Back in Moot Court

This week I've donned the judicial robe to sit six times on benches hearing arguments in the Jessup International Law Competition, which is held in Washington, D.C., this time each year. More than 100 teams from around the world compete--representing law schools and public policy programs--and the International Law Students Association manages to find some huge law firm to foot the bill. This year--White & Case; last year, Shearman & Sterling.

I got involved in this last year through the suggestion of my legal assistant on the Indonesia project I worked on in Jakarta about five years ago. She had represented the University of Indonesia law faculty in the Jessup Competition and then coached their term for several years. After winning a Fulbright to Boalt Hall at Berkeley, and passing the New York bar, she worked for an intellectual property firm in Austin and now is with a large Jakarta firm.

The competition requires all the teams to brief and argue a complex made-up case mythically set in the International Court of Justice in The Hague. The names of the countries are also made up but the legal issues are real. You may chuckle but in international law, the fact that a ship captain "discovered" a group of uninhabited islands in 1777, leaving a flag and a carved stone marker to show he was there, might be enough without more to support a successful claim derived from his being the first. Usually something commercial comes into play, so they have recently discovered oil near these islands, and the nearby nation that claims them versus a former colonial empire became independent right around the time that most of the South American countries did, in the 1820s.

There is a whole world of international law, made up of United Nations resolutions, ICJ and predecessor Permanent Court of Justice decisions, international conventions agreed to in Warsaw and Geneva, for example, and even a Convention that tells you to interpret other conventions, that one having been held in Vienna. There are all sorts of treaties, bilateral agreements, learned treatises, and other efforts to combine theories and precepts from both the Anglo-American common law and the European civil law.

I am always amazed that the concerned nations actually were willing on so many occasions to put their destinies in front of third-party panels or arbitrators. My favorite unlikely neutral was the one chosen in 1890 or so to decide the "Pig War" for control of the San Juan islands between British Columbia and Washington State--a conflict that left the remains of the British and American Camps as historic sites on San Juan Island. The Brits and Americans chose, of all people, Kaiser Wilhelm II. Perhaps the Kaiser was looking ahead because he seemed to come down on the side of the Americans when it came time to draw the line down through or around the islands.

The competition is fascinating to see how different students approach the task of argument. As with admiralty law, there are unusual terms: counsel are referred to as "Agents" and briefs are termed "Memorials." The argument style is a bit more formal than is common in the U.S., even the Supreme Court. If you make any kind of broad or conclusory statement, which might well serve to present your theory or underlying theme of the case, you will be peppered from the bench with demands for references to supporting authorities.

I've now sat with judges who are lawyers in Ghana, the Dominican Republic, and Germany this year and had an engaging conversation with a lawyer from Azerbaijan in the judges' lounge. To make my week complete, I long ago agreed to judge moot court arguments tomorrow night by some George Washington University law students. Amid their consideration of search provisions of criminal law, I might just ask them if they had considered the impact, say, of the Barcelona Traction case.

Out of Court Sparring

It remains to be seen whether the latest little foray by Chief Justice John Roberts will stir up the peapatch or just die on the vine. I do admit that I've wondered what the Supreme Court is doing attending the State of the Union--my assumption is that it is a relatively recent "tradition" that brings the three branches together. I say recent because until FDR's time, presidents did not deliver their State of the Union reports before joint sessions of Congress at all, preferring to transmit them in writing.

Given that Roberts was an advocate and a fairly well-known one, prior to his being named to the bench, one might assume that he's used to a bit of give-and-take. I suppose that being in the House and having the President turn to you and your colleagues as he unloaded against one of your decisions was a surprise but Harry Truman's remark about heat and kitchens comes to mind. Roberts and his right-wing pals can push counsel around in their courtroom but apparently what he called "hollering" in the legislative arena was too much for his tender ears.

He should show up at the British House of Commons some day and hear them roaring as the debate heats up. Roberts seems pretty sure of himself for a man who has spent his life being insulated from the pressures most of us must endure. If it were up to me, the White House would up the ante in terms of castigating the campaign finance decision, one that went way beyond the bounds of what needed to be decided to impose the activism of the conservatives on us.

After all those years of whacking the hell out of the Warren Court, are conservatives now telling us that it's not right to blast the Supreme Court? Utter nonsense--there are too few ways of getting their attention since they can ignore anything they don't want to hear. Roberts kept his nose clean and the Democrats were afraid to vote him down as an inappropriate nominee because of his reactionary background, as they also were with Alito.

It's about time that Obama puts up some real liberals for judicial vacancies. The system won't work if only the conservatives nominate their true believers. If you wonder why no one on the Supreme Court merits a whole lot of respect, it's because we have sunk to nominating people without significant ideological records. All the so-called "liberals" on the bench are really what we used to call moderates: Stevens, a law firm partner from Chicago whom Gerry Ford put on the court; David Souter, known in New Hampshire as a conservative attorney-general; and Ruth Bader Ginsburg and Stephen Breyer, two mildly progressive academics. O'Connor quit so a fellow Republican president, even one she may not have liked a whole lot, could name her successor.

The whole business and all the fakery that goes on about the nominations makes me realize that the eminently pragmatic FDR had it right when he tried to pack the joint. He too had a Supreme Court majority that decided it would keep the government from dealing with the worst economic crisis in our history. This Supreme Court majority--Roberts and his pals--deserve to worry the way the Nine Old Men in the 30s did.

Under Wonderland?

Two Friday nights spent seeing films which opened that day: last week, The Ghost Writer and today, Alice in Wonderland. Both were definitely worth seeing. Early impressions: Pierce Brosnan is much more believable now that he's a bit over the hill rather than beautiful. And I've resisted the appeal of Johnny Depp for a long time but he's a delightful Mad Hatter. The Ghost Writer demonstrates that Roman Polanski has not lost his touch in the slightest. He was always great at creating a film with subtle menacing not horror or thriller.

Unlike a lot of people in this country today, I would cut him a break after all these years. Yes, he did the wrong thing by running--leaving aside whether he was guilty of the crime. But the system had set itself up to do a number on him and he saw no other way out. Remember it was his wife who was murdered. By the way, Polanski has some fun making Brosnan's character a bit of a dissolute Tony Blair. And then he shows how in the end the Establishment squeezes anything but its version of what happened out of the picture.

Back to the movies. Tim Burton has taken the impossible-to-dramatize work of Lewis Carroll and had some fun with it. Some of the wonderful characters are there--Alan Rickman voicing the Caterpillar, one of my absolute favorites, was superb. Stephen Fry, too, voicing the Cheshire Cat, was equally adept. It was all good fun with little traces here and there of the original. I do wish that in addition to "off with their heads," they had retained two of the Red Queen's other marvelous lines: "Sentence first, trial later" and "Don't you have to run as fast as you can to stay in the same place?"

We seem today only to want to emphasize feet of clay. Was Lewis Carroll a bit dodgy in his liking for little girls? I recall reading about the long life of Alice Liddell, supposedly the model for Alice in the books. She sounded in her recollections like he was hardly dangerous, just hard to understand. The books themselves are delightfully full of the illogical conundrums that only a brilliant mathematician like Charles Dodgson could conjure up.