Borderlines

Episode 29 of Borderlines features distinguished scholar Professor Curt Bradley (Chicago) discussing his new book, Historical Gloss and Foreign Affairs: Constitutional Authority in Practice (Harvard University Press, 2024). Berkeley Law professor and Borderlines guest host Elena Chachko brings her foreign relations and administrative law background to guide this fascinating interview.

In the more than two centuries since the U.S. Constitution was adopted, the constitutional law that governs how the United States interacts with the rest of the world has evolved significantly. This evolution did not come about through formal amendments to the text of the Constitution or even through U.S. Supreme Court rulings. Instead, it came about primarily through the actions and interactions of Congress and the executive branch, as they responded to the changing nature of both the United States and the world environment.

Listeners will learn how and why the law governing the separation of powers, covering topics such as the making of “executive agreements,” the termination of treaties, and the waging of war, has been developed over time through historic governmental practices, rather than through judicial decisions or constitutional redrafting.

In his 1952 concurrence in the Youngstown steel seizure case, Justice Felix Frankfurter invoked the term “the gloss of history” to describe this phenomenon. Professor Bradley’s pioneering research illuminates the role of historical practice, or gloss, to justify both expansions of, and limitations on, presidential and legislative power relating to foreign affairs. The conversation brings fresh insights about the role of courts, the U.S. legal system’s relationship with international law, and “undeclared” U.S. military conflicts such as the Korean War and the “war on terrorism.”

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For a full transcript and more show notes, please visit this episode page in the Berkeley Law podcast hub.

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The US welcomes refugees from Afghanistan but turns away Haitians. Why? Debating how best to share responsibilities for refugees, UCLA professor Tendayi Achiume argues that empires owe special duties to former colonies; Temple Professor Jaya Ramji-Nogales explains the special rules following the US occupation of Iraq and Afghanistan; while Berkeley professor Seth Davis contrasts how different US states, notably Texas and California, respond.

We discussed Title 42 – a controversial public health tool used to close the Southern border, and discussed how climate change calls for a new response to mass migration, as a new White House report emphasizes. We also compared regional solutions, including solutions that can be fairly called responsibility sharing, and others that resemble responsibility dumping.

For more details, stay tuned for a special spring 2022 symposium issue of the California Law Review featuring many perspectives on refugee responsibility sharing.

Borderlines from Berkeley Law is a show about global problems in a world fragmented by national borders.

Our host is Katerina Linos, Tragen Professor of International Law and co-director of the Miller Institute for Global Challenges and the Law. In each episode of Borderlines, Professor Linos invites three experts to discuss cutting edge issues in international law.

For a transcript, please visit the episode page on the Berkeley Law podcast hub.

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Second in a four-part series of special Borderlines episodes with UC Berkeley Law guest hosts Professor Roxanna Altholz and Professor Laurel E. Fletcher shining a spotlight on human rights champions—all guest speakers in their Human Rights Practice Workshop course, where leading practitioners working in a variety of institutional settings speak about their struggles against corruption and impunity, the relationship between legal and social justice, and the future of human rights movements.

Episode 18 of Borderlines features guest host Professor Roxanna Altholz, Co-Director of Berkeley Law’s Clinical Program and its International Human Rights Law Clinic, in discussion with Natali Segovia, Quechua, Legal Director, Water Protector Legal Collective and international human rights lawyer with extensive experience in criminal defense work and Federal Indian Law. Ms. Segovia shares the story about the Water Protector Legal Collective, a legal nonprofit, grew out of the No Dakota Access Pipeline resistance at Standing Rock and works to provide legal support and advocacy for Indigenous peoples and climate justice movements.

Listeners will be enriched by powerful first-hand accounts of struggles to stop destruction of the environment and defend the rights of Native people affected by forced displacement, desecration of sacred lands, and human rights violations. Issues covered include leveraging of the UN Declaration of the Rights of Indigenous Peoples with the US framework; SLAPP suits and the criminalization of protest; and protecting cultural and tribal sovereignty against encroachment.

For a transcript, please visit the episode page on the Berkeley Law podcast hub.

Hosted on Acast. See acast.com/privacy for more information.

Fourth in a four-part series of special Borderlines episodes with UC Berkeley Law guest hosts Professor Roxanna Altholz and Professor Laurel E. Fletcher shining a spotlight on human rights champions—all guest speakers in their Human Rights Practice Workshop course, where leading practitioners working in a variety of institutional settings share their struggles against corruption and impunity, the relationship between legal and social justice, and the future of human rights movements.

Episode 20 of Borderlines showcases guest host Professor Laurel E. Fletcher, Co-Director of Berkeley Law’s International Human Rights Law Clinic and the Miller Institute for Global Challenges and the Law in conversation with Professor Justin Hansford (Howard) about his role as a member of the new UN Permanent Forum on People of African Descent.

In the aftermath of the murder of George Floyd, in 2021 the United Nations established the Permanent Forum on Peoples of African Descent (PFPAD). This new, consultative body has a mandate to undertake a range of activities with the goal of “improving the safety and quality of life and livelihoods of people of African descent.” Professor Hansford shares his views about this new consultative mechanism, which addresses anti-Black racism as a UN platform, including its development, opportunities and challenges, and what was at stake in getting it approved and realized. He also examines reparations from a global and a US perspective, and discusses ideas for putting human rights strategy and practice into action in local marginalized communities.

For a transcript of this episode, please visit the episode page on Berkeley Law website.

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Episode 24 of Borderlines features a rare look behind the scenes at the International Court of Justice with The Honorable Joan Donoghue (’81), recently retired president of the ICJ, in candid conversation with host Professor Katerina Linos. They discuss ongoing disputes, including South Africa v. Israel and the Chagos Archipelago advisory proceeding; key Court functions, such as provisional measures, advisory proceedings, and contentious case resolution between nations; and what it’s like to serve in this preeminent global arena.

Established in 1946 to settle legal disputes between Member States and offer advisory opinions to UN organs and agencies, the ICJ is the United Nations’ top court, also known as the World Court. The International Court of Justice is made up of 15 judges, elected to nine-year terms without regard to nationality by the UN General Assembly and Security Council.

Judge Donoghue remains one of Berkeley Law’s most distinguished alumni in the field of international law. She was selected for her qualifications, including high moral character, impartiality, and integrity, to represent the U.S on the Court in 2010, re-elected in 2014, and chosen by fellow ICJ judges as president in 2021.

Before her judicial appointment in The Hague, Judge Donoghue had a long career at the U.S. State Department, cumulating in her role as Principal Deputy Legal Adviser advising Secretary of State Clinton and President Obama on all matters of international law. She also was Deputy General Counsel of the U.S. Treasury Department, overseeing every aspect including international financial institutions, and lead general counsel for Freddie Mac. She has taught international law courses at several law schools, including Berkeley. Judge Donoghue is the recipient of many awards, including Berkeley Law’s 2015 Riesenfeld Award, and is Honorary President of the American Society of International Law.

For a transcript of this episode, please visit the episode page on Berkeley Law website.

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