Letters Blogatory

The Blog of International Judicial Assistance | By Ted Folkman of Folkman LLC

Publication of the Day: The HCCH Service Convention in the Era of Electronic and Information Technology

Posted on November 24, 2020

The Hague Conference on Private International Law has just published The HCCH Service Convention in the Era of Electronic and Information Technology, a set of papers stemming from the HCCH a|Bridged 2019 conference held almost a year ago. I was one of the speakers, and my paper on Email as a Secure Means of Transmission under the HCCH Service Convention is the first paper in the collection.

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Case to Watch: Aljabri v. Bin Salman

Posted on November 16, 2020

I’m keeping an eye on Aljabri v. Bin Salman, a blockbuster complaint brought by Dr. Saad Aljabri, who claims that the crown prince of Saudi Arabia, Mohamed Bin Salman, is trying to have him killed. The complaint alleges that after he fled from Saudi Arabia, Dr. Aljabri received a Whatsapp message from the Crown Prince demanding that he return immediately. So it seems that Dr. Ajabri has the Crown Prince’s Whatsapp number. So perhaps it’s not surprising that he has purported to serve process on him via Whatsapp. Saudi Arabia is not a party to the Hague Service Convention, so if the court has authorized it, the service probably complies with US law. Curiously, the docket does not seem to show a motion for leave to serve by alternate means under FRCP 4(f)(3), though there are several documents filed under seal, and I suspect one of them is a motion for leave to serve by alternate means.

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I Hear America Singing

Posted on November 9, 2020

Readers, some of you have been asking why I haven’t commented on the election yet. I thought it was best to let the situation play out before commenting. But now that we know that Joe Biden will be the forty-sixth President of the United States, here are the official Letters Blogatory thoughts about the election.

First, this was not a policy election: the Republican Party did not even have a platform this year, and there will be divisions among Trump’s opponents about the direction the incoming administration should take. This was a referendum on Donald Trump and his fitness for office. Long-time readers know that I thought the election of Donald Trump in 2016 was a moral and political catastrophe. I have the receipts to prove it. Trump was Plato’s tyrannical man, the Founding Fathers’ demagogue, brought to life. With a twist: no one imagined that when the demagogue came he would be so inept. But he was in my view a real and immediate threat to American constitutional democracy and to America’s place in the world. Trump’s policies were mostly very bad, and some (especially his policies on immigration) are going to be a blot on the nation’s reputation for many years. He managed a couple of successes, notably the renewed momentum behind the US manned space program and in the dramatic movement towards peace between the Arab states and Israel. But no policy successes could ever justify a president who was simply incapable of considering anyone’s interests except his own and who could not go a day—even on the first day of his administration—without blatant lies, who was demonstrably a person of low character throughout his life, who saw no value in our alliances, and who surrounded himself with unqualified sycophants and who fired anyone who wasn’t willing to debase himself with ridiculous displays of fealty and with support for terrible policies.

Second, America repudiated Trump, and while the counting is not yet complete, it appears that the voters delivered precisely as many electoral votes (306) as Trump won in 2016, which he and his advisors called a “landslide”—and the voters delivered millions of more votes for Biden than Trump received in 2016 or in 2020. On the other hand, the voters did not give the GOP the drubbing it and its leaders deserved for enabling Trump and failing to stand up to him. So several of the most obsequious and least courageous Republicans, such as Senators Lindsay Graham, were returned to office. And while leading Republicans including Sen. Mitt Romney, Gov. Charlie Baker, and former President George W. Bush have offered their congratulations to the President-elect, most Republicans, in what is either a cynical effort to derail a smooth transition or cowardice in the face of what they imagine their voters will think, have refused to do anything to suggest that the election is over. What’s particularly awful about this is that the Republicans seem to have forgotten that the job of elected representatives in our democracy is not just to “do what the people want”—it’s to help shape public opinion in ways that are good for the ocuntry. It seems to me that these Republicans now have an exit ramp if they want it. They don’t have to be afraid of Trump anymore! Senator Graham doesn’t have to face the voters for six years! They can, if they want to, start to lead their supporters towards a more reasonable, less apocalyptic politics. That was President-elect Biden’s message on Saturday night when he implored Republicans and his own supporters to “give each other a chance.” Echoing the words of Lincoln, he said, “They’re not enemies, they’re Americans.” Let’s hope that the Republicans take the opportunity. I don’t expect President Trump will: he may never concede, and I question whether he will attend the inauguration ceremony. He certainly did not display the kind of grace and support that President Obama offered to him in the immediate aftermath of the 2016 election. Indeed, as I reported in 2016, the day after the election, the “lamestream media,” as the President calls it, did its part to legitimize his election: “Steve Inskeep on NPR was discussing President-elect Trump’s invitation to the White House to meet with President Obama in the same reassuring tones I hear every morning.”

Third, America got its mojo back. The last four years have been very difficult for everyone who cares about the nation. “What about Trump’s supporters?” you may ask. It seems to me that even Trump’s supporters had a bad four years. They were angry and anxious the entire time, like the rest of us. But I still believe (foreign readers, you may commence the eye-rolls, but I am being serious!) that America is exceptional among the nations of the world. We put a man on the moon! We invented the Internet! We created rock and roll and Hollywood! We saved Europe from Nazism and Soviet Communism! America is supposed to be a raucous, exuberant, creative place, “Strong, ample, fair, enduring, capable, rich / Perennial with the Earth, with Freedom, Law and Love.” I hope the rest of the world feels as hopeful as much of America feels today, and I hope that Trump’s supporters, listening to the President-elect’s speech on Saturday night, will remember what it is like to have a leader who speaks to the best in America rather than the worst. And I hope people in countries with their own authoritarian or demagogic leaders take heart. You don’t have to resign yourself to these guys! This election result should worry the dictators and dictator-wannabes of the world.

Fourth, while the mechanics of American democracy are showing their age, you have to admire how well they worked this year. I have no doubt that if the President could have rigged the election he would. But our system of separation of powers kept the President from using subservient courts to do his will: it seems highly likely that all of the dubious challenges we’ve read about so far will fail. And our system of federalism, in which each state conducts its own election, made it functionally impossible for the President to corrupt a single, national election overseer. On the other hand, one of the features of our system, the electoral college, made this election much more dramatic than it ought to have been when you consider that when all the votes are counted, it appears that President-elect Biden’s margin of victory in the popular vote will be about 7 million votes.

Finally, and maybe of particular interest to Letters Blogatory readers: I hope we will now begin to rebuild our alliances, which have been shaken by four years of malign neglect. I hope the Biden administration, along with the more experienced Republicans in the Senate, will reaffirm the value of NATO and of our other close alliances around the world, including in the Americas. I hope we will rejoin multilateral bodies and efforts such as the World Health Organization, the Paris climate accord, and others. And who knows, perhaps the Judgments Convention and the Choice of Court Agreements Convention might finally become a reality for us!