Yale Law School Blogs

Rebellious Track #2: The Pogues - And the Band Played Waltzing Matilda (written by Eric Bogle)

seth — Mon, 23 Nov 2009 21:53:00 GMT

President Obama has recently called a summit to discuss the Afghan war and to debate the contentious issue of whether to send 40,000 more troops to fight in the conflict that has been battering the country since 2001. Polls in the U.S. indicate that people are split nearly evenly on whether more or less American soldiers belong in Afghanistan. This comes along with the news (reported here in the New York Times), that Iraq faces a constitutional crisis in the coming year, on the eve of America's planned "waterfall" troop withdrawal in the spring, throwing another wrench into George Bush's plan to spread democracy in the Middle East with the midas touch of the American military. Never has there been a more important time to reflect upon the purpose and impact of war. Eric Bogle's mournful and inspiring song And the Band Played Waltzing Matilda (1971), covered here by Irish/English band the Pogues, tells the story of a young Australian man recruited to fight in the First World War and sent into battle at Gallipoli. The song eloquently expresses the brutality and futility of war, the fate of veterans, and the apathy of later generations, and has become an anthem for thousands of Australians and New Zealanders who make pilgrimages to Turkey for Anzac day to commemorate those lost in the battle.

"And as our ship pulled into Circular Quay

I looked at the place where me legs used to be

And thank Christ there was nobody waiting for me

To grieve and to mourn and to pity"

Treaty of Lisbon enters into force December 1, 2009

Teresa Miguel — Mon, 23 Nov 2009 19:55:00 GMT

HeinOnline's Blog this week has a nice entry on the Treaty of Lisbon with links to finding scholarly articles about the "Road to Lisbon" and other EU treaties.

Briefly, Czech President Vaclav Klaus ratified the Treaty of Lisbon on November 3, 2009. The Czech Republic was the final Member State to ratify the Treaty. The instrument of ratification was deposited in Rome on November 13, 2009 and will enter into force on December 1, 2009. The new EU presidency and other top jobs have now been filled. The EU's Europa database has indepth treatment of the Treaty of Lisbon.

The EU's "Your Guide to the Lisbon Treaty" highlights several prinipal provisions of the treaty:

1. More democracy, more openness: The Treaty gives you a stronger voice in decision-making.

2. Faster, more efficient decision-making: The Lisbon Treaty streamlines the EU’s decision-making procedures.

3. Modernising the EU’s institutions: A key aim of the Lisbon Treaty is to modernise the institutions that run the EU’s business and makes them more democratic.

4. Economic policy: The Lisbon Treaty confi rms the commitment to achieving economic and monetary union with the euro as the EU’s currency.

5. Th e European Union in the world: The EU pledges to promote the values of the EU in the world by contributing to:

• peace and security;
• sustainable development of the Earth;
• solidarity and mutual respect among peoples;
• free and fair trade;
• eradication of poverty;
• protection of human rights;
• respect for and enhancement of international law as defi ned, in particular, in the United Nations Charter.

6. Security and defence: The Lisbon Treaty spells out more clearly the EU’s role in the area of common foreign and security policy. Decisions on defence issues will continue to need unanimous approval of the 27 EU Member States.

7. Justice and crime: The Lisbon Treaty contains important new provisions strengthening the EU’s ability to fi ght international cross-border crime, illegal immigration, traffi cking of people, arms and drugs.

8. Social policy: The Lisbon Treaty steps up the EU’s social objectives. It provides that, in all its policies and actions, the EU will take into account the promotion of a high level of employment.

9. New areas of cooperation: The Lisbon Treaty has important provisions in a number of new policy areas reinforcing the EU’s ability to fi ght international cross-border crime, illegal immigration, traffi cking of women and children, drugs and arms.

10. Human rights: The Lisbon Treaty recognises the rights, freedoms and principles set out in the Charter of Fundamental Rights and makes the charter legally binding.

The law library also has a fine selection of material related to the Lisbon Treaty and the EU. See, for example:

The Lisbon Treaty: EU Constitutionalism without a Constitutional Treaty? KJE4443.32007 .L57 2008
Dividing Lines between the European Union and its Member States: The Impact of the Treaty of Lisbon. KJE4443.32007 .S54 2008
Comprendre le Traité de Lisbonne: Texte Consolidé Intégral de Traités: Explications et Commentaires. KJE970 .S28 2008

[Cases] Prison Privatization Judged Unconstitutional by the Supreme Court of Israel

akis.psygkas — Sun, 22 Nov 2009 17:34:00 GMT

The High Court of Justice in Israel put an end to years of controversy Thursday, November 19, by ruling that privately run prisons are unconstitutional. The full text of this landmark decision is currently only available in Hebrew on the Court's website [here]. I will post the English translation when it becomes available; however, the main reasoning and implications of the case discussed below should be suggestive of its importance.

The panel of nine justices, presided over by Supreme Court President Dorit Beinisch, ruled in an 8-1 decision that a transfer of authority for managing the prison from the state to a private contractor whose aim is monetary profit would severely violate the prisoners' basic human rights to dignity and freedom. (See Tomer Zarchin, International legal precedent: No private prisons in Israel, HAARETZ)

In 2004, the Knesset passed Amendment 28 to the Prisons Ordinance, which permitted the establishment of private prisons in Israel. The state's motivation was to save money by transferring prisoners to facilities managed by a private firm, to be chosen by tender. The state would pay the franchisee $50 per day for each inmate, but would be spared the cost of building new prisons and expanding the Israel Prison Service's staff.

In 2005, the human rights department of the Academic College of Law in Ramat Gan filed a petition to the High Court challenging the amendment. The petition relied on two arguments. First, it said, transferring prison powers to private hands would violate the prisoners' fundamental human rights to liberty and dignity. And second, a private organization always aims to maximize profit, and would therefore seek to cut costs by, for instance, skimping on prison facilities and paying its guards poorly, thus further undermining the prisoners' rights.

President Beinisch held that, while the amendment was passed in part due to a desire to improve prison conditions, the main purpose of the change was economic - namely, to save the state money. Normally, the ruling noted, the court does not intervene in economic policies decided upon by the cabinet and Knesset. But in this case, Beinisch wrote, the legislation harms basic constitutional rights. Thus the amendment's economic aspect is not the decisive factor that the court must weigh in exercising its power of judicial review.

Israel's basic legal principles, she continued, hold that the right to use force in general, and the right to enforce criminal law by putting people behind bars in particular, is one of the most fundamental and one of the most invasive powers in the state's jurisdiction. Thus when the power to incarcerate is transferred to a private corporation whose purpose is making money, the act of depriving a person of his liberty loses much of its legitimacy. Because of this loss of legitimacy, the violation of the prisoner's right to liberty goes beyond the violation entailed in the incarceration itself.

Beinisch also argued that in a prison run by a private company, prisoners' rights are undermined by the fact that the inmates are transformed into a means of extracting profit. Efficiency, she wrote, is not a supreme value when the most basic and important human rights for which the state is responsible are at stake.

The implications of the case

Following the decision, the state is expected to have to pay hundreds of millions of shekels in compensation to a company that had already completed construction of the first private prison, near Be'er Sheva.

Attorney Gilad Barnea, who represented the college, told The Jerusalem Post that "the ruling is very important because it establishes clear boundaries regarding what is permissible and what is not when it comes to transferring functions from the state to private hands. It is also important because the court determined that the social covenant is an important element in human liberty and that the court may overrule legislation that diminishes it."

Barnea added that the ruling set a world-wide precedent. So far, there had been only one other court challenge to the legality of a private prison - in Costa Rica - and the court rejected it. He said he was certain that other countries would study the High Court ruling carefully and that, at least in this sense, "we will be a light unto the nations."

He also said the ruling would have an immediate effect on three other cases involving the state's intention to privatize. One of the cases involves the hiring of private instructors at the police training center. A second involves the hiring of private instructors for the huge army base near Ramat Hovav in the Negev. The third is the government's intention to privatize the Bailiff's Office and the center for collecting fines.

Another article in Haaretz describes the Israeli Supreme Court's decision as dropping a bombshell. According to the article, the bombshell dropped is hidden in one of the ruling's final pages. "Supreme Court President Dorit Beinisch wrote that so far, no American, British or New Zealand court has had to rule on whether privatizing prisons is unconstitutional. But many experts, she noted, have argued that if this question did arise in Europe, it would be rejected out of hand as contrary to the European Convention on Human Rights.

Thus four years after the petition was filed and about a year after the concessionaire finished building the first private prison - where 2,000 prisoners were slated to be sent - Israel's High Court has effected a revolution: It ruled in firm, unequivocal language that the problem is not the nature of the prison or the concessionaire. Rather, it said, the very principle of privatizing prisons is unconstitutional.

The High Court stressed that it was not intervening in the relations between the state and the concessionaire, who hastened to demand massive compensation. Instead, it addressed other aspects of the issue.

This ruling will not only be studied in Israel, it will also doubtless generate a conceptual revolution worldwide. And Beinisch was clearly aware of this. The ruling rests on the political and moral thought of the great philosophers who discussed the modern state and its administration, as well as on the sharp, clear statements Prof. Aharon Barak used in establishing the basis for his constitutional legislation.

The "social welfare" lobby will probably laud the court as moral and humane, and perhaps even socialist. That would be a mistake. Beinisch cites Thomas Hobbes and John Locke, and accompanies every one of her arguments with citations from Barak, who stressed that human rights must not be left in the hands of any legislator."

----------------

Last Thursday's judgment comes at the end of a long discussion in Israel about the proper limits on transferring of authority from the state to the private sector that found both supporters and opponents (see, e.g., this Roundtable Forum held at the Israel Democracy Institute) and skepticism in the academic literature (see Uri Timor, Privatization of Prisons In Israel: Gains And Risks, 39 Israel Law Review 81 (2006)); it will probably spur a new round of debates not just in Israel but in other jurisdictions facing the same question.

According to another news item, "prison privatization first came up for discussion [in Israel] in the 90's, when prisons were so overcrowded and badly maintained that they seemed unfit for habitation. The following years saw no improvement. In 2005, the Israel Prison Service (IPS) reported that because of overcrowding, conditions were among the worst in developed countries, with up to eight prisoners in a cell and with many having to sleep on the floor. As of March 2008, there were 22,788 inmates, including 9,068 security prisoners. The average space allotted to a prisoner has dropped in recent years from 3.4 square meters to 2.9. By comparison, the figure in Europe is 4.5 square meters. ... According to the Ministry of Public Security (MOPS), Israel [would be] following the "British model," where the "entrepreneur constructs and operates all systems, including bearing responsibility for the fulfillment of prisoners' rights." The state [would retain] supervision and control by "placing in every privately-run facility a comptroller or team of comptrollers who alone exercise the authority to judge and punish prisoners." (The "US model" goes further, giving private companies the power to judge and punish, while the "French model" is more cautious, keeping security and prison management in state hands.) MOPS [said] that the state [would] retain sole responsibility for classifying and allocating prisoners to the private facility, plus punishment and sentencing."

In the United States, the issue was brought to the fore again when Arizona initiated an effort to put its entire prison system under private control (Jennifer Steinhauer, Arizona May Put State Prisons in Private Hands, The New York Times, October 24, 2009). "[I]n a first in the criminal justice world, the state's death row inmates could become the responsibility of a private company." According to the same article, "[t]he privatization move has raised questions - including among some people who work for private prison companies - about the private sector's ability to handle the state's most hardened criminals. While executions would still be performed by the state, officials said, the Department of Corrections would relinquish all other day-to-day operations to the private operator and pay a per-diem fee for each prisoner."

The privatization of state prisons in the U.S. is part of an effort to balance budgets in view of dwindling state resources. The Israeli Supreme Court took a different path when it reviewed the privatization amendment whose rationale was likewise cutting costs. As President Beinisch wrote, while the High Court usually does not interfere in economic policies formulated by the government and Knesset, it takes a different approach in respect to legislation that undermines the most fundamental constitutional rights.

Thanksgiving Holiday Hours

ylslibrary — Thu, 19 Nov 2009 17:07:00 GMT

November 25, Wed, 8:30 a.m. - 10:00 p.m., reduced staff
November 26, Thur, Closed (Thanksgiving)
November 27, Fri, 8:30 a.m. - 5:00 p.m., reduced staff
November 28, Sat, Regular Hours 10:00 a.m. - 10:00 p.m.
November 29, Sun, Regular Hours 10:00 a.m. - 12:00 Midnight

To view the entire calendar, please go to: http://www.library.yale.edu/hours/law.html

TONIGHT! Movie Night @ YLS - Brides

Teresa Miguel — Thu, 19 Nov 2009 16:34:00 GMT

Directed by Pantelis Voulgaris, the award-winning and beautifully filmed Brides is set in 1922 aboard the SS King Alexander. Niki is a mail order bride from Greece bound for her new husband in Chicago. Norman is an American photographer on his way home to a failed marriage. Niki and Norman befriend one another and share more than a transatlantic journey, changing their lives forever.

Co-sponsored by the Lillian Goldman Law Library & the YLS Graduate Programs

Thanksgiving Holiday Library Hours

ylslibrary — Wed, 18 Nov 2009 18:32:00 GMT

To view the entire calendar, please go to: http://www.library.yale.edu/hours/law.html

Rebellious Track #1: The Clash - The Guns of Brixton

seth — Wed, 18 Nov 2009 06:58:00 GMT

Foreshadowing the Brixton race riots of the 1980s, The Guns of Brixton (1979) reflected growing local discontent due to ongoing oppression by police.

When they kick down your front door, how you gonna come?

RebLawg 2010 alive and kicking!

seth — Tue, 17 Nov 2009 22:48:00 GMT

Hi everybody!

Welcome to the Reblawg, the 2010 Rebellious Lawyering Conference's official blog. We are going to start posting regularly about all things RebLaw, and I hope you keep checking back to see what we're up to as the conference approaches!

As the weather gets colder, winter begins creeping up on the calendar, fireplaces turn on, turkeys are roasted and sleigh bells start ringing, we are all reminded of one thing: turning the legal world on its head through rebellious advocacy and activism! RebLaw 2010 is beginning to draw near, and, in preparation, our loyal team of seven directors (with a lot of help, obviously) has been putting together an amazing program. This year's conference is going to be better than ever, and we already have a diverse array of panels and workshops being finalized that are going to be incredible, featuring speakers from all over the U.S. and overseas. First things first: we have three (3) keynote speakers this year lined up and ready to go. On Friday, our speech will be delivered by public interest lawyer extraordinaire Bryan Stevenson, known for making his audience, and prosecutors, burst into tears, albeit for different reasons. On Saturday, we will have reknowned scholars, and two of America's premier critical race thinkers, Lani Guinier and Gerald Torres speaking together, which should be bad ass indeed. I recommend everyone check out their biographies on the RebLaw main page, or just google their names, to get stoked for the conference.

Registration will be available online in a number of days, and we highly encourage everybody to check as often as possible to see when panels and workshops have been put up, and to register as soon as you have a chance. We will be adding them to the site as they are finalized, which should be very soon. Our panel topics include juvenile justice in the USA and South Africa, mass incarceration and its effects on communities, clinical legal education in the Middle East, the challenges faced by LGBTQ prisoners, the future of ATCA litigation, state terrorism in Sri Lanka, the destructive effects of mountaintop removal, and more! Reblaw will also feature an array of how-to workshop sessions, career-building lunch talks, and a documentary film showing. I am also pleased to announce that RebLaw is growing its base, and this year will feature the first panel organized, planned and funded without any participation by Yale law students. To that effect I'd like to give a shout out to Gabe Armas and his sweet coalition of student groups at NYU, who are developing what should be a fantastic panel dealing with abuses of detainees at border detention facilities.

In addition to all this content, we will also be featuring, as always, free housing with local rebels, good food, and a chance to both network and party with your fellow progressives. We will be updating this blog on the reg to keep everyone up to date with the latest happenings, so keep checking back to find out what's going on, when registration starts, what our t-shirts are going to look like (slick new design coming soon!). We also will be bringing you informative submissions from Reblaw panelists to get you prepped for the panels.

We know travel can be expensive too, so we're going to find ways to connect you with fellow rebels to share the costs of travelling so that attending the conference can be cheap and easy (and have a smaller carbon footprint). A good place to start would be joining the Reblaw facebook group: just go on facebook and search for "Reblaw", it should be the first thing that comes up.

So get excited, keep checking back, and always remember to fight the power.

Peace,

Seth

New Law Library Acquisitions for October 2009

ylslibrary — Mon, 16 Nov 2009 15:57:00 GMT

The Law Library's list of new acquisitions for October 2009 are now available:

Or, as always, you can visit the library's new acquisitions web page: http://www.law.yale.edu/library/acquisitions.asp.

Now or Later

asha — Fri, 13 Nov 2009 15:59:00 GMT

Dear Asha,

I am a senior in college and am planning to work or teach for a year or two after graduation. If I know I will be taking time off, is it better for me to apply now and defer, or wait until I'm ready to go to law school? If the former, how easy is it to get a deferral from YLS?

Thanks,

A.S.

Dear A.S.,

Your question is a good one, and the answer really depends on how clear your reasons are for attending law school. There are advantages and disadvantages to each option, but there is a middle ground that might be helpful.

Basically, the advantage to applying while you are still in school is that you're probably in a better position to put together your application. Obviously, you need to take the LSAT, if you haven't already, and most people probably find it easier to prepare and take the exam while they are still in school, both because they have more time to devote to it and because they are already in an academic mindset. I do see often that people who wait to take the LSAT until after they graduate find that the demands of their job don't give them enough time to study, and many students who end up working abroad encounter a lot of logistical difficulties in taking the test.

In addition, it's easier to get recommendations from professors who know you well while you are still in school. Most of the professors from whom you are likely to solicit recommendations have had you as a student within the past year or two, and so your performance in their classes are still fresh in their minds. Again, I often find that students who wait until they are out of school for a few years sometimes have difficulty getting detailed recommendations from professors, or will submit employer recommendations instead, which, in our faculty-driven admissions process, could hurt them.

Finally, applying while you are still in school and deferring just gives you peace of mind, since you have already "locked in" your plans following whatever it is that you plan to do for one or two years. It can make for a much more relaxed time period, and you can focus more clearly on whatever path you've chosen to take in that time.

On the other hand, students who wait to apply until they've had some real-world experience tend to have richer personal statements and are better able to clearly articulate their reasons for applying to law school. Often, the experiences they have had working or teaching clarify a lot of things they are passionate about and interested in, and they just have more reference points -- beyond just coursework, extracurricular activities, or summer internships -- to draw upon. In other words, students who have been out of school have the opportunity to offer a slightly more mature and nuanced perspective on how the path they have taken thus far corresponds to their future path in law school and beyond (though that will, of course, depend on the self-awareness and writing ability of the individual applicant).

One possible middle ground you can take is to go ahead and take the LSAT while you are still in school, and to also get your recommenders to write letters for you while you are still fresh in their minds. Your LSAT score will be valid for five years, and if you open an account with LSAC you can also put your recommendations on file for up to five years as well (many schools also provide a service through their career development offices that will hold recommendations on your behalf). You can then pursue whatever job you would like to take and, in the fall/spring before you're ready to matriculate, you can put together your essays and submit your application. This sacrifices the "peace of mind" point I made above, since you will have to devote some time and endure some stress during your time off applying to law school and waiting for decisions, but this path can combine the best of both worlds.

If you do decide to apply while you are still in school and defer -- and many people do this -- you should note that we have a "tiered" approach to granting deferrals. Generally speaking, we are very generous in granting one-year deferrals, provided that they are requested by our deposit deadline. You do need to make a formal request, and outline why the experience you're considering will enhance both your personal development and your legal education, but unless you're planning on living in your parents' basement for a year playing Guitar Hero, you should be able to meet this threshold. Once our deposit deadline has passed, however, we do expect a little more structure and focus in deferral requests, since at that point we have more or less finalized our class and would need to fill your spot with someone else from our wait list. So we would at that point only grant one-year deferrals on a case-specific basis.

For two year deferrals, the bar is a little higher. We generally expect requests for two-year deferrals to involve a commitment that in some way requires two years to complete. Examples of this are scholarships like the Rhodes or Marshall, Teach for America fellowships, or the Peace Corps. Other types of programs and commitments will be considered but we will want to know why you need two years, rather than one. I

I should note that if you are already working at the time you apply and are admitted, the need to stay in your current job for one or two years isn't looked on too favorably. In other words, we expect that if you have already been out of school doing something and have applied to law school, it's because you're ready to go to law school. If you think that you need more time to complete projects in your current job, get a promotion, etc., then please wait to apply until you're ready to matriculate.

We do not grant three-year deferrals except in extreme cases. In fact, the only time I have granted a three-year deferral off the bat is for military service. In rare instances I have granted an extension of a two-year deferral for personal or medical reasons, family hardship, or for academically compelling reasons, like you are just about to finish a dissertation. And, regardless of the reasons, we do not under any circumstances grant deferrals or extensions beyond three years: at that point, a student's only option is to withfraw from Yale and to reapply, and readmission is not guaranteed.

I hope this answers your question, and that you'll enjoy your time off, regardless of when you apply!

--Asha

Please email questions to 203blog@yale.edu

Yale Journal of International Law (YJIL) announces new website

Jason Eiseman — Tue, 10 Nov 2009 13:41:00 GMT

The Yale Journal of International Law (YJIL) announces the launch of its new website, www.yjil.org, featuring unique online content for the first time in its thirty-five year history. YJIL Online provides authors a forum for short analytical essays relevant to both scholarship and practice. The first issue includes a co-authored essay by State Department Legal Adviser Harold Hongju Koh, and a short article by Yale Professor W. Michael Reisman and Brad Tennis. The third feature essay, by practitioners Eddan Katz and Gwen Hinze of the Electronic Frontier Foundation, analyzes the potential impact of the Anti-Counterfeiting Trade Agreement under consideration by the U.S.

Trade Representative. The new website also highlights information about the 35th Anniversary YJIL Conference (Government Lawyering and International Law) and how to subscribe to the Journal.

Westlaw OnePass Security Change

ylslibrary — Mon, 09 Nov 2009 14:16:00 GMT

Westlaw has rolled out its OnePass password security change since November 1st. It is a new sign on process where Westlaw users are to create their unique usernames and passwords. OnePass security change will be implemented in phases and users can convert to the new system over time. Here are resources to assist you with customizing your OnePass username and password:

Introduction to OnePass

OnePass Step-by-Step Demo

OnePass FAQs

Quick Reference Guide: Registering Your Westlaw Password

Accessing West Products with OnePass

A visit from Yale's Directed Studies students

Mike Widener — Thu, 05 Nov 2009 16:24:00 GMT

I was pleased to welcome about 30 freshmen from Yale's Directed Studies program to the Paskus-Danziger Rare Book Room on November 4. They were accompanied by three of the Directed Studies faculty: Edwin Duval (French), Paul Freedman (History), and Justin Zaremby (Yale College and Law '10).

Directed Studies provides an interdisciplinary study of Western civilization to 125 selected Yale freshmen via three year-long courses -- literature, philosophy, and historical & political thought -- that focus on the central texts of Western civilization.

We viewed several books and manuscripts from among the foundational texts of European and English law, and how these texts shaped and were shaped by legal education. From Europe there was a 13th-century compilation of the Institutes, Code, and Novels of Justinian, and a 14th-century manuscript of the Clementines from the Corpus Juris Canonici, which show the development of the gloss as an outgrowth of the law lectures at the university in Bologna. The Institutes themselves had been promulgated by the Roman emperor Justinian in the 6th century as a textbook for learning Roman law. Likewise for canon law, the Decretum of Gratian was not merely a compilation of papal legislation, but a tool for teaching canon law at Bologna. Early printed editions of Justinian's Institutes (1516) and the Liber Sextus (1514) show how the structure of text-and-gloss shaped the layout of early printed law books. Legal humanists later stripped away the medieval gloss, but an 18th-century scholar replaced the gloss with his own study notes in an interleaved copy of the Institutes.

University-trained jurists in Europe had to plow through every line of Justinian's texts or the Corpus Juris Canonici to earn their doctorates in law. In England, by contrast, lawyers did not study English common law in universities but at the Inns of Court, and they did not study foundation texts as the Europeans did. On view for the students was one of our two 13th-century manuscripts of Bracton, the text that tried to do for English law what Justinian's Institutes did for Roman law, but failed. Education in the common law was practice-based; students attended hearings in the royal courts and studied cases from the Year Books, the anonymous medieval case reports that focused on procedure rather than outcomes. The first text written for English law students was Littleton's Tenures, a little treatise on land law that ws reprinted over seventy times across four centuries. Sir Edward Coke's commentary on Littleton once again adapted the device of the gloss, with Coke's dense and learned notes almost swallowing up Littleton's original text. The copy of Coke on Littleton (1633) that the students viewed has additional layers of extensive manuscript notes, attributed to the English author Samuel Butler (1612-1680), author of a best-selling satire on the Puritans, Hudibras, and Butler's patron William de Longueville (1639-1721).

The book that revolutionized common-law legal education, especially for do-it-yourself'ers in the early United States, was Sir William Blackstone's Commentaries on the Laws of England, the first book to give a comprehensive overview of English law in prose that an educated layman could digest. On view for the students was the 1790 edition of the Commentaries printed in Worcester, Mass., by the pioneering American printer Isaiah Thomas, as well as a student notebook (New England?, 1810?), where the student's geography notes are followed by "Questions and Answers upon Law: Blackstone's Commentaries."

My thanks to Justin Zaremby for organizing this visit. The students enjoyed the chance to see the books up close and actually handle them. Let's do it again!

MIKE WIDENER
Rare Book Librarian

[Cases] ECHR Chamber Judgment of October 29, 2009, in the case of Chaudet v. France (right to a fair hearing)

akis.psygkas — Mon, 02 Nov 2009 04:35:00 GMT

Principal facts

The applicant, Patricia Chaudet, is a French national who worked as an air hostess from 1982. Between 1997 and 2001 she suffered five work-related accidents as a result of air turbulence. She was awarded a disability pension in June 2002 (for a degree of disablement of 8%), then given disabled-worker status in April 2003. On 30 April 2003 the civil aviation medical council declared her unfit for the duties of an air hostess (without giving reasons for its decision); then, on 12 May 2004, declared her permanently unfit for such duties. On 25 October 2004 the civil aviation medical board declared that this permanent incapacity was not attributable to the airline, thus depriving the applicant of the right to receive compensation in that respect. After an unsuccessful application for review, Ms. Chaudet challenged that decision before the Conseil d'Etat, considering, in particular, that insufficient reasons had been given for it. The Conseil d'Etat dismissed the appeal; it held, in particular, that sufficient reasons had been given for the disputed decision, in view of the legal requirement to respect medical confidentiality.

The civil aviation medical board is a collegial body governed by the Code of Civil Aviation. It forms part of the Ministry of Transport and is made up of doctors who are appointed by the Minister. It studies and coordinates physiological, medical, medico-social and health issues of interest to civil aviation, particularly with regard to flight personnel and passengers. It rules, among other things, on the permanent nature of airline employees' medical incapacity and takes decisions on the attribution of accidents at work.

Complaint before the ECHR

Ms. Chaudet relied essentially on Article 6 § 1 of the Convention (right to a fair hearing). She complained of the unfair nature of the proceedings before the civil aviation medical board, on account of the inadequacy of the reasons given for its decision, and about the fact that it had been impossible for her to have access to the case file on which the decision had been based. She also complained about the presence of the Government Commissioner at the deliberations of the bench of the Conseil d'Etat which ruled on her case.

Decision of the ECHR

On the fairness of the proceedings before the civil aviation medical board

Ms. Chaudet was entitled to have her claims examined by a tribunal which met the requirements of Article 6§1, since they were genuinely aimed at obtaining payment of compensation provided for by law.

The Court did not consider it necessary to examine whether the civil aviation medical board met the requirements of Article 6§1. In contrast, it was obliged to ensure that the Conseil d'Etat satisfied the applicant's right to a court and to determination of the dispute by a court. In this case, the Conseil d'Etat did not have "full jurisdiction", which would have had the effect of substituting its decision for that of the civil aviation medical board. It had nonetheless addressed all of the submissions made by the applicant, on factual and legal grounds, and assessed all of the evidence in the medical file, having regard to the conclusions of all the medical reports discussed before it by the parties.

The applicant's case had thus been examined in compliance with the requirements of this Article and the Court concluded (unanimously) that there had been no violation of Article 6§1.

On the presence of the Government Commissioner at the Conseil d'Etat's deliberations

Reiterating its case-law (Martinie v. France ([GC], no 58675/00, 12 April 2006)) that the presence of the Government Commissioner at the deliberations of the bench of the Conseil d'Etat, as was the situation at the time of the disputed events, was incompatible with the requirements of a fair hearing, the Court concluded (unanimously) that there had been a violation of Article 6 § 1.

The judgment is available only in French here. You can read the press release, which is available in English, here.

[Reports] Lobbying Transparency in the European Union

akis.psygkas — Mon, 02 Nov 2009 04:08:00 GMT

According to its website, the Commission recognizes that lobbying is a legitimate, even essential part of democratic decision making, whether it is carried out by public affairs consultancies, private companies, NGOs, law firms, think tanks or trade associations. The Commission needs and appreciates the input it gets from such organizations, but in return asks their cooperation in showing the public that the relationship is based on high standards of probity and transparency.

As part of a wider effort to make EU decision-making more transparent, the Commission launched a register in 2008 that is meant to list all interest representatives - a catch-all term for groups seeking to influence policy. The first annual review of the voluntary scheme found that the number of registered organizations and individuals has reached 2,100 and is rising. The report notes that some supporters of efforts to regulate lobbyists want registration to be mandatory. But it says that is not warranted given the high rate of participation so far. Commissioner Siim Kallas says the register has changed the commission's corporate culture. EU officials now think twice about meeting with unregistered interest representatives. And some EU divisions have dropped unregistered organizations from their database or taken similar steps.

But not everyone is happy with the register. Many law firms and think tanks have boycotted it. Lawyers worry it violates their rules on client confidentiality, while think tanks say their activities do not count as lobbying. The Commission hopes to resolve these issues by clarifying the language in the register and creating a separate category for think tanks. It will also revise the rules for financial disclosure to improve transparency.

More information is available here.

Tips for Research and Formatting the First Brief Writing Assignment

ylslibrary — Mon, 26 Oct 2009 14:01:00 GMT

When: October 26th from 4-4:30, repeats on Oct. 28th from 3:00-3:30 and Oct. 30th from 11:00-11:30 am.
Place: Computer Classroom, L2
This program will give 1L students the tools to properly format briefs in Microsoft Word, including how to create a table of contents and a table of authorities. Students will also learn how to find applicable briefs and other court documents to aid in research, as well as how to verify research with a citator.

Scanners at the Law Library

ylslibrary — Sun, 25 Oct 2009 17:17:00 GMT

Scanners at the Law Library – Announcement

There are three options for you to scan documents/pictures here at the Law Library:

Level 1, Foreign & International Area.
You must log in with your Yale Net ID and Password to be able to scan and email documents to yourself (instructions are located next to the machine)
Level 2, Computer Cluster Area
Yale Law School Community use only. You must log in with your Net ID and password in order to use this flat scanner
(instructions are posted next to the machine)
Level 3, Reading Room Area, Carrel # 347
This is a portable scanner that must be checked out from the Circulation Desk with your Yale ID. The scanner’s software is already installed in the computer workstation located in carrel # 347, but if you’d like to upload the software onto your own laptop, please contact Cesar.Zapata@yale.edu
(instructions are posted next to the computer)

Freedom of the Seas: Acknowledgments

Mike Widener — Fri, 23 Oct 2009 16:44:00 GMT

Freedom of the Seas, 1609: Grotius and the Emergence of International Law
An exhibit marking the 400th anniversary of Hugo Grotius's Mare Liberum

ACKNOWLEDGMENTS

Thanks to the following individuals and institutions for their assistance in preparing this exhibit:

David Warrington
Librarian for Special Collections
Harvard Law School Library

Kathryn James
Assistant Curator, Early Modern Books and Manuscripts
Beinecke Rare Book & Manuscript Library, Yale University

Christine McCarthy
Chief Conservator
Yale University Library

Tara Kennedy
Preservation Field Services Librarian
Yale University Library

Shana Jackson
Lillian Goldman Law Library

Benjamin Yousey-Hindes
Stanford University

The portrait of Hugo Grotius is from: Hugo Grotius, Inleydinghe tot de Hollandsche rechtsgheleerdheydt (Haarlem, 1636). Rare Book Collection, Lillian Goldman Law Library.

"Freedom of the Seas, 1609: Grotius and the Emergence of International Law," curated by Edward Gordon and Michael Widener, is on display October 2009 through January 2010 in the Rare Book Exhibition Gallery, Level L2, Lillian Goldman Law Library, Yale Law School.

Freedom of the Seas: Bibliography

Mike Widener — Fri, 23 Oct 2009 16:09:00 GMT

Freedom of the Seas, 1609: Grotius and the Emergence of International Law
An exhibit marking the 400th anniversary of Hugo Grotius's Mare Liberum

The Development of the Law of the Sea in the 17th Century: A Bibliography of Modern Scholarship
Compiled by Edward Gordon

Akashi. Kinji. Cornelius van Bynkershoek: His Role in the History of International Law. The Hague: Kluwer, 1998.

Alexandrowicz, C.H. An Introduction to the History of the Law of Nations in the East Indies. Oxford: Clarendon, 1967.

Alexandrowicz, C.H. "Freitas versus Grotius," 35 British Yearbook of International Law 162 (1959).

Allen, E.W. "Freedom of the Seas," 60 American Journal of International Law 814 (1966).

Alsop, J.D. "William Welwood, Anne of Denmark and the Sovereignty of the Sea," 49 Scottish Historical Review 171 (1980).

Amaral, Sylvino Gurgel do. "Le ‘Mare Liberum' et ses adversaries", in Hugo Grotius: Essays on His Life and Works Selected for the Occasion of the Tercentenary of His ‘De Jure Belli ac Pacis' 1625-1925 (A. Lysen ed.; Leyden: A.W. Sythoff, 1925). [Translated from the Portuguese, where it appeared in the author's Ensaio subre a vide e obras de Hugo de Groot (Grotius) (Rio de Janeiro-Paris, 1903).]

Anand, R.P. Origins and Development of the Law of the Sea: History of International Law Revisited. The Hague: Nijhoff, 1983.

Andrews, Kenneth R. Ships, Money and Politics: Seafaring and Naval Enterprise in the Reign of Charles I. Cambridge: Cambridge University Press, 1991.

Armitage, David. The Ideological Origins of the British Empire. Cambridge: Cambridge University Press, 2000.

Armitage, David, ed. The Free Sea: Hugo Grotius, Translated by Richard Hakluyt; with William Welwood's Critique and Grotius's Reply. Indianapolis: Liberty Fund, 2004.

Blom, Hans W., ed. Property, Piracy and Punishment: Hugo Grotius on War and Booty in De Jure Praedae – Concepts and Contexts. Leiden: Brill, 2009.

Borschberg, Peter. "Grotius, Intra-Asian Trade and the Portuguese Estado da India Problems," in Property, Piracy and Punishment: Hugo Grotius on War and Booty in De Jure Praedae – Concepts and Contexts ( Hans W. Blom, ed.; Leiden: Brill, 2009).

Borschberg, Peter. "The Seizure of the Sta. Catarina Revisited: The Portuguese Empire in Asia, VOC Politics and the Origins of the Dutch-Johor Alliance (1602-ca. 1616)," 33 Journal of Southeast Asian Studies 31 (2002).

Braudel, Fernand. The Mediterranean and the Mediterranean World in the Age of Philip II. New York: Harper & Row, 1972.

Brett, Annabel. Liberty, Right and Nature: Individual Rights in Latin Scholastic Thought. Cambridge: University Press, 1997. [See pp. 165-204, on Vásquez.]

Brito Vieira, Monica. "Mare liberum vs. Mare clausum: Grotius, Freitas, and Selden's Debate on Dominion over the Seas," 64 Journal of the History of Ideas 361 (2003).

Butler, Geoffrey; & Simon Maccoby. The Development of International Law. London: Longmans, Green 1928. [See esp. pp. 40-60, "The World by Sea".]

Butler, W.E. "Grotius and the Law of the Sea," in Hugo Grotius and International Relations (H. Bull, A. Roberts & B. Kingsbury, eds.; Oxford: Oxford University Press, 1990).

Chatterjee, Hiralal. International Law and Inter-State Relations in Ancient India. Calcutta: Mukhopadhyay, 1958.

Christianson, Paul. Discourse on History, Law, and Governance in the Public Career of John Selden, 1610-1635. Toronto: Toronto University Press, 1996.

Clark, G. N. "Grotius's East India Mission to England," 20 Transactions of the Grotius Society 45 (1935).

Clark, G. N., & van Eysinga, W. J. M. "The Colonial Conferences between England and the Netherlands in 1613 and 1615," 15 Bibliotheca Visseriana 15 (1940).

De Pauw, F. E. R., ed. Grotius and the Law of the Sea (P.J. Arthern, transl.). Brussels: Institut de Sociologie, 1965.

Diesselhorst, Malte. "Hugo Grotius and the Freedom of the Seas," 3 Grotiana (N.S.) 11 (1982).

Dumbauld, E. "Grotius on the Law of Prize," 14 Journal of Public Law 370 (1965).

Edmundson, George. Anglo-Dutch Rivalry during the First Half of the Seventeenth Century. Oxford: Clarendon Press, 1911.

Eysinga, William J. M. van. "Quelques Observations au Sujet du Mare Liberum et du De Jure Praedae de Grotius," 9 Grotiana 60 (1942).

Eysinga, William .M. van. "Le 350ieme anniversaire du ‘De jure Praedae commentarius' de Grotius" [French translation of address of the Royal Dutch Academy of Sciences and Letters, March 24, 1956], in Sparso Collect (Leyden 1958), pp. 358-374.

Fenn, Percy Thomas, Jr. The Origin of the Right of Fishery in Territorial Waters. Cambridge, MA: Harvard University Press, 1926. [See esp. ch. VIII, "Mare liberum versus Mare clausum."]

Fenn, Percy Thomas, Jr. "Origins of the Theory of Territorial Waters," 20 American Journal of International Law 465 (1926).

Fenn, Percy Thomas, Jr. "Justinian and the Freedom of the Seas," 19 American Journal of International Law 465 (1925).

Fruin, Robert. "An Unpublished Work of Hugo Grotius," 5 Bibliotheca Visseriana 3 (1925). [English translation of a work first published, in Dutch, in 1868.]

Fulton, Thomas Wemyss. The Sovereignty of the Seas: An Historical Account of the Claims of England to the Dominion of the British Seas, and of the Evolution of the Territorial Waters: With Special Reference to the Rights of Fishing and the Naval Salute. Edinburgh: William Blackwood, 1911.

Gepken-Jager, Ella; Gerard van Solinge, & Levinus Timmerman. VOC 1602-2002: 400 Years of Company Law. Deventer: Kluwer, 2005

Goldwin, R.A. "Locke and the Law of the Sea," 71 Commentary 46 (June 1981).

[Grotius, Hugo]. De jure praedae commentaries. I. Commentary on the Law of Prize and Booty. Gwladys L. Williams and Walter H. Zeydel, transl.. II. The Collotype Reproduction of the Original Manuscript on 1604 in the Handwriting of Grotius. 2 vols. Oxford: Clarendon, 1950.

Grotius, Hugo. "Defense of Chapter V of the Mare Liberum," in 7 Bibliotheca Visseriana 154 (1928). [Originally written between 1613 and 1617.]

Haggenmacher, Peter. "Grotius and Gentili: A Reassessment of Thomas E. Holland's Inaugural Lecture," in Hugo Grotius and International Relations (H. Bull, A. Roberts & B. Kingsbury, eds.; Oxford: Oxford University Press, 1990).

Hakluyt, Richard. The Original Writings and Correspondence of the Two Richard Hakluyts. 2 vols. E.G.R.Taylor, ed. London: Hakluyt Society, 1935.

Holk, L.E. van, & C.G. Roeflofsen, eds. Grotius Reader: A Reader for Students of International Law and Legal History. The Hague: T.M.C. Asser Instituut, 1983.

Ito, F. "The Thoughts of Hugo Grotius in the Mare Liberum," 18 Japanese Annual of International Law 1 (1974).

Ittersum, Martine van. Profit and Principle: Hugo Grotius, Natural Rights Theories and the Rise of Dutch Power in the East Indies (1595-1615). Boston: Brill, 2006.

Ittersum, Martine van, ed. Commentary on the Law of Prize and Booty: Hugo Grotius. Indianapolis: Liberty Fund, 2006.

Ittersum, Martine van. "Dating the Manuscript of De Jure Praedae (1604-1608): What Watermarks, Foliation and Quire Divisions Can Tell Us About Hugo Grotius' Development as a Natural Rights and Natural Law Theorist," 35 History of European Ideas 125 (2009).

Ittersum, Martine van. "Mare Liberum in the West Indies? Hugo Grotius and the Case of the Swimming Lion, a Dutch Pirate in the Caribbean at the Turn of the Seventeenth Century," 31:3 Itinerario 59 (2007).

Ittersum, Martine van. "Mare Liberum versus the Propriety of the Seas? The Debate between Hugo Grotius and William Welwood and the Impact on Anglo-Scottish-Dutch Fishing Disputes in the Second Decade of the Seventeenth Century," 10 Edinburgh Law Review 239 (2006).

Kenworthy, J.M., & George Yound. Freedom of the Seas. London: n.d.

Knight, William S.M. "Seraphin de Freitas: Critic of Mare liberum," 11 Transactions of the Grotius Society 1 (1926).

Kwiatkowska, B. "Hugo Grotius and the Freedom of the Seas," in Hugo Grotius: 1583-1983: Maastricht Hugo Grotius Colloquium March 31, 1983 (J.L.M. Elders et al., eds.; Van Gorcum: Assen, 1984).

Landwehr, John. VOC: A Bibliography of Publications Relating to the Dutch East India Company 1602-1800. Utrecht: HGS Publishers, 1991.

Lauterpacht, Hersch. "The Grotian Tradition in International Law," 23 British Yearbook of International Law 1 (1946).

Macrae, L.M. "Customary International Law and the United Nations' Law of the Sea Treaty," 13 California Western International Law Journal 181 (1983).

Meurer, Christian. The Program of the Freedom of the Seas: A Political Study in International Law. Leo J. Frechtenberg, transl. Washington: GPO, 1919.

Molen, G.H.J. van der. Alberico Gentili and the Development of International Law: His Work and Times. Amsterdam: H.J. Paris, 1937. [Later printing: Leyden 1968. See esp. ch. VI, "Questions of International Law."]

O'Connell, D.P. The International Law of the Sea. London: OxfordUniversity Press, 1983.

Oudendijk, J.K. Status and Extent of Adjacent Waters: A Historical Orientation. Leyden: Sijthoff, 1970.

Pagden, Anthony. Lords of All the World: Ideologues of Empire in Spain, Britain and France c.1500-1800. New Haven: Yale University Press, 1995. [See esp. pp. 56-61 on Vasquez.]

Parks, George Bruner. Richard Hakluyt and the English Voyages. New York: American Geographical Society, 1928.

Piggott, Frances. The Freedom of the Seas Historically Treated. Oxford: printed for the Historical Section of the Foreign Office, 1919.

Porras, Ileana M. "Constructing International Law in the East Indian Seas: Property, Sovereignty, Commerce and War in Hugo Grotius' de Iure Praedae - The Law of Prize and Booty, or on How to Distinguish Merchants from Pirates," 31 Brooklyn Journal of International Law 741 (2005-2006).

Potter, Pitman B. The Freedom of the Seas in History, Law, and Politics. New York: Longmans, Green, 1924. [Reprint 2002. See esp. ch. IV, "The Grotius-Selden Controversy."]

Quinn, D.B. "A Hakluyt Chronology," in The Hakluyt Handbook (D.B. Quinn, ed.; 2 vols.; London: Hakluyt Society, 1974).

Rawlinson, H.G. Intercourse between India and the Western World: From the Earliest Times to the Fall of Rome. Cambridge: University Press, 1926.

Roelofsen, C.G. "The Sources of Mare Liberum; the Contested Origins of the Doctrine of the Freedom of the Seas," in International Law and its Sources: Liber Amicorum Maarten Bos (W.P. Heere, ed.; Boston: Kluwer, 1988). [Reprinted in C.G. Roelofsen, Studies in the History of International Law: Practice and Doctrine in Particular with Regard to the Law of Naval Warfare in the Low Countries from circa 1450 Until the Early 17th Century (Utrecht: Rijksuniversiteit te Utrecht, 1991).]

Roelofsen, C.G. "Grotius and the International Politics of the Seventeenth Century," in Hugo Grotius and International Relations (H. Bull, A. Roberts & B. Kingsbury, eds.; Oxford: Oxford University Press, 1990). [Reprinted in C.G. Roelofsen, Studies in the History of International Law: Practice and Doctrine in Particular with Regard to the Law of Naval Warfare in the Low Countries from circa 1450 Until the Early 17th Century (Utrecht: Rijksuniversiteit te Utrecht, 1991).]

Roelofsen, C.G. "Grotius and State Practice of His Day," 10 Grotiana 3-46 (1989). [Reprinted in C.G. Roelofsen, Studies in the History of International Law: Practice and Doctrine in Particular with Regard to the Law of Naval Warfare in the Low Countries from circa 1450 Until the Early 17th Century (Utrecht: Rijksuniversiteit te Utrecht, 1991).]

Roelofsen, C.G. Review of Anand, Origins and Development of the Law of the Sea, 31 Netherlands International Law Review 117 (1984).

Rogers, F.M. "Hakluyt as Translator," in The Hakluyt Handbook (D.B. Quinn, ed.; 2 vols.; London: Hakluyt Society, 1974).

Steinburg, Philip G. The Social Construction of the Oceans. Cambridge: University Press, 2001. [See esp. pp. 92 et seq.]

Toomer, G. J. John Selden: A Life in Scholarship. 2 vols. Oxford: Oxford University Press, 2009. [See vol. 1, ch. 12, "Mare Clausum."]

Trevor-Roper, H. From Counter-Reformation to Glorious Revolution. Chicago: University of Chicago Press, 1982.

Vollenhoven, C. The Three Stages in the Evolution of the Law of Nations. The Hague: Nijhoff, 1919.

Vreeland, Hamilton. Hugo Grotius: The Father of the Modern Science of International Law. New York: Oxford University Press, 1917. [See esp. pp. 39-67.]

Wade, Thomas C. "Introductory Essay: The Freedom of the Sea," in Sir John Boroughs, The Sovereignty of the British Seas (Edinburgh: W. Green & Sons, 1920).

Wilkinson, John. "The First Declaration of the Freedom of the Seas: The Rhodian Sea Laws," appendix to Ch. XIX of the same author's paper, "A Tentative Program for Simulation of Historical ‘Ecology' of the Mediterranean," in The Mediterranean Marine Environment and Development of Region (Malta: Royal University of Malta Press, 1974).

Wilson, Eric. Savage Republic: De Indis of Hugo Grotius, Republicanism and Dutch Hegemony with the Early Modern World Systems (c.1600-1619). Leiden: Martinus Nijhoff, 2008.

Winstedt, Richard; & P.F. De Josselin De Jong, "Maritime Law of Malacca," 29 (Pt. 3) Journal of the Royal Asiatic Society (Aug. 1956).

Wright, Herbert F. "Some Lesser Known Works of Hugo Grotius," 7 Bibliotheca Visseriana 132 (1928). [Four works are reproduced, of which two are translations: one of Grotius's works on fisheries in his controversy with William Welwood, another a translation of extracts from Grotius's letters concerning international and natural law and fisheries. See esp. "Defense of Chapter V of the Mare Liberum."]

Zemanek, Karl. "Was Hugo Grotius Really in Favour of the Freedom of the Seas?", 1 Journal of the History of International Law 48 (1999).

Ziskind, Jonathan. "International Law and Ancient Sources: Grotius and Selden," 35 Review of Politics 537 (No. 4, 1973).

Freedom of the Seas, Part 8

Mike Widener — Fri, 23 Oct 2009 15:58:00 GMT

Freedom of the Seas, 1609: Grotius and the Emergence of International Law
An exhibit marking the 400th anniversary of Hugo Grotius's Mare Liberum
Part 8

For the 17th century Mare liberum and Mare clausum were the centerpieces of the debate between advocates of exclusive and inclusive uses of ocean space. In England, Mare clausum reigned supreme as the authority on all questions of sovereignty at sea, although its authority on more mundane legal issues of maritime law yielded late in that century to Charles Molloy's De jure maritime et navali, or, A Treatise of Affaires Maritime, and of Commerce (1676), which dealt with mercantile questions such as bills of exchange, insurance and maritime loans.

Molloy, Charles (1646-1690). De jure maritimo et navali (London, 1682).
This popular work went through 12 editions between 1676 and 1778.
Rare Book Collection, Lillian Goldman Law Library.

Neither Welwood nor Selden dealt decisively with the question of how far out to sea a sovereign’s territorial sea could extend: Welwood seemed to suggest one hundred miles, but left the issue open; Selden finessed it entirely. In time, British maritime power rendered such matters moot: as an old saw had it, "Britannia rules the waves – and waives the rules."

But by the end of the century, support was growing elsewhere for some limitation to the seaward extent of territorial waters. What emerged was the so-called "cannon shot rule", which deferred in theory to the idea that property rights could be acquired by actual occupation, and in practice to the effective range of shore-based cannon: about three nautical miles. The rule has long been associated with Cornelis van Bijnkershoek (1673-1743), a Dutch jurist who, especially in his De dominio maris (1702), advocated a middle ground between the extremes of Grotius and Selden, accepting both the freedom of states to navigate and exploit the resources the of the high seas and a right of coastal state to assert wide-ranging rights in a thus limited territorial sea.

Bijnkershoek, Cornelis van (1673-1743). De dominio maris (The Hague, 1703).
Special Collections, Harvard Law School Library.

Viewed in historical perspective, what emerged from the 17th-century debate were not just these two legal regimes, but a more inclusive one – international law – to govern humanity's common interest in the use of shared space and shared resources, interest as to which the future may well offer exhibits of its own.

-- Notes by Edward Gordon

Accelerated Integrated JD-MBA

craigj — Fri, 23 Oct 2009 15:54:00 GMT

The Law School and Yale's School of Management (SOM) unveiled a pilot three-year joint degree program last spring for students interested in an integrated law and business curriculum. At the end of the three year Accelerate Integrated JD-MBA program (AI JD-MBA), students earn both a JD and an MBA. Yale is the third university in the country to offer a three-year JD-MBA and the first do so without requiring summer classes. The summer before the first year of the program and subsequent summers during the program are open, so students can pursue internships and other employment opportunities.

"The program will prepare students for the increasingly complex intersection of business and law," said former Dean Harold Koh. "Students will master analytical and quantitative skills that will be of value for a business law-related practice but also more broadly for careers as entrepreneurs and managers in business and non-profit organizations."

The new program supplements our existing four-year JD-MBA program, one of the most popular joint degree programs at YLS. As the name implies, the four-year JD-MBA allows students to complete both degrees in four years with no summer coursework. One of the highlights of this program (and most of our other joint degree programs) is the curricular and scheduling flexibility afforded to participants. Students in the four-year program are mostly free to choose which semesters they spend at which school, as long as total of five terms are spent at YLS and three are spent at SOM. Additionally, the four-year JD-MBA is not limited to SOM. Students have the ability to pursue their MBA at a different university.

In order to compress the rigorous JD-MBA curriculum into three years, participants lose some flexibility when compared to the four-year program. Students must begin the program at YLS, where they spend their first year. In the second year, students spend both semesters at SOM, but take one class in the spring at YLS. The third year is spent at YLS. When compared to the four-year program, students lose ability to take one term's worth of electives at YLS; two when compared to non-joint degree students.

Students pay regular JD tuition in their first year, a special tuition to SOM in their second year, and a special tuition to YLS in their third year. Need-based loans taken during the semesters in which students paid tuition to SOM are eligible for SOM's Loan Forgiveness Support. Need-based loans taken during the semesters in which students paid tuition to the YLS are eligible for COAP.

Applicants interested in the AI JD-MBA must apply to both YLS and SOM. The applications can either be submitted simultaneously or YLS students can apply to the program during their first year of law school. Detailed application instructions for simultaneous applicants and YLS 1Ls can be found on our website.

More information about the three-year AI JD-MBA and four-year JD-MBA programs, as well as our other joint degrees, can be found on our joint degree page. The AI JD-MBA Program has its own site hosted by the Yale Law School Center for the Study of Corporate Law. In addition to an overview of the program and application instructions, you can view videos of professors and alumni talking about the AI JD-MBA and the benefits of pursuing degrees in law and business.

Freedom of the Seas, Part 7

Mike Widener — Thu, 22 Oct 2009 21:07:00 GMT

Freedom of the Seas, 1609: Grotius and the Emergence of International Law
An exhibit marking the 400th anniversary of Hugo Grotius's Mare Liberum
Part 7

In supporting his case with a massive showing of state practice, Selden was able to draw upon historical research done by the Keeper of the Records in the Tower of London, Sir John Borough, whose work, The Sovereignty of the British Seas Proved by Records, History, and the Municipall Lawes of the Kingdome, written in 1633, was published only posthumously in 1651.

Borough, John (d. 1643). The soveraignty of the British seas (London, 1739).
The third edition.
Collection of Edward Gordon.

Grotius, too, was able to draw upon earlier work. Some of his arguments had been anticipated by the writings of Alberico Gentili (1552-1608), an Italian émigré who became Regius Professor of Civil Law at Oxford, and at least as prominently, an admiralty lawyer in London, representing the king of Spain. Gentili died before the publication of Mare liberum, but in his notes in defense of Spanish claims, published posthumously in 1613 as Hispanicae advocationis, he organized the issues far more systematically than the youthful Grotius had been able to do in Mare liberum.

Like Grotius, Gentili said that under Roman law, consistently with natural law, the open sea was common property. But he recognized the gap between principle and practice, bridging it by distinguishing dominium (ownership) from jurisdictio (jurisdiction) – the latter, unlike the former, being applicable to the high seas. He also distinguished coastal waters from the high seas, insisting, however, that a coastal state’s right to control its territorial seas did not justify closing them to foreign navigation.

His ideas anticipated those of De jure belli ac pacis as well. In his use of phrases like ius inter gentes and societas humana, for example, Gentili may be said to have initiated the liberation of the law of nations conceptually from both Roman law and the guardianship of theology. Not until the late 19th century, however, was the extent of influence on Grotius recognized by scholars. Only then did Gentili's reputation as a founder of modern international law begin to rival that of Grotius himself.

-- Notes by Edward Gordon

Gentili, Alberico (1552-1608). Hispanicae advocationis libri duo (Hanover, 1613).
Special Collections, Harvard Law School Library.

Freedom of the Seas, Part 6

Mike Widener — Thu, 22 Oct 2009 20:50:00 GMT

Freedom of the Seas, 1609: Grotius and the Emergence of International Law
An exhibit marking the 400th anniversary of Hugo Grotius's Mare Liberum
Part 6

William Welwood's work eventually drew a response from a Dutch lawyer, Dirck Graswinckel, entitled Mare liberi vindiciae adversus Gulielmum Welwodum (1653), but its relative obscurity today owes more to the publication in 1635 of Mare clausum, by John Selden (1594-1654), an English jurist, scholar and polymath whose erudition rivaled that of Grotius himself. Selden had begun researching and writing a refutation of Mare liberum soon after its publication, even before Welwood's two treatises appeared. He had completed it by around 1618, by which time, however, a coup d'etat had taken place in the Netherlands, Grotius had been imprisoned, and relations between England and the new government were unsettled. King James was reluctant anyway to provoke a dispute with Denmark, which had extensive claims of its own in the North Atlantic. Under the circumstances, the moment seemed inauspicious for a verbal assault on Grotius and the freedom of the seas – and James refused to publish Mare clausum.

Selden apparently abandoned the project for nearly seventeen years. By then, Grotius, having escaped from prison in 1621 and living in exile in France, had published his more mature and celebrated masterpiece, De jure belli ac pacis (1625), later translated into English as The Rights of Warre and Peace (1654), in which he toned down some of the extravagant positions he had taken in his youthful defense of the seizure of the Santa Catarina, constructing instead a more sophisticated basis for a law of nature and nations independent of empire or religious guardianship that was, not coincidentally, notably less lenient in justifying the resort to armed force.

By then, Selden's personal status had changed, too. Having become embroiled in parliamentary politics, he himself had been imprisoned and was now ensconced in the Tower of London. James meanwhile had been succeeded by Charles I, whose maritime policy was more aggressive than that of either of his two predecessors. In returning to his attack on Mare liberum, therefore, Selden was faced not only with the task of exposing weaknesses in Mare liberum, as Welwood had done and as he himself presumably had already done in his 1618 draft, but also with the more demanding one of taking into account the comprehensive legal regime Grotius had subsequently presented in De jure belli ac pacis. And he had to do both in a way that ingratiated himself with Charles.

Selden's treatise, like Grotius's, is remarkable for its erudition, too much so for modern readers, who tend to see in both works an excess of pedantry, but decisively impressive to the two men's own contemporaries. Selden conceded the innocence of harmless navigation and commerce, but maintained that restrictions on them do not necessarily violate the law of nature and the law of nations. He purported to show that the open sea is not everywhere common, is capable of appropriation, and in fact from time to time had been appropriated and occupied. As to the Spanish and Portuguese claims, whose legitimacy England continued to deny, Selden said that, while on general principles they could be valid, in actual practice neither of the two countries ever acquired valid title or command to the areas they claimed.

-- Notes by Edward Gordon

Selden, John (1584-1654). Mare clausum (London, 1635).
The first edition of Selden’s Mare clausum is also famous as the first use of Arabic type in England. The map depicts what ancient geographers called "the British sea."
Rare Book Collection, Lillian Goldman Law Library.

Selden, John (1584-1654). Mare clausum: the right and dominion of the sea (London, 1663).
The second edition of the English translation of Mare clausum.
Rare Book Collection, Lillian Goldman Law Library.

Grotius, Hugo (1583-1645). Of the law of warre and peace (London, 1655).
The second English edition, appearing only a year after the first. The portrait bears Grotius's motto, "Ruit Hora" ("Time flies"), reflecting his busy and productive career as a jurist, diplomat, and author.
Rare Book Collection, Lillian Goldman Law Library.

Freedom of the Seas, Part 5

Mike Widener — Thu, 22 Oct 2009 20:35:00 GMT

Freedom of the Seas, 1609: Grotius and the Emergence of International Law
An exhibit marking the 400th anniversary of Hugo Grotius's Mare Liberum
Part 5

England's own claims to maritime sovereignty ran counter to both Spain and Portugal's and to Holland's. Even during the reign of Queen Elizabeth – and notwithstanding her rebuke to the Spanish ambassador – England claimed sovereign rights seaward. During her reign these rights extended to the waters immediately adjacent to its coast, but her successors extended them out into the Atlantic, from Cape Finisterre in Spain around the British Isles, and in the North Sea to the coast of Norway.

The first British treatise on the law of the sea appeared in 1590. Written by William Welwood (fl. 1566-1624), a professor of mathematics and then law at St. Andrews (Scotland), The Sea Law of Scotland defended royal dominion over the seas out to a distance of eighty miles off the Scottish coast. The work pleased the king of Scotland, James VI, who had objected strongly, though ineffectively, to what he regarded as the intrusion of the Dutch herring fleet into Scots waters, and who happily rewarded Welwood for lending legal support to his cause.

When James succeeded to the crown of England, following Queen Elizabeth's death in 1603, he issued a proclamation claiming all fisheries along the British and Irish coasts, and prohibiting foreign vessels from fishing in these waters without a royal license. To support his position, he asked Welwood to refute Mare liberum directly.

This Welwood did in two treatises: An Abridgement of All the Sea-Lawes (1613) and, in an amplified Latin version inspired in part by James's wife, Queen Anne of Denmark, De dominio maris (1615). Quoting extensively from biblical sources and Roman lawyers, Welwood rejected Grotius's claim that the waters of the world had always been regarded as indivisible; and defended the right of a coastal state to fish and to navigate – and to impose taxes with respect to either – in the waters adjacent to its coasts. Welwood is said to have been the first to clearly enunciate a coastal state's authority over living resources adjacent to its shores. What is more, and of more than passing interest, he based his argument, at least in part, upon the risk of exhaustion of fisheries posed by otherwise unregulated promiscuous use.

-- Notes by Edward Gordon

Welwood, William (fl. 1578-1622). An abridgement of all sea-lawes (London, 1613).
Rare Book Collection, Lillian Goldman Law Library.

Freedom of the Seas, Part 4

Mike Widener — Thu, 22 Oct 2009 20:25:00 GMT

Freedom of the Seas, 1609: Grotius and the Emergence of International Law
An exhibit marking the 400th anniversary of Hugo Grotius's Mare Liberum
Part 4

As it happens, the publication of Mare liberum came too late to influence negotiations with Spain. It served instead to ignite a fierce debate over the freedom of the seas that continued throughout the 17th century – what later scholars were to call the "Battle of the Books." Grotius contended that nature and public utility alike forbid the acquisition of property rights in the sea. Unlike land, the sea (and the air) cannot in practice be occupied, demonstrating that nature intended it to be free to all to use. Being inexhaustible in use, moreover, it is not susceptible of occupation, which is necessary when the utility of things can be preserved only if they become private property.

The defense of Portugal's imperial claims in the East Indies fell initially to Seraphim de Freitas, a Portuguese theologian-jurist, professor at the University of Valladolid, in a treatise published in 1625 under the name De iusto imperio Lusitanorum Asiatico (On the Just Empire of the Portuguese in Asia). Vastly larger and longer than Grotius's mere pamphlet, De iusto imperio was highly critical not only of the youthful Grotius's arguments, but of its factual inaccuracies and misleading references and inferences as well.

Freitas contended that the right to free trade and navigation, whatever its roots in natural law, had never become a part of the law of nations. A sovereign could exclude foreigners from his territories or commerce and could forbid his subjects to trade with them. He conceded that the pope lacked an abstract right to accord dominion over newly discovered territories and peoples, but insisted that his authority as the spiritual dominus mundi entitled him to grant an exclusive right to spread the Christian faith and civilization. Since, to be effective, this right necessarily involves both trade and limited conquest, the pope had the authority to grant Portugal-Spain the right to exclude other powers from the east.

De iusto imperio was expanded upon four years later by a Spanish jurist named Juan de Solórzano Pereira (1575-1655), in a treatise entitled Disputationem de Indiarum iure. Scarcely known or written about by English-speaking scholars, De Indiarum iure is regarded by some Spanish scholars as the most systematic juridical formulation of the legitimacy of Spain and Portugal's 17th century claims. Unlike Freitas, Solórzano Pereira said that, regardless of the legitimacy of the 15th century papal grants on which they were said to be based, Portugal's actual control and occupation of the new territories were sufficient in themselves to satisfy the requirements for retrospective ownership (prescription) recognized in both Roman and customary law.

Neither Freitas's nor Solórzano Pereira's treatise had as much influence in the 17th century as their intellectual content warranted, perhaps because they were too learned and too long, but in any event because the center of intellectual interest and political power was shifting from Spain to England.

-- Notes by Edward Gordon

Solórzano Pereira, Juan de (1575-1655). De Indiarum jure (Lyons, 1672).
This work became the definitive treatise on the laws governing Spain’s overseas colonies.
Rare Book Collection, Lillian Goldman Law Library.