Category Archives: United States

August 29, 2011 · 20:42

US courts, Thai law

I’ve mentioned Thailand’s lesse majesty prosecutions. On it’s face, it’s not clear how Thai legal activists can respond to what many see as out-of-control prosecutions against the Thai elite’s enemies. That’s why I found it interesting to see a New Mandala blog post about a legal response to lesse majeste – but in a U.S. court! The World Organization for Human Rights has brought a suit against web hosting firm Netfirms, Inc., for releasing the identity of an anonymous poster on a Thai prodemocracy website. According to the complaint, the poster, Anthony Chai, was:

subsequently detained at the Bangkok airport, taken to the Department of Special Investigations, and interrogated about his postings on the website. After finally being released from police custody in Bangkok and returning home to California, Mr. Chai was then interrogated by Thai officials over the course of two days on U.S. soil at a hotel in Hollywood, California. Mr. Chai was later informed by Thai officials that if he returns to Thailand, he will be arrested and charged with violating lese majesté laws.

Unfortunately, I’m not caught up with U.S. jurisprudence on the Alien Tort Claims Act (ATCA) and other human rights law, so I won’t hazard a guess as to the outcome. Still, I’ll make a few observations. First, unlike in many ATCA cases, the company did clearly take an action that had an impact on the plaintiff. There will probably be no debate over whether the company knew or should have known that Thailand was prosecuting lesse majeste.

That being said, Mr. Chai, a California native, did return to Thailand after making the post and has been released from prison. In fact, the Thai government has warned him it would arrest him on future trips, so Mr. Chai would have to actively return to Thailand in order to suffer further harm. A judge might view this as too speculative to rule on for concrete damages.

Over the next few weeks and months I’ll try to follow the case and also get a better sense of U.S. law in this area. I know other U.S. internet firms have been sued on similar legal grounds (such as Yahoo releasing data to the Chinese government about political dissidents). In the meantime, for those interested in learning more, you can download the full complaint here.

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Filed under lesse majeste, Thailand, United States, USA

December 3, 2010 · 14:38

Book Review: The Four Justices Who Built Modern U.S. Constitutionalism

It seems as if there’s a veritable slew of good books about Supreme Court justices this year. The latest, Noah Feldman’s Scorpions: The Battles and Triumphs of FDR’s Great Supreme Court Justices, focuses on four of Franklin Roosevelt’s appointees: Felix Frankfurter, Hugo Black, Robert Jackson, and William O. Douglas. 

Each of these justices is fascinating and could merit an individual biography (and there are biographies on each). By writing a joint biography, however, Feldman is really able to compare and contrast these men and their jurisprudence. Frankfurter was the activist law professor who was reluctant to exercise judicial review. Hugo Black, a former KKK member, became a noted civil libertarian and read the constitution literally. Robert Jackson, a small-town lawyer and later Nuremberg prosecutor, usually judged cases with an eye towards pragmatic policy solutions. William O. Douglas pined for political office but settled for preaching liberal values. Together, these men developed or promoted the modern constitutional doctrines of judicial restraint, originalism, pragmatism, and liberalism. 

Outside the legal realm, these four justices often fought and bickered to a degree startling for four liberals appointed by the same president. Robert Jackson, who at law schools is portrayed as a reverential figure, got into a petty argument with Black over whether the latter should recuse himself in a case involving a former lawyer partner. Jackson even took his dispute public, sending cables from Nuremberg to impugn his colleague. Frankfurter viewed Black as an intellectual lightweight and relied on a network of mentees to conduct historical research against Black’s legal philosophy. Douglas comes off as boorish, especially to his law clerks. However, there are some heartening moments too, such as when Frankfurter defends Jackson against the latter’s former ungrateful law clerk, William Rehnquist. 

I haven’t been a fan of Feldman’s past work, particularly the lightweight The Fall and Rise of the Islamic State (Council on Foreign Relations Book). However, I think he gets Scorpions: The Battles and Triumphs of FDR’s Great Supreme Court Justices just about right. For law students like me, I can recognize some of the cases and legal debates to which the book refers. It certainly furthered my understanding of these cases. Perhaps best of all, having a passing familiarity with these justices, I was still genuinely shocked by some of the book’s anecdotes (particularly the petty fueds). However, it’s generally accessible enough for any reader interested in American history to understand and enjoy. 

My only “criticism” of Scorpions is that it’s not long enough to do the subject full justice. I know, that’s a common faux criticism. The main narrative essentially ends with Jackson’s death in 1954, after Brown v. Board. However, Feldman alludes to tantalizing hints of how the other justices behaved afterwards. For example, Black and Douglas, despite being ideological allies during the 1950s, stopped speaking to each other in the late 1960s. Yet, Feldman doesn’t really explain why. I felt like the book could really have benefitted from just a few more pages. 

Overall, I’d highly recommend this for readers interested in the Supreme Court in particular, or just U.S. history generally. I’d also recommend Jeff Shesol’s Supreme Power: Franklin Roosevelt vs. the Supreme Court, which covers FDR’s court-packing scheme and acts as a nice prequel to Scorpions.

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Filed under constitution, United States

June 16, 2010 · 15:06

The Lighter Side: Too Sexy for my Boss

Before I begin, I’ll just comment that this “Lighter Side” post actually has a serious point – although I hope to make it in a light-hearted way. 
Since I’ve gotten back to the U.S., one frivolous lawsuit has stood head and heels (and other body parts) above the rest. Debrahlee Lorenzana (photo on right), a former Citibank employee, is suing for employment discrimination. She claims that – get this – Citibank executives said she was dressing too sexy and had requested that she “stop wearing turtlenecks, pencil skirts, three inch heels or “fitted” business suits.” When Lorenzana pointed out that other females wore way more revealing clothes, she was told those “women’s shapes were different from mine, and I drew too much attention.”
Of course, rather than go quietly into the dustbin of frivolous lawsuits, this has become a media circus. However – now comes the serious part – this whole incident has challenged my stereotypes of Islamic law. I’ve been reading Michael Peletz’s book Islamic Modern (book review coming shortly), which discusses Shari’ah courts in Malaysia. Of course, for women’s rights activists, Islam’s injunctions that women wear headscarves (hejab), pray behind men, and generally sequester themselves from unfamiliar men* all serve to repress women. However, many Islamic scholars argue that these precepts, far from oppressing women, in fact serve to protect them from men’s weaknesses. 
Reading about Ms. Lorenzana, I couldn’t but help view Citibank’s actions in a similar light. Like those controversial provisions of Shari’ah law, Citibank justified its chastising Ms. Lorenzana as necessary to compensate for the weakness of male employees in the office. Like many rights activists critical of Islam, Ms. Lorenzana argues that she as an individual should be entitled to wear whatever she wishes – within bounds. The major difference is that Islamic injunctions apply to all Muslim women, whereas Citibank directed its criticism solely at Ms. Lorenzana, on the grounds that other women didn’t have the same “shape.” I suspect this distinction will play a critical role in the outcome of the lawsuit. 
Nonetheless, this whole incident forced me consider Islam’s attitude towards women in a different light and made me wonder whether, in different circumstances, high-powered Western businessmen would really be all that different from Muslim clerics (or at least Muslim businessmen)!
* I realize that these are gross generalizations of Islamic law, but do at least describe the perceptions of many non-Muslims.

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Filed under United States