The Asymmetry Problem: Reflections on Calvin Massey’s Standing in State Courts, State Law, and Federal Review

This paper is based on remarks delivered at a symposium to honor my University of New Hampshire School of Law colleague Calvin Massey, who passed away in the fall of 2015. The paper discusses an asymmetry in federal standing law. The asymmetry lies in the fact that, when a state’s highest court decides the merits of a federal claim brought in circumstances where the claimant has standing under state law but not federal law, the United States Supreme Court has jurisdiction to review the decision only if the state supreme court upholds the federal claim. This asymmetry was the subject of a 2015 essay that was Calvin’s last piece of published scholarship. In the essay, Calvin used a hypothetical state-aid-to-religion fact pattern to illuminate the asymmetry, to emphasize its problematic nature, and to propose a solution. This paper agrees with Calvin that the asymmetry is problematic and advances three preliminary hypotheses, to be developed in future work, about how various federal and state institutional actors could ameliorate the problem. The first hypothesis is that Congress should consider legislating to ensure that a party facing a federal claim in state court in circumstances where a federal justiciability doctrine would bar the claim in federal court can remove the claim and obtain its dismissal. The second hypothesis is that the United States Supreme Court should consider using its power to create constitutional common law to fashion remedy-limiting doctrines drawn from federal justiciability principles and to impose these doctrines on state courts as affirmative defenses to federal claims. The third hypothesis is that, even in the absence of a federal mandate, state courts should apply conflict-of-laws theory to withhold relief for claims based on federal law in circumstances where federal courts would lack the power to afford the claimant a remedy

Regulating Human Rights: International Organizations, Flexible Standards, and International Refugee Law

The bad actor problem, or the puzzle of how to get known human rights violators to improve their practices, is central to human rights scholarship and policy-making. Scholarship has largely focused on understanding how and if state commitments to multilateral international human rights treaties, such as the International Covenant on Civil and Political Rights, can improve human rights practices. This article reframes the bad actor problem as a regulatory matter, suggesting that international agencies may, under certain conditions, provide a way to get even\u27 bad actors to improve their human rights practices. By flexibly interpreting international law, international oganiZations can use their authority to coordinate state interests, while enhancing the credibility of state commitments and providing valuable legal cover for state actions. I present examples of how international agencies may and have improved human rights practices, focusing on the case of the use of international refugee law during the post-2003 Iraqi refugee crisis in Jordan and Syria. My analysis suggests that traditional scholarly discussion of promoting compliance with international human rights instruments may be misplaced, and that the role of international agencies in regulating human rights deserves further attention

Lawfare as a Policy Tool in Sino-American Relations: The Case of Huawei CFO Meng Wanzhou

Competition between the United States and China is at an all-time high. Despite decades of diplomacy between the East and West, recent trends suggest the two powers are drifting further apart. To understand US-China relations, it is critical to understand major developments as they occur. This paper examines the geopolitical significance of United States v. Meng (2020), an extradition case in which US authorities requested the transfer of Chinese tech executive Meng Wanzhou to American jurisdiction. Despite US policymakers declaring Meng and Huawei to be threats to national security, the eventual dismissal of all charges Meng faced presents a puzzle to policymakers and academics alike, who wonder why such a high-profile case could be dropped years later. Through analyzing primary sources from the United States, China, and Canada, I conclude that the trial in question stems from larger geopolitical themes of US-China competition and represents an example of lawfare being used as US foreign policy tool. This trial has wide-reaching implications for the foreign policy strategies of the United States and China, notably in the economic, technology, and security arenas, and represents a rift from the international laws and norms surrounding sanctions, which have typically been a multilateral affair