Casebooks, by their nature, are dense with the complexities of any subject on which their titles claim authority. University of Virginia School of Law professor George Rutherglen’s new book hopes to simplify that problem for students learning international civil litigation by providing a framework for thinking about this relatively new form of law.
"Transnational Civil Litigation: Principles and Prospects," published by Foundation Press, is a companion to 2013's "Transnational Civil Litigation," co-authored with UVA Law's Michael G. Collins and University of Frankfurt professor Joachim Zekol. But Rutherglen said the book could also be used as a supplement for any class on the topic.
"International civil litigation, like a lot of emerging fields of law, starts off as a hodgepodge of issues," he said. "Students who are somewhat puzzled by a course in international civil litigation can pick up my little book and see how these disparate topics are actually connected."
The book summarizes important issues and puts them into a theoretical structure that makes them easier to understand. Rutherglen said the concepts of sovereignty, individual rights and political accountability are three unifying themes.
Sovereignty — the power and domain that nation's claim — is best thought of in terms of how it plays out in court rulings and agreements, rather than in terms of the rights a nation theoretically should or shouldn't have, he said.
"You can argue endlessly about sovereignty," Rutherglen said. "But instead of arguing about it at the abstract level — exactly what is a sovereign — I think it's much more fruitful in the law to see how it plays out in particular specific disputes."
He gave, as an example, a dispute in oceans law: "Who owns islands in the South China Sea?"
The rights of individuals to assert liberties, versus the needs of the greater society, provide another theme that recurs in international civil disputes.
"That's a tension that runs throughout the law, whether we're concerned with collective benefits, or whether we're also concerned with protecting individual rights," he said. "We try to reconcile them by allocating individual rights so that they lead to collective benefits. But they don't always."
Political accountability for illegal acts, such as human rights abuses, is a third lens for viewing the law that is often viewed by casual observers as at the mercy courts that act on their own discretion.
"In American law we're very concerned about the legitimacy of judicial decisions," he said. "One way to answer that is to say their power comes from responsiveness to the political branches of government." He gave as examples the U.S. president, who has the power to conduct foreign and military affairs, and Congress, which regulates international relations and trade. Judiciaries are subject to their precedents and authority.
"My position is, the courts cannot protect human rights or protect international commerce all by themselves," he said. "They depend on an infrastructure of statutes, regulations and executive actions that provide the context on which they act. And so international civil litigation, like a lot of other complicated bodies of law, really constitutes an extended dialogue among all three branches of government."
George Rutherglen is the John Barbee Minor Distinguished Professor of Law and the Barron F. Black Research Professor of Law at UVA. He teaches admiralty, civil procedure, employment discrimination and professional responsibility.
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