It was striking that all but one of the respondents said that their law school did not expect women to wait until tenure to have [...]]]> A couple of weeks ago, I invited readers to participate in a survey on maternity leave policies at various law schools.  This effort was aimed at provoking open dialogue on the topic rather than providing a scientifically defensible sample or survey of law school practices (a worthy endeavor but not one that this mommyprof can fit into her schedule!).  I received 22 responses to the survey, which could include some overlap from the same law school, so the results are not even close to representative of the 193 ABA-accredited law schools in the U.S.  Nonetheless, I think the findings are interesting.

It was striking that all but one of the respondents said that their law school did not expect women to wait until tenure to have children.  The other respondent was not sure how her school would view pre-tenure childbearing, but worried that a leave might attract stigma from male colleagues.  On the brighter side, one commenter noted that at her school, all of the junior women in relationships had children before tenure in recent years.  While I know from conversations with friends at other law schools that this norm is not universal, it’s nice to see that it may be more widespread than I had expected.

Responses about law school policies on paid maternity leave were much more varied, ranging from sick time only with an expectation that the mother will take the rest of the semester unpaid to a semester paid leave (or light load for a year).  In between were a school that offers six weeks paid leave, others that offer 2-4 months of paid leave, and one that offers a semester leave at half pay.  It was encouraging to see that at least two thirds of the respondents’ schools offer a semester paid leave but troubling to see the cases in which women are forced to choose between their paycheck and a reasonable amount of time at home with their newborn.

So where do these anecdotes lead us?  As mentioned above, it would be a most worthwhile endeavor to survey paid maternity leave practices at all ABA-accredited schools.  Short of that, it may be helpful to open up conversations with peers at other schools to compare practices, and particularly for women on the job market who intend to have children to think about negotiating maternity leave as part of their compensation package.  At the very least, this important issue should be on the radar screen of mommyprofs, deans, and others who seek to recruit and retain a gender-diverse faculty.

Thanks to the folks at Concurring Opinions for giving me the opportunity to share some thoughts on last Term’s decision in Ashcroft v. Iqbal, which dismissed a civil-rights complaint filed against John Ashcroft and Robert Mueller by Arab Muslim men detained in the weeks following 9/11. I realize my comments are glacially slow-in-coming by blogosphere standards (Iqbal came [...]]]> My friend and law school classmate Adam Steinman tempted the civ pro geek in me with his thoughtful and thorough discussion of the recent Iqbal decision, which has caused more excitement in proceduralist circles than I’ve seen in quite some time!  His thoughts should prove most helpful to those of you figuring out how to teach the case in your Civil Procedure class this fall . . .

Thanks to the folks at Concurring Opinions for giving me the opportunity to share some thoughts on last Term’s decision in Ashcroft v. Iqbal, which dismissed a civil-rights complaint filed against John Ashcroft and Robert Mueller by Arab Muslim men detained in the weeks following 9/11. I realize my comments are glacially slow-in-coming by blogosphere standards (Iqbal came down over two whole months ago). But it’s been back in the news lately, including Adam Liptak’s NYT article and Senator Specter’s introduction of the Notice Pleading Restoration Act (which would legislatively overrule Iqbal, although even Iqbal’s critics concede that the bill may have little chance of becoming law).
Iqbal has been of immense interest to litigators and civil-procedure scholars, because it embraces the 2007 decision in Bell Atlantic v. Twombly as reflecting the generally applicable pleading standard in federal court. Twombly had dismissed an antitrust conspiracy claim for lacking sufficient “factual enhancement” to make it “plausible.”  Twombly was quite controversial in its own right, but some had speculated it might be narrowly confined to complex antitrust cases.

The response to Iqbal reveals a sharp divide between those who “are lovin’ Iqbal” (in the words of a recent WSJ headline) and those who are, well, not lovin’ Iqbal. But there has been very little disagreement about how to read Iqbal—everyone seems to agree that Iqbal imposes significant new obstacles on plaintiffs at the pleadings phase and, thereby, discards the liberal, notice-pleading paradigm that most lawyers, judges, and law professors alive today learned in law school. The focus of the debate has been whether this result is proper or desirable. I want to challenge the premise that this is the correct reading of Iqbal. In fact, if read carefully, Iqbal can be fully reconciled with the pre-Twombly view of pleading. (If readers are interested, this argument is explored in more detail in my article “The Pleading Problem“, which is available on SSRN.)

Point 1: Precedent from the pre-Twombly pleading regime is still good law. The Supreme Court has made clear that only it has the power to overrule its decisions, and neither Iqbal nor Twombly overrules core Supreme Court precedents from the notice-pleading era. Twombly did put into “retirement” the statement from Conley v. Gibson that a complaint should be dismissed only when “it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief,” but this language was never taken literally. If it had been,a complaint alleging nothing more than that “the Earth is round” would pass muster, because any number of actionable facts would be consistent with the Earth being round. The more significant cases are more recent decisions—unanimous ones at that—in Swierkiewicz (2002 per Justice Thomas) and Leatherman (1993 per Chief Justice Rehnquist), where the Court explicitly considered and rejected arguments that a complaint must contain additional details or indicate evidence that would support the plaintiff’s allegations. Iqbal and Twombly do not question these cases, which must be presumed to remain good law.

Point 2: Under Iqbal, “plausibility” is not the primary inquiry (or even a necessary one). Many have emphasized the fact that Twombly and Iqbal allow judges to examine a complaint’s “plausibility” based on the judge’s own “judicial experience and common sense.” But a careful look at Iqbal’s reasoning shows that plausibility is a secondary inquiry that a plaintiff might be able to avoid altogether. Here’s the two-part test that Iqbal uses: First, identify allegations that are conclusory, and disregard them for purposes of determining whether the complaint states a claim for relief. Second, determine whether the remaining allegations, accepted as true, plausibly suggest an entitlement to relief. So, as long as an allegation is not conclusory at Iqbal step one, it must be accepted as true. Plausibility only comes into play when a court disregards a crucial allegation as conclusory; then the inquiry becomes whether the remaining, non-conclusory allegations—standing alone—plausibly suggest an entitlement to relief (Iqbal step two).

It follows that when a complaint contains non-conclusory allegations on every element of a claim for relief, the plausibility issue vanishes completely. A complaint that fails to provide non-conclusory allegations on every element might nonetheless pass muster if it contains enough to plausibly suggest an entitlement to relief. But a complaint that does provide non-conclusory allegations on every element of a claim, by definition, exceeds the threshold of plausibly suggesting an entitlement to relief for purposes of Iqbal step two. A court that ignores such a non-conclusory allegation on plausibility grounds would disobey Iqbal step two, because it would be failing to accept a non-conclusory allegation as true.

Point 3: “Conclusory” can be defined to reconcile Iqbal with pre-Twombly authority. We’re not out of the woods yet. We’ve simply shown that, to paraphrase a former lawyer-president, it all depends on what the meaning of the word conclusory is. A critic of Iqbal might worry that the same problems remain—a judge can simply disregard as conclusory any allegation that, say, lacks sufficient “enhancement” to make the allegation “plausible.” But that can’t be what conclusory means, because that definition would conflate Iqbal’s two distinct steps. Moreover, any definition that would disregard an allegation as conclusory on the basis that the complaint lacks other allegations suggesting its truth would flout decisions like Swierkiewicz and Leatherman, not to mention the Federal Rules’ famous Form 11 (f/k/a Form 9), which provides that a complaint would be sufficient simply by alleging “On <Date>, at <Place>, the defendant negligently drove a motor vehicle against the plaintiff.”

But what if we defined conclusory this way: an allegation is conclusory only when it fails to identify the real-world acts or events that entitle the plaintiff to relief from the defendant. This transactional definition of conclusory would not require the complaint to contain other allegations that support the complaint’s characterization of the act or event; nor would it require extensive details about the act or event. Under this definition, Form 11 passes muster because it identifies the liability-generating act or event (being hit by the defendant’s car), even though other aspects of Form 11 (the allegation that the defendant drove “negligently” at the time) might be characterized as conclusory in some sense. The same goes for Swierkiewicz. That complaint identified the act that made the defendant liable (the plaintiff’s firing) even though the characterization of that event (the employer’s discriminatory intent) might be labeled conclusory.

The Iqbal complaint, by contrast, fails under this standard because the allegation of invidious motive appeared in an allegation (paragraph 96) that stated generically that Ashcroft, Muller and nine other defendants “each knew of, condoned, and willfully and maliciously agreed to subject Plaintiffs to [harsh] conditions of confinement as a matter of policy, solely on account of their religion, race, and/or national origin.” This allegation does not identify—not even in broad terms— what Ashcroft and Mueller actually did to discriminatorily subject Iqbal to harsh conditions of confinement; yet their role was crucial as a matter of substantive law, because the Iqbal Court held that Bivens liability required that each defendant, through his own individual actions, violated the Constitution. (This is part of why Swierkiewicz was an easier case to plead—respondeat superior applies to employment-discrimination claims like Swierkiewicz, so the fact that a plaintiff has been fired for invidious reasons would be sufficient to establish a claim against the company.)

The result in a case like Iqbal could be different, however, if the complaint contains more concrete allegations. For example:

“Ashcroft and Mueller ordered that all post-September-11th detainees who are Arab Muslim men be held in highly restrictive conditions of confinement until they were ‘cleared’ by the FBI, and they issued this order because of its adverse effect on this particular group.”

Or perhaps:

“Ashcroft and Mueller adopted a policy that all post-September-11th detainees be held in highly restrictive conditions of confinement until they were ‘cleared’ by the FBI. Ashcroft and Muller anticipated that the vast majority of post-September-11th detainees would be Arab Muslim men, and they adopted this policy because of its adverse effect on this particular group.”

These hypothetical allegations would be sufficient because (unlike paragraph 96) they identify in “short and plain” fashion what Ashcroft and Mueller actually did.

One might respond that it’s just too dangerous to give judges any power to disregard allegations as conclusory, and therefore the better course is to require courts to accept all allegation as true at the pleadings phase. But I doubt this has ever been the rule, even before Twombly and Iqbal. Surely an allegation that “the defendant violated the plaintiff’s legal rights in a way that entitles the plaintiff to relief” would not have been accepted as true. So some line has to be drawn, and the theory outlined here suggests one way to draw it. Even the idea of “notice pleading” requires some understanding of what notice the defendant must receive. (That’s precisely why Charles Clark, the chief drafter of the original Federal Rules, was not a big fan of that phrase. He wrote that notice pleading was “a sound approach so far as it goes; but content must still be given to the word ‘notice.’  It cannot be defined so literally as to mean all the details of the parties’ claims, or else the rule is no advance.

The upshot is that there is more than one way for courts, litigants, and academics to make sense of the controversial decisions in Twombly and Iqbal. The approach proposed here would bring those decisions into much closer alignment with the notice-pleading regime that prevailed prior to Twombly. I’d certainly welcome comments or questions (adam.steinman@uc.edu) if any reader has the time or the inclination.

My first concern with the study is that the twelve variables that SIGI has chosen to measure social institutions and their [...]]]> I’m normally a fan of the statistical reports produced by the OECD, so was surprised to find myself in disagreement with the methodology of their recently-created Social Institutions and Gender Index (SIGI). The idea behind SIGI is a good one — to get at the root of gender discrimination by examining traditions and social norms that impede women’s empowerment. To this end, SIGI assesses twelve variables in 102 non-OECD countries and then ranks these countries based on their “performance in social institutions.” The selection and evaluation problems with their study highlight the difficulty of empirically measuring and ranking intangible phenomena such as social norms.

My first concern with the study is that the twelve variables that SIGI has chosen to measure social institutions and their contributions to gender inequality appear to suffer from selection bias. Their model does include variables that impact women’s advancement globally, such as access to land and property and inheritance laws. However, given the relatively small number of variables examined, it was surprising to see the inclusion of discriminatory traditions and social norms practiced only in a limited number of regions, such as female genital mutilation, restrictions on freedom of dress and “missing women” (gender-selected abortion or infanticide) as stand-alone variables. To be sure, these forms of hidden discrimination are of concern, but if it’s to include traditions and social norms that impede women’s progress only in certain regions, the study should be as comprehensive as possible, including a broad range of regionally specific discriminatory norms (such as very limited access to contraception and abortion in much of Latin America). Alternatively, the study could be limited to variables that exist in nearly every country studied, with regionally specific norms as a subset but not a stand-alone variable (examining FGM as one manifestation of violence against women, for example). The study’s current approach inappropriately weights these variables and thus leads to odd results in the rankings — India, for example, is ranked 96 of 102 countries, just below Iran. While there’s no disputing that India has its fair share of hidden forms of gender discrimination, a claim that Indian women face more discriminatory norms than Iranian women is difficult to defend.
The study also appears to contain evaluation problems in that it relies on the law on the books to measure social norms without closely examining whether this law is applied in practice. So, for example, I was surprised to see El Salvador ranked number 8, with a mention of violence against women as a “serious problem” but nonetheless receiving an extremely high score for physical integrity. In contrast, the U.S. State Department’s 2008 Human Rights Report denotes violence against women as one of the top human rights problems in El Salvador, with over 6000 reports of domestic violence and only 12 prosecutions and 4 convictions last year. Again, it’s hard to take seriously an index that ranks highly a country with social norms that widely condone violence against women.
While the authors of the study are correct in their claims that these traditions and social norms often impede progress towards equality for women, it is extremely hard to quantify such intangible phenomena. Social norms and traditions that impede women’s empowerment take different forms throughout the world, and do not lend themselves easily to comparative assessment. More importantly, I’m not sure where the value lies in “ranking” hidden forms of gender discrimination. How should these rankings be used? To determine which countries should be prioritized in efforts to ameliorate gender discriminatory norms? As a shaming sanction against those at the bottom of the list? While it’s undoubtedly important to examine and elucidate these norms in order to redress them, it seems less worthwhile to measure and sort them, as if eliminating gender inequality were simply a numbers game. And as SIGI’s pitfalls illustrate, such a study should be performed by researchers familiar with the societies and cultures in question and should not rely on laws on the books as an adequate proxy for social norms. Moreover, any such study should rigorously select and weight quantitative or qualitative measures of discriminatory norms to avoid culturally biased and unreliable results.

Cross-posted on IntLawGrrls.

The discourse of breast-feeding has long been about everything but the mother; women who wanted to breast-feed were once told that they shouldn’t do so because formula was better for their child, now mothers are told that they must breast-feed because of all of the benefits for their child — higher IQ, [...]]]> Sarah Waldeck’s recent post on the consequentialist rationale for publicizing breast-feeding’s benefits for mothers was right on the mark; breast-feeding can be challenging in the best of circumstances, so those who believe that “breast is best” should appeal to women’s self-interest rather than or as well as their noble sense of self-sacrifice.  In addition to the argument she lays out, there’s also expressivist value in changing the way we speak about, and thus perceive, breast-feeding. 

The discourse of breast-feeding has long been about everything but the mother; women who wanted to breast-feed were once told that they shouldn’t do so because formula was better for their child, now mothers are told that they must breast-feed because of all of the benefits for their child — higher IQ, less risk of obesity, diabetes, ear infections — you name it.  Inundated by these questionable claims during my pre-natal classes, I wondered how studies could possibly control for factors such as the socio-economic background of the mother.  It turns out they can’t, as Hanna Rosin explained in The Atlantic last month (in an article Sarah posted on here).  As Toto pulls open the curtain on its lack of empirical grounding, the breastfeeding orthodoxy is revealed as a stunningly paternalistic judgment on motherhood and women’s agency.

Think about it this way: say you’re friends with a father responsible for preparing his children’s dinner four nights a week.  Returning home at 6pm, exhausted from work, he feeds his kids a couple of hot dogs at least twice a week, as they’re incredibly easy to prepare and the kids love them.  Would you find it appropriate to lecture him on hot dogs’ lack of nutritional value and tell him that he really should make the effort to prepare a healthier meal for his children?  What if you knew, as the American Academy of Pediatrics and the US Food and Drug Administration note, that hot dogs pose a serious but as yet unquantified choking risk for small children?  What if you were aware of preliminary medical research findings that children who eat more than 12 hot dogs a month have nine times the normal risk of leukemia?  I’ll hazard a guess that most people would leave the decision whether to feed his children hot dogs in the hands of the father; while his childrens’ pediatrician may warn him of the potential hazards of hot dogs, I don’t know that he would be stigmatized as an inadequate parent for his choices.  While there is of course a point at which parental autonomy should be limited to protect the child (when, for example, a child’s diet leads to malnutrition), there’s a large grey zone in which parents are and should be allowed to undertake their own cost-benefit analysis between their child’s interest and their interests and act accordingly.

Not so with breastfeeding; “good” mothers are expected to subjugate entirely their own interests in order to provide what’s “best” for their child.  Even for those of us with highly flexible professional careers, this is a serious demand on time and energy; as Rosin notes, what about waitresses or truck drivers?  Are they forever doomed to being “bad mothers” given the near impossibility of maintaining milk supply while meeting the nonstop work ethic required in their jobs?  I like Sarah’s suggested reformulation of breast-feeding mantras, then, to focus on mothers as autonomous beings entitled to balance their interests with those of their child.  One can be a “good” mother in many ways; how we choose to feed our children should be simply that: a choice, without judgment from others.

In one example, last fall, [...]]]> The teen pastime of “sexting” has taken a serious tangle with the law of late in our fair state of Pennsylvania. For those who haven’t heard of the phenomenon, “sexting” is the practice of sending nude or semi-nude pictures of oneself (or of one’s closest friends or enemies) via cell phone to a love interest, a friend, or as many classmates as possible. A recent study by the National Campaign to Prevent Teen and Unplanned Pregnancy found that 20% of teens surveyed had electronically sent or posted online nude or semi-nude photos or videos of themselves — so this appears to be a sizeable and quite serious problem. Even worse is the jaw-dropping response from local law enforcement.

In one example, last fall, school officials from the Tunkhannock School District in Wyoming County, Pennsylvania, seized several cell phones from high school students. The officials searched the phones and discovered that male students had been using them to trade photos of semi-nude and nude female students. The local district attorney threatened to charge three girls — two photographed in white bras and one with a towel covering her from the waist down — with child pornography or open lewdness unless they agreed to participate in probation in the form of a five-week re-education program. He did not threaten to bring charges against any of the boys trading photographs on their cell phones. The concerns raised by this approach abound: privacy, free speech, proportional punishment (if found guilty of child pornography, the teens would be subject to Megan’s Laws disclosure requirements and other sex offender laws), and, of most interest to yours truly, the gendered nature of this particular bit of legal discourse.

Posing for or simply allowing semi-nude photos to be taken of oneself seems to me to be typical teenage risk-taking behavior — standard slumber party fare. The difference in today’s world, of course, is the technology that can spread the image virally and have a real impact on a teenager’s reputation and future. Rather than recognizing the problem as one of immaturity and perhaps naivete, the district attorney’s heavy-handed approach seeks to brand these girls as immoral miscreants while letting the boys responsible for spreading the images do so with impunity. The message, then, is that girls must be chaste at all times or else they will face serious repercussions, but “boys will be boys.” Moreover, this “blame the victim” mentality assumes that the girls are the sole cause of a rather complex problem. Perhaps that’s what the district attorney plans to teach at his re-education program in which those charged are to “gain an understanding of what it means to be a girl in today’s society.” While the problem of teen sexting should be of great concern to all parents, threatening those photographed with child pornography charges should scare the pants off all of us. Let’s just hope nobody has a digital camera at the ready.

First, for the admin law types, this case continues and amplifies recent tussles in the immigration field over who has the [...]]]> This week, the Supreme Court took the rare step of deciding an asylum case, Negusie v. Holder, which examines the availability of a duress exception to the persecutor bar. The Court has decided very few asylum cases in its history, and when it does so, the result is often messy. The Negusie decision is no exception– while Justice Kennedy commands a majority of six, the proliferation of concurrences and dissents doesn’t inspire confidence in the unity of the court. It does, however, make for a fun read for immigration law junkies as well as for aficionados of administrative law and moral philosophers.

First, for the admin law types, this case continues and amplifies recent tussles in the immigration field over who has the authority to interpret the Immigration and Nationality Act — the federal courts or the Board of Immigration Appeals (the administrative entity charged with reviewing immigration court decisions and establishing national uniformity in immigration law). Kennedy’s majority opinion gives some deference to the administrative agency (deference that, in my opinion, is misplaced, given the dysfunctional nature of the Board, which I’ve discussed in more detail here), finding that while the Board misapplied precedent in interpreting the statute to preclude a duress exception to the persecutor bar, it should be allowed to reinterpret the statute free from this error. But as Scalia notes in his concurrence, the tone of the opinion indicates that Kennedy thinks the Board should come down in favor of a duress exception. Scalia disagrees with this approach, arguing that the Board “deserve[s] to be told clearly whether we are serious about allowing them to exercise . . . discretion, or are rather firing a warning shot across the bow.”

Stevens and Breyer, on the other hand, think the warning shot isn’t clear enough, finding that the question of whether the duress exception exists is one for the courts, and that the role of the administrative agency should be to determine how to apply the standard to be used in deciding whether participation in persecution was voluntary or coerced. Thomas doesn’t explicitly address whether the authority to interpret this provision of the statute should lie with the courts or the administrative agency; he thinks that the Board’s underlying decision was correct because the language of the statute doesn’t contain a duress exception.

For the moral philosophers among us, the duress exception to the persecutor bar presents questions ripe for study. Immigrants within the borders of the United States who fear persecution in their homeland on account of one of five protected grounds are eligible for asylum, which is granted as a matter of discretion. The statute bars from asylum protection those who have “ordered, incited, or participated in the” persecution of others on account of one of the five grounds — thus a Hutu who had persecuted Tutsis during the genocide in Rwanda and then suffered persecution under the Kagame regime would not be eligible for asylum in the United States, and Mr. Negusie, who was tortured and then forced to work as a prison guard by the Eritrean government, may be excluded from asylum for acts he performed under coercion.

Is the reason for the persecutor bar, as Negusie argues, “because ‘persecution” presumes moral blameworthiness”? More importantly, does it then follow that those who persecute under duress are not culpable? Can coercion ever be an excuse for intentional killing? Or, as Scalia argues, is the persecutor bar simply a measure of desirability? Can we assume that those who persecuted others would be “relatively undesirable” as immigrants? Should this matter in the context of asylum, when the individual’s life may hang in the balance? Is it morally appropriate to lay down a bright line rule that excludes all those involved in persecution from asylum status, rather than examining individual situations on a case-by-case basis?

Difficult questions, all, and I’m afraid I don’t share the Supreme Court’s confidence in the Board of Immigration Appeals’ ability to answer them impartially, thoughtfully and fairly. Mr. Negusie will just have to wait and see.

There’s much of interest in this report for those participating in accountability efforts. First, the report underscores the need for a serious public education effort around the tribunal. Of the respondents who did not live under the Khmer Rouge regime, 81% described their knowledge of that period [...]]]> The Human Rights Center at UC Berkeley released this month “a population-based survey on attitudes about social reconciliation and the Extraordinary Chambers in the Courts of Cambodia” entitled So We Will Never Forget. Of the several surveys of the Cambodian public on accountability for the Khmer Rouge that have been completed in the past decade (including one by yours truly), this is the most scientifically planned and executed, with rigorous methodology and a wide sampling of the Cambodian population.

There’s much of interest in this report for those participating in accountability efforts. First, the report underscores the need for a serious public education effort around the tribunal. Of the respondents who did not live under the Khmer Rouge regime, 81% described their knowledge of that period as poor or very poor. Given that 68% of Cambodia’s population has been born since the Khmer Rouge left power, that’s a very concerning statistic. Moreover, 39% of those surveyed had no knowledge of the Extraordinary Chambers and 46% had only limited knowledge. The court and non-governmental organizations have a great deal of headway to make in educating the Cambodian public about the ECCC and the Khmer Rouge era.

Second, the survey results question the appropriateness of trials as the sole accountability mechanism in Cambodia. While 86% of those surveyed believed that it was necessary to establish the truth about what happened under the Khmer Rouge regime, 45% of respondents said they didn’t know which mechanisms would be appropriate to do so, and only 14% recommended trials. On the other hand, 9 out of 10 respondents believed it important to hold accountable those responsible for the atrocities of the Khmer Rouge regime, and almost 50% said that perpetrators should be put on trial. This disparity may reflect the difficulty of designing survey questions, particularly in cross-cultural contexts, that are not leading. On the other hand, it may illustrate a perceived distinction between truth and accountability, in which case it would have been useful to know which goal the respondents valued more given limited resources. Were truth the priority, a truth commission or other mechanism that can paint a broader picture of history might have been a better choice than trials.

Finally, the report queries the priorities of the international community and the Cambodian government in allocating so many resources (currently an estimated $135.4 million through the end of 2010) to the Extraordinary Chambers rather than to social reconstruction. Only 1% of those surveyed listed justice as a priority while 83% listed jobs as a priority. Interestingly, the importance of justice grew as survey respondents were focused on the ECCC. Only 76% of Cambodians said it was more important to focus on problems faced in their daily lives than to address the crimes of the Khmer Rouge, and just 53% would rather spend the money on something other than the ECCC. In any case, that’s still a majority of respondents who think the funding for the Extraordinary Chambers would have been better spent elsewhere.

Despite its possible flaws, this quantitative study is of great value in assessing and directing transitional justice mechanisms in Cambodia. If transitional justice is to be responsive to the needs of local populations, rather than a top-down mandate from the international community, such studies should be undertaken as a matter of course, preferably before selecting and designing accountability mechanisms and allocating limited resources.

Cross-posted on IntLawGrrls.

because humanitarian interventions tend to increase the chance that rebel or victim group leaders are going to achieve their preferred political objectives, such leaders might have an incentive to engage in the kinds of provocative [...]]]> This week, Peter Spiro and I hosted Jide Nzelibe at Temple’s International Law Colloquium. Jide presented his work-in-progress, Courting Genocide: The Unintended Effects of Humanitarian Intervention, on which Kristen Boon provided commentary. While I had several smaller quibbles and a few larger criticisms of the paper, it moves the scholarship on humanitarian intervention a step forward, as Kristen noted, by examining the motivations of all of the actors involved and suggesting that the effects of humanitarian intervention may not always be benign. Jide’s basic thesis is as follows:

because humanitarian interventions tend to increase the chance that rebel or victim group leaders are going to achieve their preferred political objectives, such leaders might have an incentive to engage in the kinds of provocative actions that make atrocities against their followers more likely in the first place

Ambitious in scope and provocative in intent, the paper’s descriptive portion is compelling in generalities but more troubling in specifics. Jide’s point that “[t]he threat of humanitarian intervention influence[s] the calculus of both rebel leaders and perpetrators in complex and unpredictable ways” is powerful; the idea that humanitarian intervention influences rebels to subject their followers to the risks of genocidal violence is much more of a stretch. It seems more likely that rebel groups have imperfect information about both the risk of genocide and the chance of humanitarian intervention, which may surely influence their actions, but in perhaps less predictable and nefarious ways.

As Jide himself concedes, the prescriptive portion of the paper presents solutions that may be difficult to implement in the real world. He suggests two options for addressing rebel leaders who engaged in provocative behavior against dominant groups who then perpetrated atrocities against their kin: first, applying a comparative fault framework to reduce economic and political benefits to these leaders, and second, absolving perpetrators from international criminal law sanctions through the defense of provocation. Both approaches troubled me most for their paternalism; the first because it’s unclear who should decide and how they should decide when behavior has been sufficiently provocative to warrant a reduction in benefits, and the second because it’s simply too close to the “she asked for it” defense. In my mind, provocation is no justification for the types of atrocities Jide discusses in his paper. A better normative outcome might instead be more even-handed prosecution of all players who commit atrocities, not just those responsible for the worst atrocities. In any case, despite these quibbles, the paper’s worth a read for its thought-provoking approach to a timely and important issue.

Cross-posted on IntLawGrrls.