited to bring a little dispute resolution to this otherwise complete adjudicatory focus, it was very interesting to think about what the “normalization” of international courts and decisions might mean for dispute resolution. I came to this conference with some background in writing on international trade dispute resolution regarding the evolution of international dispute resolution and the importance of individual representation in courts, but had left much of this behind to focus on dispute resolution more broadly. More recently, I have had the opportunity to think about a number of interesting co-existing features in the development of international law and dispute resolution. First, as I wrote about last year, it is a striking coincidence that as we worry about the “vanishing trial” in the U.S., the international scene has been exploding with new courts (WTO, Rwanda, Yugoslavia, Sierra Leone, etc.) and expanded case loads even for longer-standing courts (the ICJ, ECJ, ECHR, IACHR, etc.). This does not even include the multitude of other processes designed to deal with global conflict, including truth and reconciliations commissions like those in South Africa and in many South American countries. So, last spring at PON’s dispute system design symposium, I was able to broaden my perspective and think about the concerns and challenges faced by DSD when creating systems to deal with human rights conflicts and, what has been called, transitional justice situations. (Click here to see my draft article on this entitled Dispute System Design and Transitional Justice.)

My next step, the paper for this NYU symposium, will now look forward to where we go from here.

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Religious Freedom — or Oppression?

The BBC reports that a group in the U.K. called the Centre for Social Cohesion has issued a report finding that European governments have not done enough to protect the free speech of Muslims from other Muslims.

According to the report, Muslim reformers have not been sufficiently protected from attacks by Muslim extremists, citing as a prime example (but it offers many others) the fatwah against Sir Salman Rushdie for the publication of The Satanic Verses. It called on European governments to treat Muslims “as complete citizens, neither restricted in their freedoms nor unduly permitted to issue threats against others.”

The report suggests, in other words, a kind of multicultural condescension — a view that fatwas and threats of violence are simply the Islamic way and must, at least within the community, be tolerated. Of course, this becomes sort of a self-fulfilling prophecy as Islamic reformers are run off. When the lion is allowed to lie down with the lamb, what follows is usually dinner.

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If The Drew Fits, Charge It?

Being fascinated with both the use (and misuse) of technology and criminal law in general, I have been intently following the Lori Drew case. For those of you who haven’t, however, Drew is the Missouri mother who — as a response to some animus between 13-year-old Megan Meier and Drew’s daughter — created a false persona, “Josh Evans,” on Myspace to flirt with and gain the trust of Meier, then insulted and demeaned her to the point where Meier committed suicide. Missouri state officials reviewed the case, but felt that there was no appropriate state statute under which to bring charges against Drew; federal prosecutors in Missouri declined to charge the case for similar reasons. However, federal prosecutors in California (where Myspace’s servers are located) disagreed; claiming jurisdiction, they charged and were subsequently able to indict Drew under 18 U.S.C. § 1030, the Computer Fraud and Abuse Act (CFAA). Specifically, the U.S. Attorney’s Office in California is charging her with violating 18 U.S.C. § 1030 (a)(2)(C), which makes it a crime for anyone to

intentionally access[] a computer without authorization or exceed[] authorized access, and thereby obtain[] . . . information from any protected computer if the conduct involved an interstate or foreign communication.

The indictment can be found here, if anyone is interested in reading it, but the gist of the argument that the AUSAs in California are making is that by giving fictitious profile information, Drew violated Myspace’s Terms of Service, thus “exceeding” the access authorized by Myspace. Then, as she used this fictitious profile to “obtain information” from Myspace’s servers — personal information about Megan, as best as I can tell — to commit the tort of infliction of emotional distress upon Meier, and since to access Myspace’s servers she was required to send packets of data across state lines, she met all the elements of the crime.

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