Message from the Chairs

This year we have restructured our committee to focus on the substantive areas of international litigation of greatest important to our diverse member litigators around the country and the world. In addition to our European litigation subcommittee, we have created subcommittees for Asian and Latin American litigation. We have added separate subcommittees to concentrate on international civil, government and criminal litigation, defined to include both litigation in the US involving foreign parties or issues as well as litigation abroad involving US parties or issues.

We have also created two new subcommittees to deal with two critical questions in the current international law arena: What is the role of the US litigator on the international legal scene? And what role if any should foreign law play in US litigation?

The first issue – the international role of the US litigator – reflects some of the themes on which the Section Chair Brad Brian proposes to focus this year. What does it mean to be a lawyer generally and a litigator in particular? How do lawyers contribute to the legal community and to society more broadly? How can we ensure that all lawyers and especially young ones find satisfaction and balance in their professions and their lives? All of us struggle with these questions in our practices, whether public or private, but they are as, if not more, relevant when raised to the international law level. American litigators have participated in a broad range of projects on the global stage with varying degrees of success. They have prosecuted international war crimes, mediated international disputes, helped develop national constitutions and legal systems, fought for international civil rights, and participated in new modes of resolving civil cases between parties of different nationalities. Our subcommittee chair Nosizi Ralephata, a native of Zimbabwe and now a commercial litigator with Turner, Padget in South Carolina, will explore these multifaceted roles as well as the perception of US litigators abroad. Her subcommittee’s work may bring a new perspective to the ever-shifting dynamic between lawyers and the communities they serve.

The second question – the role of foreign law in US courts – could not be more timely. Fronted at the recent hearings on the nomination of John Roberts to the Supreme Court and bitterly disputed by members of bar, the controversy over the proper weight to be accorded “precedents” from foreign courts merits careful thought. Our new subcommittee chair Karl Thompson, a litigator at O’Melveny & Myers in Washington DC will examine the meaning of the controversy and the sometimes sloppy nomenclature that tends to obfuscate rather than clarify the debate. US courts spent most of the nineteenth century looking to British common law for precedents, as the Constitution appears to counsel. In recent years, some Justices have invoked the moral and legal views of foreign courts or peoples, not as precedent per se, but as evidence of international consensus to be considered in interpreting constitutional values. In between these poles, US courts have had a long-standing and ambivalent relationship with the decisions of their foreign counterparts, one that sometimes reflects as much about America’s view of itself and of its justice system as about legal doctrine.

Finally, our committee will continue to confront issues arising from the practical and sometimes mind-bending challenges presented by litigation involving foreign parties, issues and courts: questions such as foreign discovery, jurisdiction, procedure, the international scope of US and foreign criminal laws, and the web of international agency regulations to which US and multinational corporations now find themselves subject. With increased globalization, these issues are of growing concern to every litigator, not only those who consider their practices to be “international.” As any practitioner knows, the line between domestic and international litigation has become ever more difficult to discern.

As in past years, we hope to continue to serve our membership, to increase both the numbers and diversity of our membership and to encourage broad participation in the work of the committee. We look forward to hearing from our members about both topics they would like to see addressed and ways in which they would like to contribute. And again, thank you for your continued support.

Louis Burke
Jerry Roth
Barbara Dawson
Co-Chairs, International Litigation Committee