Maggie Gardner

Climenko Fellow and Lecturer on Law

2016-2017

Biography

Maggie Gardner's research interests include civil procedure, international law, and criminal law. She studies how domestic actors--courts, regulators, police, and prosecutors--work with foreign peers to address cross-border harms. Her articles on transnational litigation and transnational crime have appeared or are forthcoming in the N.Y.U. Law Review, Stanford Law Review, the Harvard International Law Journal, and the Journal of International Criminal Justice

She received her A.B. cum laude from Harvard College, where she was a Truman Scholar, and her J.D. magna cum laude from Harvard Law School, where she served as a Supervising Editor of the Harvard Law Review. She clerked for the Honorable Sandra L. Lynch of the U.S. Court of Appeals for the First Circuit and the Honorable Michael H. Simon of the U.S. District Court for the District of Oregon, and she completed a year-long fellowship with the Appeals Chamber of the Special Tribunal for Lebanon under the direction of President Antonio Cassese. Ms. Gardner has also practiced as a litigation and appellate associate with WilmerHale LLP in Washington, D.C. In 2016, Ms. Gardner was an inaugural recipient of the HLS Student Government Teaching and Advising Award.

Areas of Interest

Maggie Gardner, Parochial Procedure, 69 Stan. L. Rev. (forthcoming 2017).
Categories:
Civil Practice & Procedure
,
International, Foreign & Comparative Law
,
Government & Politics
Sub-Categories:
Courts
,
Judges & Jurisprudence
,
International Law
Type: Article
Abstract
The federal courts are often accused of being too parochial, favoring U.S. parties over foreigners and U.S. law over relevant foreign or international law. According to what this Article terms the “parochial critique,” the courts’ U.S.-centrism generates unnecessary friction with allies, regulatory conflict, and access-to-justice gaps. This parochialism is assumed to reflect the preferences of individual judges: persuade judges to like international law and transnational cases better, the standard story goes, and the courts will reach more cosmopolitan results. This Article challenges that assumption. It argues instead that parochial doctrines can develop even in the absence of parochial judges. Our sometimes parochial procedure may be the unintended result of decisionmaking pressures that mount over time within poorly designed doctrines: it reflects not so much the personal views of individual judges, but the limits of institutional capacity, the realities of behavioral decisionmaking, and the path dependence of the common law. The Article shows how open-ended decisionmaking in the midst of complexity encourages the use of heuristics that tend to emphasize the local, the familiar, and the concrete. These decisionmaking shortcuts, by disfavoring the foreign, put a parochial thumb on the scale — but that tilt is not limited to individual cases. Rather, it is locked in and amplified through the accumulation of precedent, as later judges rely on existing decisions to resolve new cases. Over time, even judges with positive conceptions of international law and transnational order will find themselves, in applying these doctrines, consistently favoring U.S. litigants over foreigners and U.S. law over foreign or international law. To illustrate, the Article traces the evolution of four procedural doctrines: discovery of foreign evidence, forum non conveniens, service of process abroad, and the recognition of foreign judgments. The decisionmaking pressures outlined here can explain why the first two (framed as open-ended standards) are often criticized as parochial while the latter two (framed in more rule-like terms) are not. And if that account is at least plausible, it supports the primary claim of the Article: that the occasional parochialism of our courts does not necessarily reflect the personal prejudices of our judges. If so, then avoiding the costs of parochialism will require structural, not just personal, solutions.
Maggie Gardner, Retiring Forum Non Conveniens, 92 N.Y.U. L. Rev. (forthcoming 2017).
Categories:
Civil Practice & Procedure
,
International, Foreign & Comparative Law
,
Government & Politics
Sub-Categories:
Courts
,
Judges & Jurisprudence
,
Supreme Court of the United States
,
International Law
,
Treaties & International Agreements
Type: Article
Abstract
It is time for the federal courts to retire the doctrine of forum non conveniens. The doctrine, which allows judges to decline jurisdiction in cases they believe would be better heard in foreign courts, is meant to protect defendant fairness and promote international comity. But given recent developments at the Supreme Court, forum non conveniens is no longer needed to protect defendant fairness, and given flaws in the doctrine’s design, it may be doing more to hurt comity than to help it. This Article looks to the history, current use, and broader context of forum non conveniens to argue that it now causes more problems than it solves. The federal test for forum non conveniens, designed for an outdated domestic context and divorced from its historical roots, is unworkable in the transnational cases where it is used today. Efforts to fix the test are inconsistent or even counterproductive as the needed reforms only increase the test’s complexity — complexity that encourages the development of parochial biases within the test over time. Nor would an effort to redesign the test completely be worth the effort as developments at the Supreme Court have obviated the need for it: judges now have more narrowly tailored tools for addressing concerns about defendant fairness and international comity. Yet the very idea of forum non conveniens is distorting other areas of federal procedure and treaty-making. In short, the federal doctrine of forum non conveniens is unhelpful, unfixable, increasingly unnecessary, and disruptive to the development of more practical tools that would better help judges manage transnational litigation.
Maggie Gardner, RJR Nabisco and the Runaway Canon, 102 Va. L. Rev. Online 134 (2016).
Categories:
Civil Practice & Procedure
,
Government & Politics
,
International, Foreign & Comparative Law
Sub-Categories:
Congress & Legislation
,
Courts
,
Statutory Interpretation
,
International Law
Type: Article
Abstract
In last Term’s RJR Nabisco, Inc. v. European Community, the Court finished transforming the presumption against extraterritoriality from a tool meant to effectuate congressional intent into a tool for keeping Congress in check. In the hands of the RJR Nabisco majority, the presumption has become less a method for interpreting statutes than a pronouncement on the proper scope of access to U.S. courts, a pronouncement that Congress must labor to displace. Besides the worrisome implications for separation of powers, the majority’s opinion was also disappointing on practical grounds. By applying the presumption too aggressively, the Court missed an opportunity to provide much-needed guidance to judges on how to interpret statutes that rebut it. This Essay thus concludes with suggestions for judges about how to interpret statutes that do indicate Congress’s extraterritorial intent.
Maggie Gardner, Channeling Unilateralism, 56 Harv. Int'l L. J. 297 (2015).
Categories:
Criminal Law & Procedure
,
International, Foreign & Comparative Law
,
Government & Politics
Sub-Categories:
Criminal Prosecution
,
National Security Law
,
Treaties & International Agreements
,
International Law
Type: Article
Abstract
When crime reaches across borders to threaten human security or undermine democracy, states often respond by adopting multilateral treaties that obligate each of them to suppress the transnational crime at home. These treaties help, but only to the extent that parties comply with them. Because states generally cannot enforce their laws outside their own territory, transnational criminals can evade prosecution as long as some states are unable or unwilling to meet these treaty commitments. One solution for improving compliance with these treaties may be, counterintuitively, more unilateralism. Using case studies on transnational bribery and drug trafficking, as well as thick descriptions of several more transnational criminal regimes, this Article develops a theory of “channeled unilateralism” to explain how multilateralism and unilateralism can reinforce one another to the same ends. Treaties that channel unilateralism are structured to help motivated states apply their laws to crimes that reach beyond their borders. Specifically, the treaties endorse extraterritorial application of prescriptive jurisdiction and encourage the use of bilateral agreements for enforcement cooperation. These treaty provisions lower reputational and transaction costs for motivated states to expand their enforcement efforts as long as those efforts remain within the framework set by the treaty. Over time, these expanded unilateral efforts may promote broader compliance with the treaty regime by improving information, peer-to-peer contacts, and technical capacity. When channeled effectively, strong unilateral policies may strengthen rather than weaken multilateral regimes.
Maggie Gardner, Piracy Prosecutions in National Courts, 10 J. Int'l Crim. Just. 797 (2012).
Categories:
Criminal Law & Procedure
,
International, Foreign & Comparative Law
,
Government & Politics
Sub-Categories:
Criminal Prosecution
,
Terrorism
,
Courts
,
Comparative Law
,
International Law
Type: Article
Abstract
At least for the time being, the international community must rely on national courts to prosecute modern-day pirates. The first wave of domestic piracy prosecutions suggests, however, that domestic courts have yet to achieve the necessary consistency and expertise in resolving key questions of international law in these cases. This article evaluates how courts trying modern-day pirates have addressed common questions of international law regarding the exercise of universal jurisdiction, the elements of the crime of piracy, and the principle of nullum crimen sine lege. In doing so, it evaluates five decisions issued in 2010 by courts in Kenya, the Netherlands, the Seychelles and the United States, and it proposes some clear answers to these recurrent questions of international law in domestic piracy prosecutions.
Maggie Gardner, Reconsidering Trial in Absentia at the Special Tribunal for Lebanon, 43 Geo. Wash. Int'l L. Rev. 91 (2011).
Categories:
Criminal Law & Procedure
,
Government & Politics
,
International, Foreign & Comparative Law
Sub-Categories:
Criminal Defense
,
Criminal Prosecution
,
Courts
,
International Law
,
Human Rights Law
Type: Article
Abstract
Since Nuremburg, no individual has been prosecuted in an international or internationalized court entirely in his or her absence. That may soon change. The Special Tribunal for Lebanon, which is empowered to try defendants in absentia, has now confirmed its first indictment. While its trial in absentia procedures were met with concern and criticism from some quarters when they were first announced, reconsideration is warranted in light of subsequent judicial developments. The judges of the Special Tribunal for Lebanon have now established in their preliminary decisions an interpretive approach to the Tribunal’s Statute that is adamantly purposive. This purposive approach should lead the judges to apply the Tribunal’s groundbreaking trial in absentia provisions in a manner that is consistent with international human rights jurisprudence, thereby quelling most, if not all, of the prior criticism. This Article first clarifies the debate by disentangling different notions of trials in absentia and by outlining the circumstances under which such trials are considered to accord with modern human rights standards. It then re-evaluates the framework for trials in absentia before the Special Tribunal for Lebanon in light of the Tribunal’s early jurisprudence, suggesting how the judges should interpret and apply these provisions in keeping with their prior case law. It ends with a more pragmatic evaluation of the costs and benefits of trials in absentia and cautions that such trials, while acceptable under the highest international standards of criminal justice, should be undertaken rarely, if at all.

Bar Admissions

Clerkships

Education History

Current Courses

Course Catalog View