International Relations and Comparative Law
In 1958, while a Teaching Fellow at Harvard, I applied to the Asia Foundation for duty in India. They were then trying to help in the establishment of democratic legal institutions in that very important country. They sent someone else.
In 1970, I spent a semester in Bogota as part of the Ford Foundation’s efforts to facilitate the law and development movement in that country. I recently published a brief account in Alibi, a literary journal produced by Duke Law students. My Mission to Bogota.
It had been no part of my scheme as Dean to internationalize the Duke Law School, but that is what happened on my watch. In 1980, I received a letter from Shi Xi-min, a student in China who wished to come to Duke to study law. He had been twice in prison, served as a helicopter pilot, and translated two Faulkner novels into Mandarin. Al Philipp, a Duke Law alumnus who was attorney for an airline got him a free ride to New York; another alumnus, Richard Nixon, got him a visa. I got him a summer job with a New York firm that paid his living expenses, and I waived his tuition. One thing led to another, and I made similar arrangements for about 25 students who came from the PRC for three years at our law school. This was the beginning of the connection between the Law School and the Far East. The story is told in Duke Law School in China. That account does not record the elevation of Gao Xi-qing who is now the CEO of the Sovereignty Fund holding a trillion or so in investments in American firms. I take great satisfaction in his remarkable achievements.
We created an international law program for American students at the same time that the number of international students exploded. Don and Judy Horowitz were important to that effort. Melvin Shimm and Pamela Gann established a law school summer program for our students and European students in Holte, Denmark. It presently resides in Geneva. I will be its resident manager in July 2008. We also hired faculty from around the world.
In 1985, while still Dean, chance brought me a client who was President of the Philippine Bar Association and a sugar grower. He sought to recover on behalf of himself and other sugar growers for the damage inflicted on them by the recently defunct Marcos regime. I took the case on a contingent fee payable to the Law School. I lined up major law firms willing on a contingency basis to handle claims against the principal malefactor in the sugar business, one Benedicto, and against a large New York bank and British and Japanese sugar traders, who were working with Benedicto. I recruited an alumnus, Marne Gleason, to help me, and we went to Manila and Bagolod on the island of Negros. In Bagalod, we found a potential class of plaintiffs, but in Manila we were unable to secure the promise that the government would let us retain any assets we recovered for the sugar growers.
In 1990, I spent a semester at the University of Tokyo and acquired an interest in Japanese culture and politics. In 1995, I sent a semester at the University of Hawaii and acquired an interest in that novel culture and in the history of the islands.
In 2000, I spent a summer lecturing at Freiburg in Germany. By this time I had acquired enough fragments of knowledge about continental legal systems to want to learn more. I am still very much an amateur in that field, but know enough to be helpful in explaining American law to those trained in a very different tradition. I offered an improved version of the course at Bucerius Law School in 2004, and offered parts of it at Doshisha University Law School in 2006.
A lecture I gave to German businessmen at Bitburg in 2003 was well-received and has been circulated in Germany. The American Tradition of Private Law Enforcement. This work has led me to be skeptical about the wisdom of the efforts of the American Law Institute to harmonize American with European law. Their notions about law and its relation to politics, and about the nature of the profession, are simply incompatible with American notions about what can and should happen in our courthouses. That is no less true of English institutions notwithstanding the historical connections between English and American law. I have since lectured on the subject to audiences in Berlin and Tokyo, and plan to continue to pursue the subject as one having possible importance in dealing with international problems of corruption and environmental wrongs. I am skeptical that traditional civil procedure in most other countries can adequately enable private enforcement of public or international law. In May 2006, I lectured at three Japanese universities on this subject, and discussed the topic in October 2006 at Transparency International in Berlin, Max Planck Institute in Hamburg, and at the University of Ghent conference on the bicentennial of the Napoleonic Code of Civil Procedure . I am still at work elaborating the idea that numerous features of the American institutions disparaged by many Europeans may be keys to dealing with industrial harms to the environment or with corruption in many nations afflicted with weak governments, perhaps especially those with natural resources desired by the "developed" world. I have presented this view to recent conferences at Duke and at Bremen, and hope to continue on this path in 2009.. My present thoughts are stated Deterring Transnational Corruption.
In 2005, I was employed to assist lawyers in Houston who were representing hundreds of small farmers in Bangladesh whose property was destroyed by a gas well blowout. Those responsible were a Canadian entrepreneur and a Texas drilling company. I wrote a brief explaining that their case should be heard in a Texas state court and not dismissed on the ground that Bangladesh courts were the more convenient forum. My reasons were that the Bangladesh regime was corrupt and that unconscionable delay would result. My effort was not successful, but that experience elevated my awareness of the consequences of corruption in weak states and gave rise to my interest in the Foreign Corrupt Practices Act and the False Claims Act. It also led to another employment in 2008 to assist London lawyers representing an English firm in an arbitration proceeding against the government of Equatorial Guinea. The government has invoked a judgment rendered by its court as a bar to the claim. I have certified that the proceeding in the court of Equatorial Guinea was not an authentic legal proceeding. My judgment was rooted in reports of Transparency International, Global Witness, the International Bar Association, Reporters without Borders, the US Central Intelligence Agency.
In 2008, I presented my views at a conference at the University of Bremen. The papers were published. Its notions were advanced again at a conference at the University of Georgia in 2009, at the 2009 Law and Society Conference, and in 2010 to an ABA continuing education program. In 2010, I published in China a short essay on the need for Chinese engagement in addressing the problem of transnational bribery. In light of responses, I have since reviewed the issues and written an essay advancing the idea that the World Bank may need to establish a forum in which private victims might enforce international corruption laws. That paper will be published in 2010 by the Michigan Journal of International Law. And meanwhile, Susan Rose-Ackerman of Yale and I persuaded the Rockefeller Foundation to host a small international conference on the topic of transnational corruption. Our conference was held held at Bellagio in June 2011 and is likely to result in a volume of paoers assembled and edited by Rose-Ackerman..
Also addressing international issues, I had begun in 1988 to study systematically the history of American legal education and legal profession. One of the themes I found running through those accounts was an evangelical impulse of American lawyers who have since 1776 telling the world about first principles. I started a book about their efforts. It was a work in progress when the Bush administration announced plans to create democracy in Iraq. I thought the idea ludicrous and told everyone with whom I had e-mail connection. Exporting Democracy to Iraq. This paper was translated into Chinese and was, I am told, fairly widely circulated in China. In 2005, I at last published Spreading America’s Word: Stories of Our Lawyer-Missionaries. Echos of that work have appeared in the Bucerius Law Review, the William and Mary Law Review, and the North Carolina Journal of International and Commercial Law..
Other utterances on this general topic are:
Book Review, Alexandrowicz: Constitutional Developments in India, 71 Harv. L. Rev. 1590 (1958)
Statement on Student Rights and Responsibilities, 1 J. Human Rights 140 (1970) (with others) republished: Revista de Derechos Humanos (1971)
Trial by Jury in Civil Litigation: An American Idiosyncracy, in United States/Japan Commercial Law and Trade (Kusuda-Smick ed. 1990)
International Litigation in the Courts of the United States, in The International Symposium on Civil Justice In The Era of Globalization: Collected Reports (1993)
Der Einschluss kontinentalen Rechts und Juristen und Rechtskultur der USA, 1776-1933, 11 Juristen Zeitung 183 (1995) republished as The Influences of Continental Law on American Legal Education and Legal Institutions, in Toward Comparative Law in the 21st Century at 1037 (Chuo University Press, Tokyo, 1998)
Professor Wigmore, 1 Toin L. Rev. 219 (1995)(in Japanese)
Moths to the Light: The Dubious Virtues of American Civil Procedure, 48 U. Kan. L. Rev. 1 (1998) and in Festschrift fur Bernhard Grossfeld zum 65. Geburtstag 129 (Ulrich Hubner & Werner Ebke ed., Frankfurt, 1999)
The Civil Jury and American Democracy, 13 Duke J. Comp & Intl L. 79 (2003)
Die Streit-Macht: Amerikaner klagen gern. Wie aber funktioniert das Rechtsystem der USA? Und wie wirkt es sich auf die Globulisierung aus?, Der Tagesspiegel, November 18, 2003 at 57.
The American Tradition of Private Law Enforcement, in Bitburger Gespräche Jahrbuch 2003
Harmonization of Civil Procedure in Diverse American Jurisdictions, in Discretionaire Bevoegheid van de Rechter: Grenzen en Controle (M. Storme & B. Hess eds. Maastricht 2004)
Asbestos and Court Delay in the United States, in The Law’s Delay: Essays on Undue Delay in Civil Litigation, von Rhee ed., Institute for Transnational Legal Research, Maastricht 2004)
Democracy at the American Courthouse: Distinctive
Features of American Legal
Institutions" Humboldt University Law Forum, der Tagespiegel , October 22 2003, republished at http://www.humboldt-forum-recht.de/7-2004/index.html (Berllin 2004).
Duke Law in China: A Remembrance, Duke Law Magazine 24 (Fall 2005)
The American College of Cardinals, Association for German-American Relations (2005)
Foreign Plaintiffs in U.S. Courts: Private Enforcement of Public Law, 1 Waseda J. Comp. L. --(2007)
Civil Procedure to Enforce Transnational Rights, Proceedings of 2006 Conference on Civil Procedure Code, University of Ghent (2007)
Mandatory Constitutions, Bucerius Law Review (2007)
Could and Should America Have Made an Ottoman Republic?, Wm & Mary L. Rev. (2008)
Writing Other Peoples’ Constitutions, North Carolina Journal of International and Commercial Law (2008)
Law and Transnational Corruption: Globalizing Lincoln’s Law, L&CP (2008)
republished as Law and Transnational Corruption: Is There A Need for Lincoln’s Law Abroad? in The Civil Consequences of Corruption (Berlin 2008)
The International Movement to Deter Corruption: Should China Join? 7 US-China Law Review 1 (2010)
Enforcing International Corrupt Practices Law. 32 Michigan J. Intl L. 129(2010)