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Professor Penny Venetis Brings International Human Rights Law Focus to Clinical Program

When Penny Venetis joined Rutgers School of Law–Newark in 1993 from O’Melveny & Myers, she had experience both in complex commercial litigation and in projects focused on human rights abuses. The latter included working with the UN Special Rapporteur looking into war crimes in Bosnia and investigating human rights violations in Peru.

That kind of experience was what the Constitutional Litigation Clinic sought when it decided to expand the scope of its cases and projects to international human rights. With her scholarship and much of her litigation focused on methods of integrating human rights law into U.S. jurisprudence, Venetis, who is Clinical Professor of Law and Co-Director of the Constitutional Litigation Clinic, has furthered the conversation about an important area of law and enhanced the clinic’s reputation for litigating landmark cases.

In 2008, the clinic was honored by the Clinical Legal Education Association for Jama, et al. v. Correctional Services Corp., et al., which set new precedent in international human rights law. The achievements of Jama, which Venetis and her students worked on for more than 10 years, as well as the commitment of the clinic, its faculty, students, and alums also were applauded by the New Jersey Law Journal in a 2007 editorial titled “A Tribute to Our Profession.”

Con Lit at Supreme Court
Justice Ruth Bader Ginsburg (center) met with Clinical Professor Penny Venetis (3rd from right) and her Constitutional Litigation Clinic students at the U.S. Supreme Court when they attended oral arguments in the Kiobel and Mohamad cases. Students are (l-r): Michael Bittoni ’12, Awinna Martinez ’12, Erin Phalon ’12, Diego Iniguez-Lopez ’13, and John Burzynski ’12.

Venetis’s scholarship has also received recognition. Her 2011 Cleveland State Law Review article on the unconstitutionality of Oklahoma’s amendment banning the application of Sharia law or international law was cited extensively by litigants who successfully challenged the law in the 10th Circuit Court of Appeals.

And her latest paper, on the intersection of international human rights law and U.S. constitutional law, was selected for presentation at the International Human Rights Section during the January 2012 annual meeting of the AALS. The paper, “Making Human Rights Treaty Law Actionable in the United States: the Case for Universal Implementing Legislation,” is forthcoming in the University of Alabama Law Review.

Venetis and her Constitutional Litigation Clinic students also continue to work on issues closer to home, including assuring the integrity of electronic voting machines used in New Jersey.

Venetis discusses her work in the following Q&A:

You have been teaching at Rutgers–Newark for nearly 20 years. What are your reflections on the law school and our students in your two decades here.

This law school is a very special place, and I am honored to be a part of it. The students that I teach are creative, hard-working, and dedicated to civil liberties and human rights. I am proud to report that many of my students continue to work with the Constitutional Litigation Clinic after they graduate. Even former students who practice corporate law in large law firms dedicate their time, pro bono, to work on civil liberties issues. Some former students even serve as co-counsel in lawsuits that the clinic has filed.

You and your Constitutional Litigation Clinic students filed an amicus brief in two cases in which the U.S. Supreme Court has been asked to hold corporations liable under the U.S. Alien Tort Statute for human rights violations committed overseas. What are the basic questions presented by these cases and what drew you to file the brief?

I was hired by Rutgers Law School almost 20 years ago because of my human rights law background, and to introduce human rights law into the Constitutional Litigation Clinic’s docket and seminar. The issue of corporate and entity liability for human rights violations is one that I have worked on very closely in a number of litigations, most notably the Jama v. INS case that the clinic litigated from 1997-2007. That case broke new ground by establishing corporate liability for human rights abuses committed in the U.S. 

The issue of corporate liability for human rights abuses committed abroad has been well-settled law since the mid 1990s. The Second Circuit Court of Appeals threw a wrench into that jurisprudence in 2010 in the Kiobel case. Notably, every other federal appeals court that has addressed the corporate liability issue has rejected the Kiobel analysis. The Supreme Court took the case to resolve the circuit court split. Given that the Constitutional Litigation Clinic has been working on this issue for 15 years, there was no question that my students and I would submit an amicus brief to the Supreme Court in the Kiobel and Mohamad cases.

After the oral arguments in February, the Court ordered one of the cases to be reargued in the fall. What is your reaction to the Court’s decision?

The Court’s action was highly unusual. The Court asked for re-argument on an issue that was not part of the appeal and that has been well-settled for quite some time. That issue is whether federal courts have any business hearing human rights cases where the abuses occurred extra-territorially. Although this is a legitimate question, in 2004, in Sosa v. Alvarez-Machain, the Supreme Court endorsed such lawsuits under the Alien Tort Statute. The ATS was enacted in 1789 by our very first Congress. There has been a turnover in the Supreme Court since Sosa was decided. But, starre decisis would dictate that the Sosa opinion be upheld. My students and I are drafting another amicus brief on to the U.S. Supreme Court on this very issue.

The last time that the Supreme Court asked for additional briefing on an issue that was not before the Court was in the Citizens United case. Many commentators believe that because of that case, a request for re-argument is a death knell. But I do not believe that is the case. The Supreme Court has decided only one human rights case. Several important cases are working their way through the federal courts. Perhaps the Supreme Court wants to resolve all outstanding issues in one case, so that lower federal courts and litigants know how to proceed.

The Constitutional Litigation Clinic has achieved significant success in litigating to require greater reliability and security with the electronic voting machines used in New Jersey. Can the state’s citizens now be confident that their computerized votes will be counted as cast or is there more work to be done?

I wish that I could say that New Jersey’s voting machines count votes as cast; but, unfortunately, I cannot do so. Even though we were instrumental in helping to draft and pass legislation that required that voting machines produce voter verified paper ballots, and that a certain percentage of those ballots be audited after each election, that legislation has not been enforced.  

Every scientific study performed of computerized voting systems shows that they are insecure and can be hacked by someone with the equivalent of a bachelor’s degree in computer science. That is why we need to be able to audit computerized voting machines through the use of voter verified paper ballots. At this point, most of the country votes on auditable systems. It is unfortunate that despite having enacted the “gold standard” of voter verification laws, New Jersey is far behind the rest of the nation in ensuring that every vote counts. 

Our lawsuit, which is in its eighth year, asks the courts to step in to protect the franchise because the executive branch has failed to do so, in violation of the legislature’s (and by implication, the public’s) will.

You’ve published three major articles in the past year and are working on a book. What is the relationship between your scholarly work and your litigation? 

Both my litigation and my scholarship focus on the interplay between international law and constitutional law, and how to incorporate international law into U.S. jurisprudence. My scholarship allows me to explore these issues in a less constrained way. The litigation process is adversarial, and arguments presented in briefs have to be guided by well-settled legal principles.

I do not have these same constraints when writing articles and books. There is more room to explore models of what the law should be. Additionally, my scholarship focuses on model legislation and model adjudicatory systems — things that I cannot explore in my litigation.