Concurring Opinions » International & Comparative Law

The War is Over But What Impact Will the Restatement of Employment Law Have?

Michael Zimmer — Thu, 12 Nov 2009 04:09:31 +0000

When, a number of years ago, the Council and the Director of the American Law Institute announced that the Institute was undertaking a project in the area of labor and employment law, it followed its long tradition of deciding the project’s subject, its type and who would be the Reporters without input from the membership at large. That the topic was employment law was not a surprise. After all, Lance Liebman, the ALI’s Director, is a well known teacher and scholar of employment law. The nature of the project, a Restatement, was, however, somewhat of a surprise. Restatement projects look to the common law in a particular area. A problem with a Restatement of the common law of employment is that the common law plays a small role in a large, ungainly, some would say, disorganized jumble of state and federal laws, statutes and common law covering a wide range of issues that bear on employment. There is little apparent coherence to it. So, in the admittedly small world of labor and employment academics, it was no surprise that the idea of a Restatement provoked widespread protest. Some feared that a Restatement of Employment Law would “cement” in place law that was woefully inadequate for present much less future times. For some, that fear was exacerbated by the choice of the Reporters and the initial Advisory Group. I liked the idea of an ALI project but, given the mishmash that is labor and employment law, hoped for a Principles project to develop a policy basis that could be used to develop a coherent body of labor and employment law.

In face of the protests, the project moved slowly at first as some Reporters left and others joined the project. Once three chapters had been completed and approved by the ALI Council, the opposition got organized to try to stop those chapters, and indeed the whole project, from proceeding any further. Many of those opposed undertook the unusual move toorganize and hold a well- attended meeting at Hastings to present and to develop critiques that argued that the Restatement project should be abandoned. The work of 18 employment law academics was presented at the meeting. The results of that meeting and the critiques prepared for it were sent to all ALI members for their consideration before last May’s annual meeting that had the first three chapters on the agenda for adoption. The critiques were also published in a special issue, volume 13, issue #1 of the Employment Rights and Employment Policy Journal, http://www.kentlaw.edu/ilw/erepj/abstracts/v13n1/index.html.

Given the heated nature the whole issue had become, it should be no surprise that the dispute became personal. The lines were drawn with the ALI on one side and the Labor Law Group on the other. While the debate at the ALI meeting this past May was heated, the membership, as it generally does, accepted the recommendation of the Council and approved the first three chapters more or less intact.

That approval seemed to help turn the corner on the project and the opposition to it. Perhaps resigned to the project’s continuation, many of the opponents have now decided to pitch in to help make it as good as it can be. On September 25 and 26, the Fourth Annual Colloquium on Current Scholarship in Labor and Employment Law, held this year at Seton Hall law school, had two plenary panels dealing with two new chapters of the project that were still early in development. One dealt with torts – defamation, intentional interference with contract covered by Chapter 6 along with discussion whether torts such as false imprisonment should be among the torts covered by the Restatement. The other covered Chapter 7’s treatment of employee privacy. The Chief Reporter, Sam Estreicher from NYU, and the two Reporters dealing with the two chapters, Michael Harper from BU and Matt Brodie from St. Louis U., made presentations followed by interesting and constructive responses from a number of law professors who have done work on these topics. Having moderated one of the panels and observed the other, I was surprised at how low key it all turned out to be. In fact, there was no heat at all. At the end of the second panel, Ken Dau-Schmidt from Indiana Bloomington, who had originally helped organize the Hastings conference, announced that he had joined the ALI Advisory Group for the project and that he would be happy in that role to be a conduit for suggestions for improvement made by any interested members of the labor and employment law academic community. Thus, a truce was called, the war is over.

Once the Restatement is completed and approved, the question will be its impact on the common law. Restatements on a number of areas of the common law – torts and contracts, for example – have had major influences on the development in those particular areas of law. The ALI prefers Restatements to other types of projects precisely because their influence is made obvious by the citations common law courts make to them. Thus, many of those opposed to the Restatement were afraid the Restatement would have considerable effect on the common law. They feared the Restatement would have the net effect of retarding the development of employment law. Instead of leading toward better law, the existing, but inadequate, employment law reflected in the Restatement would be authority to keep that law in place. Only time will tell what the final Restatement will look like and, of course, its influence on the development of the common law is not at all clear. It is likely that, at least as to the first three chapters, the Restatement will be read together with the extensive critiques published as a result of the Hastings meeting. Every party pointing to the Restatement as secondary authority will get back arguments based on these published critiques. Reading the Restatement together with the critiques will present a broader view of the possibilities for development in the common law of employment than looking at either alone. So, ironically, the first three chapters may have a positive influence in part because of the protest. Given the truce, however, the chapters yet to be developed may lack the kind of call-and-response that those first three have benefitted from. These later chapters may, however, be bolstered from within if those who opposed the Restatement do pitch in to make it as good as it can be and if that input influences the final product.

The deeper question is whether, even with broader input, the Restatement, as developed so far, will be seen as all that useful. Following in a long tradition of Restatements of American common law, this Restatement has little reference to the labor and employment laws in other countries. That seems to continue the generally held though unstated and dangerous notion that U.S. law is the way to deal with problems with the small variations among the states reflecting the possible range of solutions. American employment law is exceptional. Juxtaposing it with the quite different approaches other countries have taken to the same problems would inevitably spark a debate as to what policies do, and what policies should, animate our labor and employment law. Because of that unexamined but parochial assumption that U.S. law is the only way to go, the Restatement has little need and makes no effort to theorize American common law – the common law is what it is and that is that. Policy discussion is not needed because the formal rules are relatively clear. I think, however, that the genie of comparative law has come out of the bottle because of an increasingly globalized economy. Comparative law makes it much easier to articulate the policy underpinnings of any particular area of the law. This Restatement, and all subsequent ones, will need to articulate policy support for the positions taken as to what the common law is and what it should be. The absence of development of the policy underpinnings of the common law now weakens the Restatement enormously when there is so much more known about alternative approaches developed in different legal cultures around the world.

While the Restatement project continues to roll on, there is a recent effort to attempt to theorize U.S. labor and employment law. Steve Befort, a University of Minnesota law professor, and John Budd, a University of Minnesota management professor, recently published “Invisible Hands, Invisible Objectives: Bringing Workplace Law & Public Policy into Focus (2009). They develop what they describe as a triad of the fundamental objectives of American workplace law:

“Efficiency: effective, profit-maximizing use of labor and other scarce resources;

Equity: fairness in the distribution of economic rewards, the administration of employment policies, and the provision of employee security;

Voice: meaningful participation in workplace decision-making.”

While the first objective is not, in our culture, disputed, the other two certainly are. The laissez-faire assumptions that underpin U.S. labor and employment law do focus on the first objective of efficiency. By the same token, that same philosophy leaves the free market to develop whatever equity and voice inputs that people are willing and able to pay for: “As efficiency-related concerns . . . have come to dominate public discourse, the idea of regulating markets, corporations, and the employment relationship to achieve other goals besides efficiency – namely, various elements of equity or voice – have come to be viewed very negatively.” Based on their careful development of why equity and voice are necessary for a healthy economy with a productive workforce, Befort and Budd call for “explicit discourse on how to work out a balance in today’s employment relationship using the framework [of all three policy objectives].” That discussion would, of course, be highly contested but a result of that discussion may be to narrow the range of differences and to come to some greater degree of understanding and consensus about the how to develop a coherent structure of labor and employment law to best serve the interests of our country now and in the future.

I always thought that the ALI would be an excellent forum for that policy discussion since its membership includes prominent practitioners, jurists and academics. But, the format of a Restatement project does not easily lead to deep policy discussion. Even if it did, the focus on the common law is but one small part of all that there is that we call labor and employment law. With the Restatement in the works, it is probably too late for the ALI to now undertake a broader Principles project focusing on the development of sound employment policies: The ALI put the cart before the horse. Another forum is necessary. Will legal academics organize that forum? I look forward to the initial call for papers.

Shame on the Brits!

Nate Oman — Thu, 22 Oct 2009 14:50:33 +0000

By temperament, I am not a particularly passionate person. Every so often, however, the world throws up an event of such mindless horror that even phlegmatic me is roused to ire. Chris Lund points out such a horror in this post over at Prawfs. All I can say is, “What the hell are their Lordships thinking over at the new Supreme Court of the United Kingdom?” Shame! Shame on you!

I write, of course, of the mindless and wicked decision of the Her Majesty’s justices to dispense with both wigs and scarlet and ermine. Rather than sitting in judicial majesty, clothed in the tradition and continuity of the common law, they are going to jumped up in newly designed robes shorn of scarlet and fur. And no wigs. (This BBC report shows the justices in their new robes, which at least have the decency to include healthy dollops of gold braid.) Why don’t they just throw out the concept of precedent, adopt the Code Napoleon, and be done with it. Nor, alas, is the rot confined to the top of the judiciary. Through out the UK, it would seem, judicial horse hair and scarlet are one the wane.

American judges and barristers lost their wigs thanks to the wicked influence of Thomas Jefferson. The ~~hypocrite~~ sage of Monticello, of course, was an awful Francophile at a time when being a Francophile meant defending the guillotine. For him, wigs and scarlet were English (and therefore evil), medieval (and therefore evil), and associated with the common law (and therefore evil). In the new Empire of Liberty that he envisioned for America they had no place. I suspect that his hope was that the common law would be out as well, to be replaced by some hideously rationalized Enlightenment code.

In the wake of the election of 1800, Jeffersonianism was ascendant and any hope for proper judicial and legal regalia in the United States died. Blackstone, Coke, and Marshall proved powerful enough to preserve the common law, even if we lost forever is pageantry. Rather Jefferson and his minions replaced it with a spare classicism — Roman looking court houses, plain “republican” robes, etc. — whose aesthetic cannot help but strike a jarring note against the law that it purports to represent. I suppose that as between losing the common law and losing its trappings, America managed to opt for the lesser of too evils. Still, I can’t help but feel the loss.

Why, in the name of all that is holy, however, should the UK Supreme Court abandon them. I realize, of course, that in an enlightened post-modern age a certain amount of national self-loathing is de rigueur. Penance for the sins of empire and all that. Fair enough. But surely at the judicial apex of the birthplace of the common law, one may take a stand for they symbols of tradition and continuity without embarrassment. The press reports cited by Chris suggest that the motivation for this particular judicial outrage was the need to “modernize” the English law (and given that Scotland enjoys its own legal tradition with its own forms of fancy dress, this is ultimately an English issue). This is a silly justification. There is nothing that prevents a barrister with gown and wig from presenting perfectly cogent and modern arguments about the proper treatment of credit derivatives or bank capitalization regulations. Likewise, there is nothing that keeps a judge clad in scarlet and ermine from protecting the rights of oppressed minorities. Indeed, such decisions and arguments gain power and legitimacy from nesting themselves within a physical pageant that celebrates its connection and continuity with the past. A rapidly changing society that tosses an ultimately costless method of retaining some emotive and symbolic stability, in my opinion, makes a foolish decision.

Shame on the Brits!

Article on Free Speech and Terrorism

Gerard Magliocca — Tue, 11 Aug 2009 21:34:15 +0000

I want to draw your attention to a paper by my colleague Shawn Boyne that examines the tension between free speech values and counterterrorism efforts. Shawn is doing some terrific work on comparative criminal law issues. Here is the Abstract:

Since the 9/11 attacks in 2001, the United States and many European states have sought ways to disrupt the radicalization process that leads individuals to join the call to Islamic jihad. This strategy has included attempts to prosecute individuals who post or help to circulate calls to jihad that appear on the internet. While this speech is unpopular, it is an open question whether the speech, standing alone, incites violence. More importantly, these prosecutions may both chill speech and open the door to wider governmental efforts to regulate unpopular speech. To explore the tension between security and civil liberties triggered by such strategies, I analyze three recent criminal cases in Germany, the United Kingdom, and the United States. I examine the prosecution strategies and the legal hurdles that prosecutors faced in securing convictions. I show that, in an effort to surmount the legal problems inherent in prosecuting these cases, prosecutors have broadly branded the defendants as terrorists and evil-doers. The broader impact of these strategies, risks shaking a core element of democratic governance.

BRIGHT IDEAS: Susan Brewer on Why America Fights: Patriotism and War Propaganda from the Philippines to Iraq

Deven Desai — Mon, 10 Aug 2009 21:31:49 +0000

Today’s Bright Ideas post comes from Professor Susan Brewer. Professor Brewer teaches history at the University of Wisconsin-Stevens Point. She is the author of To Win the Peace: British Propaganda in the United States during World War II. Today she shares how she the ideas behind and how she came to write her latest book, Why America Fights: Patriotism and War Propaganda from the Philippines to Iraq. As someone who loves history and studies of the way media is used to shape agendas, this books looks like a winner. But I’ll let Professor Brewer explain more on that.

PROFESSOR SUSAN BREWER

Why America Fights: Patriotism and War Propaganda from the Philippines to Iraq

Why America Fights explores the packaging and sale of war aims by the U.S. government to the American people over the past century. It analyzes propaganda in six wars—the Philippine War, World War I, World War II, the Korean War, the Vietnam War, and the Iraq War—intended to rally public support by showing Americans that they fight for democracy, freedom, security, and economic opportunity. Such messages from “to make the world safe for democracy” to “protect the American way of life,” assure the public that their ideals and interests are one and the same.

I had the idea for this project while I was working on my first book, To Win the Peace: British Propaganda in the United States during World War II (1997). It examines the British government’s careful efforts to construct a lasting “special relationship” with the United States when it recognized that only its wealthy ally had the power to help the depleted British Empire through postwar recovery. Propagandists analyzed U.S. political culture to determine the best way to win American hearts and minds. For example, to overcome what they called the “ancient grudge” held by Americans against the British Empire, British officials sought to link the empire with America’s epic frontier past so popular in films and novels. They called their theme “white men in tough places.” Although officials acknowledged the racist nature of such a message, they thought it would encourage white Americans to identify with the colonizer rather than the colonized. Besides they knew that most African Americans were not allowed to vote. Intrigued by the way in which British policymakers defined their interests and constructed appealing messages to promote them to the American public, I wondered about U.S. government efforts to do the same.

My research also was influenced by the George H. W. Bush administration’s presentation of the Persian Gulf War of 1991. I observed how the administration used explicit and implicit references to past wars to justify the current one: the comparison of Iraqi leader Saddam Hussein to Adolf Hitler; the story of the invading Iraqi troops pulling the plugs on incubators holding Kuwaiti babies, later discredited, which recalled World War I propaganda showing the invading Germans bayoneting the babies of Belgium, also later discredited; and the steady assurance that the Persian Gulf War would not be another Vietnam. These themes, I thought, had a lot to do with popular history and culture and not so much to do with U.S. foreign policy in the Middle East. I wanted to investigate just what government officials have chosen to tell and not to tell when convincing the American people to support war.

To see how various administrations defined their war aims and then how they decided to present them to the public, I conducted research at the National Archives, the Library of Congress, and the presidential libraries. I analyzed the resulting messages as delivered through speeches, posters, movies, radio shows, television appearances, magazine ads, and news stories. What I found was that to promote war aims dedicated to defeating the enemy and expanding U.S. power, propaganda portrayed Americans as liberators, protecting civilization and advancing progress. “To make the world a decent place to live in,” declared a World War I poster. In this case, as in others, the world failed to live up to its projected image, leaving Americans feeling disillusioned about their intervention in the Great War. One of the goals of official propaganda in World War II would be to restore public confidence in America’s global mission and build a consensus in favor of ongoing U.S. commitments overseas.

From war to war, propaganda revived the portrayal of the United States as a just and benevolent nation using its power to create a better world. In doing so, it typically focused attention on American cultural beliefs rather than global realities, presenting idealized versions of the United States and its allies while dehumanizing the enemy. It sought to win over the American people by appealing to what they wanted to believe about themselves. I hope that readers of Why America Fights will consider why these official constructions of wartime national identity remain so compelling.

New Empirical Work on International Criminal Law

Jenia Turner — Sun, 26 Jul 2009 14:49:45 +0000

Máximo Langer and Joseph W. Doherty at UCLA have just posted Managerial Judging, Court’s Limited Information and Parties’ Resistance: An Empirical Assessment of Why the Reforms to Expedite Procedure of the International Criminal Tribunal for the Former Yugoslavia Did Not Work. It’s an excellent piece and a rare example of empirical work in international criminal law. Its findings show the valuable contributions that empirical studies could make to the field.

Langer and Doherty examine whether procedural reforms at the International Criminal Tribunal for the former Yugoslavia (ICTY), which were introduced to expedite the tribunal’s proceedings, were in fact successful. The study finds that these so-called “managerial judging” reforms-e.g., introducing pretrial judges, mandating pretrial conferences, asking the parties to exchange information about their cases earlier in the process, encouraging them to reach agreements on facts and legal issues, and reducing the number of witnesses-failed to accomplish their intended purposes. In fact, many of these reforms lengthened the proceedings.

The study controlled for a number of variables that could explain the result (e.g., specific case characteristics, court capacity, and guilty pleas). So why might the reforms have failed? The main reason seems to be that the new managerial tools were not used frequently enough. Moreover, the tools that were used added procedural steps that took up time, without reducing other procedures to make up for the added time.

According to Langer and Doherty, the managerial tools were not frequently used for three principal reasons: 1) under a largely adversarial system such as the one at the ICTY, judges have limited information about the case at the time they have to make decisions to streamline the proceedings; accordingly, they are reluctant to use managerial tools to shorten the proceedings because such tools may also lead to inaccurate or unfair outcomes; 2) the ICTY has not attempted to train, monitor, or incentivize judges to implement the managerial reforms consistently; 3) both prosecutors and defense attorneys have little incentive to expedite proceedings and prefer instead to maintain control over their cases.

The authors conclude by arguing that their findings should not be taken as disheartening. They point out that, in international criminal cases, managerial judging may often interfere with the goal of reaching accurate and fair outcomes. ICTY judges were therefore correct to be cautious in implementing the managerial procedural reforms.

There will soon be another ground for the authors to test their conclusions. At the permanent International Criminal Court, which follows a more inquisitorial model, judges would receive the evidence disclosed by the parties early during the pretrial stage. This may minimize one of the major problems that Langer and Doherty found with the ICTY procedural reforms-that judges lacked sufficient information about the case when deciding whether and how much to streamline the proceedings. Because ICC judges would have a better grasp of the case and more extensive information early in the process, they may be better able than their ICTY counterparts to expedite proceeding without interfering with accuracy and fairness. As the ICC begins trying more cases, Langer and Doherty-and others interested in the empirical study of international criminal procedure-should have extensive opportunities for further analysis.

German Bundestag Passes Plea Bargaining Law

Jenia Turner — Thu, 16 Jul 2009 16:30:48 +0000

Germany was once known as a “land without plea bargaining.” Those days are now long gone.

On May 28, the German Bundestag passed a law amending the German Code of Criminal Procedure to regulate plea bargaining. The legislation ratifies a practice that developed informally more than two decades ago. As bargaining became more common in the late 1980s and 1990s, courts intervened to set broad requirements for the practice. The recent legislation largely codifies these requirements. But there are also some important departures and other provisions that are interesting from a comparative perspective.

First, the law gives the court a central role in the negotiations. This is in stark contrast to the rules in most U.S. jurisdictions, under which judges are strictly prohibited from participating in plea negotiations. Under the new German legislation, judges may initiate negotiations and may indicate the maximum and minimum sentence they would impose as part of the bargain. This requirement has the advantage of involving a neutral party in the bargaining process. At the same time, it raises concerns about judicial bias and even coercion, since the same judges who are involved in the negotiations will be determining the sentence. And if the bargain falls apart, the same judges will be deciding the guilt or innocence of the defendant.

The new law also settles an issue that was contested in the courts for some time-the validity of bargained-for waivers of appeal rights. The legislation prohibits any bargains that include a waiver of the right to appeal the verdict or the sentence. The prohibition on negotiated appeals waivers is a feature that U.S. courts and legislators would be well-advised to consider. Although negotiated appeals waivers are undoubtedly efficient, they also insulate from review a practice that is already criticized for its lack of transparency and its potential coerciveness.

The German legislation further provides that a court may reject a bargain it helped negotiate “when legally or factually significant circumstances were overlooked or presented themselves for the first time, and the court concludes for this reason that the predicted sentence is no longer proportionate to guilt. The court may also reject the agreement when further conduct by the accused contradicts the basis on which the court made its sentence prediction.” This provision aims to reconcile plea bargaining with two longstanding principles of German criminal procedure: 1) that the court has an independent duty to investigate the truth in the case; and 2) that the court must impose a sentence proportionate to guilt. But as German scholars like Thomas Weigend have suggested, the provision gives a surprising amount of leeway to judges in changing their minds about bargains they have helped negotiate. The defendant would then have no choice but to appear for trial before the same judges who have just rejected the bargain.

Another noteworthy element of the new legislation is its requirement that, if the court rejects a bargain, the defendant’s confession may not be used as evidence against him in subsequent proceedings. Under earlier case law, even when the court rejected a bargain, the defendant’s confession could be used against him at trial. The practical effect of this change may not be as great as it appears, however, since the same judges who have heard the excluded confession would be the ones conducting the subsequent trial.

In a broader context, Germany’s official embrace of plea bargaining is notable because it appears to represent a global trend. Countries as diverse as Russia, India, Taiwan, Australia, and Argentina have now adopted some form of plea bargaining. As a major civil-law system, Germany may well influence further developments in this direction around the world. It might not be long before countries like China and Japan-which have so far largely resisted plea bargaining-formally adopt the practice. And even countries with longstanding traditions of plea bargaining, such as the United States, could learn from Germany’s experience about new ways to enhance the fairness of plea bargaining.

How Far Can Lawyers Go in Criticizing the Court? An International Perspective

Jenia Turner — Thu, 09 Jul 2009 17:43:04 +0000

At the end of May, the Extraordinary Chambers in the Courts of Cambodia (ECCC), a hybrid court composed of national and international judges, issued a warning to a defense lawyer for offending the court and obstructing the proceedings. The lawyer was Jacques Verges, a French attorney who has made a career of representing notorious clients and taking on politically charged cases. At the ECCC, he represents Khieu Samphan, Cambodia’s former Head of State, who is accused of committing crimes against humanity and war crimes during the horrific era of the Khmer Rouge. Verges was reprimanded for using delay tactics and implying that the court’s judges are corrupt. The decision raises the question of how far an attorney may go in raising questions about the integrity of an international court.

Verges made the remarks during a pretrial hearing concerning his client’s request for release from detention. During the hearing, which the court had postponed twice to accommodate Verges’s schedule, Verges made no comments on the merits of the motion, but instead hinted at the possibility of the tribunal’s corruption:

…Firstly, I shall be silent because it is not for me to be more concerned about your honour than you yourselves are. If you consider that corruption should not be discussed, I am not going to force the discussion on you. I shall be silent because I understand your caution in this regard and I think that the presumption of innocence that you sometimes deny the accused may be of some benefit to you. And I shall be silent because the Head of State which hosts you has stated publicly that he wishes you to leave, making of you, in a moral sense, squatters. I shall be silent also because a member of the Government of the country that hosts you stated that you were obsessed only by money, thus confirming the charge-be it grounded or not-of corruption, which blights the tribunal.

In response, the court warned Verges that if he continued along these lines, he would be sanctioned. The court also forwarded a copy of the warning to the Cambodian and French bars.

What makes the situation at the ECCC complicated is that there have been numerous allegations of corruption involving ECCC court staff. These allegations have come from inside staff members, human rights NGOs, and the UN itself, whose Office of Internal Oversight Services investigated allegations of corruption and delivered a report to the Cambodian government implicating specific individuals (the Cambodian government has not revealed or followed up on this report). Both defense attorneys and victims’ attorneys have called on the court to investigate the question further. So far, the allegations focus on kickbacks that ECCC staff members may have paid to Cambodian officials in return for their positions at the court. The allegations appear to implicate only the Cambodian staff and not any of the judges. But motions by other ECCC defense teams have argued that even corruption among court staff could affect the fairness of the trial. As one motion states: “if staff members entrusted with sensitive tasks are willing to engage in graft, those individuals may be equally willing to follow improper instructions, such as the manipulation of evidence to support a preordained political outcome.”

Verges’s comments to the court might be read to stop short of any direct accusation of the judges, but they certainly hint at the possibility of improper motives. Perhaps more relevant for purposes of the warning is that his comments were raised during a hearing on a motion to release his client from detention, distracted from the merits of the motion, and did not appear to be reasonably calculated to advance the legal interests of his client. Trying accused war criminals from the terrible era of the Khmer Rouge remains the ECCC’s primary business. As long as this mandate remains, the ECCC judges cannot allow the trial of every defendant, and every related motion, to be turned into an argument about the court’s own separate problems. ECCC judges were therefore correct to warn him that they would be prepared to take more serious measures to ensure orderly and speedy proceedings.

Still, while Verges’s statements may have justified the warning in this case, the ECCC should be cautious in reprimanding lawyers simply for raising the question of corruption at the court. The issue is too important to the court’s legitimacy, as some of the international judges themselves have acknowledged. It would be unfortunate if the only measure that the court takes in response to allegations of corruption is to reprimand defense attorneys for raising the issue.

Truthseeking and Criminal Procedure in the Supreme Court’s Last Term

Jenia Turner — Fri, 03 Jul 2009 02:55:00 +0000

Many thanks to Concurring Opinions and Dan Solove for inviting me to guest blog and to Dan for the kind introduction. I look forward to the visit and am excited to be part of C.O.’s talented and diverse group of bloggers.

As the Supreme Court’s term has just ended, I could not help but comment briefly on some of the Court’s pronouncements on criminal procedure. Because of my interest in comparative criminal procedure, I was curious to observe how in several recent opinions (Herring v. United States; Montejo v. Louisiana; Kansas v. Ventris), the Court suggested that “truthseeking” was a central concern of our criminal justice system and may trump individual liberties in certain cases. Specifically, the Court construed the Sixth Amendment right to counsel and the Fourth Amendment’s exclusionary rule more narrowly than before, out of concern that these individual rights and remedies interfere with the goal of truthseeking. For those familiar with the “inquisitorial” systems of continental Europe, the focus on truthseeking would sound familiar. European courts have long emphasized the preeminence of the search for truth in the criminal process. But is the adversarial American criminal justice system moving toward a new understanding of its goals, similar to that prevalent in inquisitorial systems? Are we moving away from our entrenched “anti-inquisitorialism“?

One of the latest decisions of the term suggests that truthseeking does not always win the battle. In D.A.’s Office v. Osborne (a 5 to 4 decision), the Court denied the existence of a due process right to DNA evidence after conviction. In that case, the State of Alaska conceded that there was no reason to doubt that the retesting of the evidence requested by Osborne would conclusively establish his guilt or innocence. If Obsorne were to be proven innocent, the retesting could also help determine the true offender.

The only reason given by Alaska for denying Osborne access to the DNA evidence was that it would interfere with the state’s interest in finality. The Court’s majority agreed and also declared its reluctance to interfere with Alaska’s decision by creating a federal constitutional right to access DNA after conviction. The Court acknowledged that 47 states and the federal government already provide for such access. It was interesting to note that both the majority and the minority made this point in favor of their position-the majority as a reason to defer to local democratic processes which are already addressing the question, and the minority to show that a consensus has emerged that post-conviction DNA access is part of our shared understanding of fundamental fairness.

In the end, for five justices, truthseeking was outweighed by the interest in finality of judgments and deference to states. If the 2008-09 term is any indication, the Court seems inclined to elevate the position of truthseeking relative to individual rights. But the Court is willing to let it take a back seat when it believes that it too severely threatens state prerogatives or the efficiency of the criminal justice system.

Criminalizing Matchmaking: Mail Order Marriage Laws

Solangel Maldonado — Wed, 10 Jun 2009 15:35:37 +0000

During his recent appearance on the Late Show with David Letterman, actor Alec Baldwin, who has been involved in a bitter custody dispute with his ex-wife for years, offended many people when he said that he would love to have more children and was “thinking about getting a Filipino mail-order bride.” Mr. Baldwin has since apologized for the insensitive comment and admitted that “such anger and frustration about the issue of sex trafficking is understandable.” Admittedly, some mail order marriages are the result of sex trafficking, but does this mean that countries should criminalize the mail order marriage industry as the Philippines has done?

The Philippines has two statutes addressing mail order marriages. Republic Act No. 6955, enacted in 1990, makes it a crime for any person to ”carry on a business which has its purpose the matching of Filipino women for marriage to foreign nationals either on a mail-order basis or through personal introduction.” The penalty for violation of the Act is a minimum six years imprisonment. In addition, if the offender is a foreigner, he will be deported (after serving his sentence) and permanently banned from Philippines.

In 2003, the Philippines enacted the Anti-Trafficking in Persons Act,which, among other things, makes it illegal “To introduce or match for money, profit, or material, economic or other consideration . . . any Filipino woman to a foreign national, for marriage for the purpose of acquiring, buying, offering, selling or trading him/her to engage in prostitution, pornography, sexual exploitation, forced labor, slavery, involuntary servitude or debt bondage.” The penalty for violation of the Anti-Trafficking Act is 20 years imprisonment and a minimum fine of one million pesos.

Despite these laws, the mail order bride industry continues to flourish. Experts estimate that one-third to one-half of all foreign fiancees who enter the United States each year met their American husbands-to-be through an international marriage broker. A large majority of the women come from Southeast Asian countries, including the Philippines, and the law has had little effect on international marriage brokers who do a lot of their advertising and matching online. Although the United States also has laws regulating the mail order bride industry, some commentators argue that these marriages exacerbate gender, race, and class inequalities and thus, the United States should follow the Philippines’ approach. Thoughts?

Twenty Years Later

Gerard Magliocca — Thu, 04 Jun 2009 20:13:41 +0000

This is the twentieth anniversary of the Tiananmen Square Massacre. As the Co-Director of IU-Indy’s China Summer Program, I’ve spent quite a bit of time in China over the last seven years. I am not a China expert, but I do know more about legal reform there than the average bear. So I thought I would try to provide some perspective on where things stand.

It is fair to say that individual freedom has increased for the average citizen so long as they are: (1) Han Chinese; (2) not that religious; (3) not interested in joining the Falun Gong or any other civil organization that rivals the Communist Party; and (4) not a lawyer bringing cases against state action.

That list does leave a lot of people in the cold, but for everyone else economic growth and the increasing thicket of law is providing more breathing space. The first point is well known but the second is not. The growth of administrative law and private law in China is just as remarkable as the growth of its GDP. Arbitrary action by the police or by grasping officials is still a problem, but not as much as it was in the 1970s when China had no law and no lawyers. Hu Jintao, the current President, is nowhere near as powerful as Mao Zedong or Deng Xiaoping were. This is clearly not democracy, but the standardization of the Communist Party’s succession and the emphasis on formal offices as the source of influence stands in stark contrast to the informal “Eight Immortals” (retired party leaders) who ordered the tanks into the Square in 1989 and banished their opponents.

The progress towards democracy in China is slow, but it is real. Someday this blog might even be free of censorship in Beijing.

Indicating Gender — Status

Naomi Cahn — Sun, 24 May 2009 02:10:19 +0000

This post is prompted by Jaya Ramji-Nogales’s discussion of the recent OECD Social Institutions and Gender Index. In her very thoughtful post – with which I entirely agree — she discusses the problems of “empirically measuring and ranking intangible phenomena such as social norms,” And she notes that the OECD publication was not entirely successful.But at least it tried.

In conjunction with a recent conference on state security in Norway, I examined six reports on state weakness to determine their approach to the use of gender equality as an indicator of state fragility or failure. These six reports were issued between 2005-2008 by highly influential U.S. foreign policy institutions, including private and public agencies, and one of them was co-authored by Susan Rice (before she became our Ambassador to the UN). While measures of gender equity are included in other assessments, such as the OECD’s index, the UNDP’s Human Development Report , or Freedom House’s evaluation of global freedom, this simply shows the integration of gender into development or civil liberties markers; these assessments are not self-conscious analyses of state security and fragility, unlike the 6 reports I examined. Apart from the USAID report, the other 5 reports did not use gender as an assessment tool.

Indicators and assessment tools can be important components in establishing state policies and practices towards developing countries. Consequently, the components that comprise each of these evaluative efforts are signs of what is considered critical to ensuring state stability. Donor agencies are increasingly using various indicators to help them evaluate country performance in order to ensure that their resources will be used most efficiently and effectively. While indicators are imperfect – they are subject to errors in measurement, and they take thin slices of complex issues — they are useful, within these limitations, for providing broad-brush pictures of a country’s status. But not if they don’t include gender at all. Gender equity provides a useful measurement of state security, as Fionnuala Ni Aolain, Dina Haynes, and I argue in our forthcoming book. Nonetheless, its significance is virtually unrecognized in numerous evaluations of state fragility, thereby leading to the risk that gender will remain unrecognized in efforts to promote state stability.

Pirates in International Law

Dave Hoffman — Wed, 22 Apr 2009 23:14:49 +0000

Over at Opinio Juris, Duncan Hollis has a must read post.

Update on torture prosecutions

Sonja Starr — Wed, 22 Apr 2009 01:10:42 +0000

Quick update: President Obama has now announced that he has not ruled out prosecuting the architects of the Bush Administration’s torture policy. While this announcement is technically consistent with his statement last Thursday (which promised only that the actual CIA interrogators would not be prosecuted), the President appears to be backpedalling from his broader suggestion that it’s time to move on rather than seek “retribution.” I think this is a positive development–as I explained in my Friday post, given that there is fairly strong reason to believe that torture occurred, the Convention Against Torture clearly obligates the United States to undertake a serious criminal investigation and to bring appropriate prosecutions if the evidence supports it.

Torture and “laying blame for the past”

Sonja Starr — Fri, 17 Apr 2009 12:16:42 +0000

On Thursday, the Obama administration released several of OLC’s notorious, but previously classified, memos on so-called enhanced interrogation techniques. President Obama made a statement decrying the techniques at issue but offering assurance to “those who carried out their duties relying in good faith upon legal advice from the Department of Justice that they will not be subject to prosecution.” This promise appears to be directed at the CIA interrogators themselves, not at the lawyers who drafted the memos or the policymakers who ultimately called the shots. Still, a passage near the end of Obama’s statement suggests that the administration’s not planning to charge anybody, period. He stated:

“This is a time for reflection, not retribution. I respect the strong views and emotions that these issues evoke. We have been through a dark and painful chapter in our history. But at a time of great challenges and disturbing disunity, nothing will be gained by spending our time and energy laying blame for the past. Our national greatness is embedded in America’s ability to right its course in concert with our core values, and to move forward with confidence. That is why we must resist the forces that divide us, and instead come together on behalf of our common future.”

This is a poetic passage, but is it right? The United States is party to a treaty (the Convention Against Torture ) that unambiguously requires it to take suspected torturers (or those complicit in torture) into custody and either extradite them or “submit the case to its competent authorities for the purpose of prosecution.” Now, Obama did not use the word “torture” in his statement, which was surely not an accidental omission—but his AG did explicitly state that waterboarding was torture in his confirmation hearings, and Obama presumably condemned these memos because he disagrees with their legal conclusion that none of the disputed techniques constituted torture. Let’s assume arguendo, then, that torture took place.

If this is so, then it seems to me that the United States has a clear treaty obligation to do precisely what Obama dismisses as a waste of time: lay blame for the past, and look for retribution. That is what obligatory-prosecution treaties are for—they aim to end impunity for international crimes by requiring governments to look backward, and demand accountability, even when they would rather not do so. I am not suggesting that the Convention requires every individual associated with torture to be prosecuted regardless of the circumstances. It states that upon investigation, the “authorities shall take their decision in the same manner as in the case of any ordinary offence of a serious nature under the law of that State,” which seems to allow some room for the ordinary exercise of prosecutorial discretion. DOJ might reasonably decide that some of the people involved with the policy aren’t legally responsible under the criminal implementing legislation. Or it could choose to focus enforcement resources on those it deems the most responsible for the policy, and exclude the interrogators themselves. Or it could decide that it simply couldn’t win cases against interrogators—that no U.S. jury would convict a defendant who had been acting on orders and on DOJ legal advice when the chief witness for the prosecution is a senior al Qaeda operative. But Obama didn’t make those arguments—instead, his argument was simply “Time to move on.” And that seems to me to be the one argument that the Convention bars us from making.

All that said, I have considerable sympathy for the position that Obama is in and even for the “time to move on” argument. Because I teach and write about international criminal law, quite a few people have asked me in the past few months whether I think Obama should pursue torture prosecutions, and my response has often begun with some variation of “Ugh.” On the one hand I have the international lawyer reaction, which is yes, of course (assuming the evidence is there to support prosecutions). But on the other hand I have the gut reaction, the practical reaction of somebody who generally supports President Obama and his policy agenda and wants him to succeed. That side of me says ugh, what a political nightmare that would be—there goes health care, etc., and is it really worth it?

As a general matter, while I hope that the push toward effective enforcement of international criminal law will continue and believe that domestic courts should be the front-line enforcers, I’m not really a supporter of the idea of imposing on states an absolute obligation to prosecute past international crimes. In some situations, there may be really compelling reasons not to do so. Not every society is the same; sometimes victims of international crimes would rather have peace than justice, for instance, and it is facile to suggest that the two always go hand in hand. Amnesties can sometimes help to bring an end to wars. Fragile new governments could be destabilized by an attempt to target former leaders, exposing citizens to renewed atrocities. My gut “ugh” reaction to the idea of prosecutions in the U.S. gives me renewed appreciation of the difficult dilemmas faced by transitional governments who are trying to do the best they can for their people.

When it comes to our dilemma, though, I don’t think “ugh” is ultimately a compelling argument. The United States is not a struggling transitional state, nor a war-torn nation trying to broker a peace deal with rebels. We have not experienced an overthrow of a regime, but a peaceful change of administration. Obama is the popular president of the world’s richest and most powerful nation and its oldest democracy. Taking on a few controversial prosecutions will not rend our Union–indeed, most Americans oppose torture and it is certainly possible that a criminal process (or at least a serious criminal investigation), carried out fairly and targeting those most responsible, might strengthen that consensus. And while the President is right that the country faces great challenges at this time, I think that in one important way pursuing these cases might help us to meet those challenges. The rest of the world cares about this stuff, and we need to earn back the trust of the rest of the world. We have made an unambiguous treaty commitment, and Obama ran for president in part on a promise to do his best to restore U.S. moral standing in the world by taking our international legal commitments seriously. I have to swallow hard saying it, but I would like to see that promise filled.

Solitary Confinement: Possibly Torture, Definitely Hell

Sonja Starr — Thu, 02 Apr 2009 05:43:27 +0000

Thanks very much to Danielle for her kind introduction, and to her and Dan for inviting me to participate in this blog. This is my inaugural blogging experience, and I’m (somewhat nervously) looking forward to it! Let me start with a brief comment on the story on solitary confinement by Atul Gawande in this past week’s New Yorker. Solitary confinement is practiced on quite a large scale in the United States, especially with the rise of supermax prisons over the past ten or twenty years. Gawande argues that solitary confinement essentially destroys prisoners’ brains. Humans are extremely social animals, and absent regular interaction, our minds deteriorate rapidly and to a surprising degree. Among people detained alone for extended periods, depression and misery are universal, and psychotic breaks are fairly common. Many prisoners of war describe solitary confinement as a worse experience than physical torture. Some prisoners more or less recover after return to ordinary prison or to society; others never do. A number of legal scholars have made similar arguments, and in fact the extreme psychological harm done by solitary confinement was recognized over a century ago by the Supreme Court in In re Medley, 134 U.S. 160 (1890).

Gawande’s article’s subtitle asks: “Is this torture?” Let me assume for a moment that Gawande, who pushes the torture comparison in the body of the piece as well, means that as a serious legal question. The question isn’t frivolous. The answer isn’t a categorical “yes,” but it’s probably not a categorical “no” either–it is plausible that some cases of solitary confinement in the U.S. might qualify as torture under international law. The leading formulation, in the Convention Against Torture, defines torture as “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted” for certain specified purposes, including punishment. Domestic and international courts have generally interpreted the severity requirement fairly strictly (though not as strictly as some recent US officials have done, to be sure), though certainly the dire picture that Gawande paints suggests that at least some instances of solitary confinement might qualify as severe mental suffering.

Some international authorities have addressed the question directly, and these paint a mixed picture. The European Court of Human Rights has rejected several challenges to solitary confinement under Article 3 of the European Convention on Human Rights, which prohibits torture and inhuman or degrading treatment. However, while denying particular claims, it has stated that solitary confinement is sometimes prohibited depending on the circumstances. Relevant circumstances include the length of the solitary confinement (indefinite length is prohibited), the extremeness of the isolation (“complete sensory isolation, coupled with total social isolation” is categorically prohibited), the reasons for prisoner’s isolation, and whether the prisoner receives appropriate psychological monitoring and treatment. Likewise, the U.N. Human Rights Committee has stated that “prolonged solitary confinement” may violate Article 7 of the International Covenant on Civil and Political Rights, which forbids torture and cruel, inhuman, or degrading punishment. In general, an international law theory based on “cruel, inhuman, or degrading treatment” might be an easier sell—it’s similar to torture, but less aggravated, and is also prohibited by international law, although (unlike torture) states are not required to criminalize it.

The CAT definition also specifically says torture “does not include pain or suffering arising only from, inherent in, or incidental to lawful sanctions,” which would seem to exclude solitary confinement in the U.S. criminal justice system. Still, this exclusion is not supposed to be a blank check for mistreatment of criminal detainees. According to the United States’ own stated reservations upon ratification of the CAT, the “lawful sanctions” provision cannot be read to allow governments to use penal law to circumvent the object and purpose of the Convention. See, e.g., Khouzam v. Ashcroft, 361 F.3d 161, 169-70 (2d Cir. 2004)). And in any event, the prohibition on torture and cruel treatment in the ICCPR, to which the U.S. is also party, includes no such qualification.

Meanwhile, the definition of torture in U.S. federal criminal law almost surely does not apply for a different reason. It covers mental suffering only when that suffering is triggered by (1) physical harm or a threat thereof; (2) drugging “or other procedures calculated to disrupt profoundly the senses of the personality”; (3) threat of imminent death; or (4) threats to others. Solitary confinement may “disrupt profoundly the senses of the personality,” but it is probably not a “procedure calculated” to do so, at least not within the sense probably contemplated by the statute’s drafters. (Note that U.S. constitutional arguments might be more persuasive, especially to U.S. courts, which are not known for their enthusiastic embrace of international human rights arguments. Over at Sentencing Law and Policy, Doug Berman has a recent post asking why there aren’t more constitutional lawyers challenging supermax confinement.)

All that said, of course, this legal question about torture isn’t really the main point of the article—Gawande isn’t suggesting that prison officials be brought up on torture charges, but rather that we rethink the policy of throwing tens of thousands of prisoners each year into solitary confinement. Perhaps solitary confinement is necessary to incapacitate certain highly dangerous, otherwise uncontrollable prisoners, but if Gawande’s picture is accurate, most of those currently in solitary don’t fall into that category. Some are there because of routine disciplinary violations committed while in ordinary prison, for instance. Indeed, Gawande says that most prison officials themselves believe solitary is used excessively, and would reduce reliance on it but for political pressures. And as illustrated by studies of solitary confinement in Britain in the 1970s, the practice is starkly at odds with the objective of rehabilitation, often rendering prisoners completely incapable of functioning in normal society or even in a normal prison upon return—and not all prisoners in solitary are serving life sentences there, so rehabilitation is a relevant concern.

Gawande’s article probably won’t surprise many scholars and practitioners of criminal law very much (indeed, some have been decrying solitary confinement for years). It’s one more illustration of the consequences, unintended or otherwise, of our often harshly overpunitive criminal justice system. But I still think it’s worth a read, and I’m hoping it finds a broad audience.

Bring on the Deans!

Jaya Ramji-Nogales — Wed, 25 Mar 2009 22:06:14 +0000

With Yale Law Dean Harold Koh’s nomination as State Department Legal Adviser, the Obama administration has tapped the deans of the country’s top two law schools, and is populated by numerous law professors, including, of course, the president himself. There’s nothing new in that observation, but it was still of interest to a European law professor who was visiting Temple Law School yesterday. In his country, there’s no such intermingling between academia and government — the executive bureaucracy remains in place regardless of electoral outcomes; a new political party in power leads to change at the very top but otherwise few shifts occur. Though there may be some efficiency benefits to a permanent bureaucracy, I can’t say that I see much more to recommend it, and nor could our guest. While permanent executive officers would develop significant expertise in the subject area relevant to their post, I can’t imagine that luminaries such as Koh and Kagan, with not only deep knowledge but also serious candle-power, would migrate in large numbers to such positions. A permanent bureaucracy might result in increased ideological stability, without the migration between the left and the right that we see in the U.S., but I query whether this outcome is possible (can permanency eliminate political inclinations or does it simply entrench them?) or even desirable. At least in our system of government, the executive branch should be responsive to the will of the people, and the cyclical shifts in ideological inclinations help to moderate extreme influences on both sides of the political spectrum. As long as excellence and experience, rather than ideology, are the central rationales for selection of political appointees, these swings should improve governance in the long run, by bringing in fresh ideas and new perspectives every four to eight years. So bring on the deans, I say — our government will be a richer place for it.

International Child Abductions and Children’s Best Interests

Solangel Maldonado — Mon, 16 Mar 2009 20:16:07 +0000

Some of my family law students have been following the international custody case involving Brazil and the United States. According to David Goldman, a New Jersey resident, in June 2004, his wife took their four year-old son, Sean, to Brazil on vacation where he was supposed to join them a week later. However, a few days after arriving in Brazil, his wife informed him she was divorcing him and would remain in Brazil with their son. This case is not unique. Thousands of parents each year remove children from their country of residence and retain them in another country without the other parent’s consent, in breach of the other parent’s custodial rights. Lawmakers around the world have long known that international child abduction by a parent is a serious problem and have attempted to create a mechanism to ensure that children are returned to their country of residence. Under the 1980 Hague Convention on the Civil Aspects of International Child Abduction, ratified by 68 nations, the signatory countries agree to promptly return a child who has been wrongfully removed to or retained in another signatory country.

Unfortunately, the Hague’s procedural mechanisms do not always work for two reasons. First, courts do not always comply with the Hague and second, even when they do, abducting parents sometimes go into hiding with the child and cannot be found. The retaining country and its law enforcement officials often make little effort to find the child.

The Goldman case clearly illustrates the first reason. Mr. Goldman did what he was supposed to do to get his son back to the United States. He immediately filed a petition for Sean’s return in New Jersey Superior Court. Just two months after Sean’s abduction, the New Jersey Superior Court ordered that he be returned to New Jersey. When Ms. Goldman did not comply with the New Jersey court order, Mr. Goldman contacted the U.S. Department of State which contacted the Brazilian government. Mr. Goldman also filed a petition for Sean’s return in the Brazilian courts. Sixteen months after Sean’s abduction, the Brazilian court agreed with the New Jersey Superior Court and held that Sean had been wrongfully removed to or retained in Brazil. However, the court found that one of the Hague’s exceptions to return applied—that legal action was not commenced within one year of the abduction and the child is now settled in the new country. Mr. Goldman has appealed the Brazilian court’s decision, arguing in part, that he filed his Hague petition within three months of Sean’s abduction. In the interim, there are two conflicting decisions from two different countries and no mechanism for resolving them. The U.S. State Department has cited Brazil for its failure to comply with the Hague, but that does nothing for parents like Mr. Goldman who are still waiting for their children’s return. Further, even if the Brazilian appellate courts decide that Sean must be returned to New Jersey, after almost five years in Brazil, the potential harm to this child, if he is returned to New Jersey, may be significant.

While this case was slowly making its way through the Brazilian court system, Ms. Goldman divorced Mr. Goldman and married her attorney. When she died a few hours after giving birth to her second child this past August, Mr. Goldman went to Brazil to take custody of Sean, but a Brazilian family court awarded custody to Sean’s stepfather. Although Mr. Goldman is certainly not to blame for the loss of his child, the Brazilian family court’s decision to deny him custody might actually be in Sean’s best interests. Most U.S. states recognize that parents have a fundamental right to the care and custody of their children and will not award custody to a non-parent over a parent unless it would be detrimental to the child’s welfare. This might be one of those cases where a child will suffer serious psychological and emotional harm if the court awards custody to a parent over a non-parent. Sean did not see his father once in almost four and a half years, and a return to the U.S. where he has not been since he was 4 years old (he is now 8), far away from his 7 month-old sister, his stepfather, and maternal grandparents would likely be detrimental. Children are resilient and Sean will probably be able to bond with his father once again, but it would be foolish to ignore the potential harm to a child if he is removed from his home and the people (such as his stepfather and grandparents) who may have become his psychological parents.

U.S. officials, including the U.S. House of Representatives and Secretary of State Hillary Clinton, are pressuring Brazilian officials to return Sean to the U.S. immediately, as required by the Hague Convention. Unfortunately, just because the law requires a certain outcome does not mean that it will automatically be in this particular child’s best interests. This raises the question: at what point must children’s best interests be sacrificed to the international community’s interest in discouraging child abductions and its interest in ensuring that countries, such as Brazil, comply with international law expeditiously?

Auf Wiedersehen E-Voting Machines

Danielle Citron — Tue, 03 Mar 2009 22:20:58 +0000

It appears that Germany is saying goodbye to its computerized voting machines, at least for now. Germany’s highest court declared unconstitutional the country’s use of e-voting machines in the 2005 elections, the country’s first large-scale deployment of the technology. According to Constitutional judge Andreas Vosskuhle, the judgment did not rule out digital voting in the future, but instead made clear that the equipment used four years ago had problems that warranted the ruling. The court nonetheless upheld the result of that election because plaintiffs had no direct proof that the machines produced errors. In September, Germany will return to a paper-and-pencil election.

The suit that promted the ruling was brought by political scientist Joachim Wiesner and his son, physicist Ulrich Wiesner. The father-and-son team argued that e-voting machines’ opacity prevented voters from seeing what actually happened to their votes inside the computers, rendering it unconstitutional to put “blind faith” in the technology. They also emphasized the security risks that inhere in e-voting systems.

Germany joins the Dutch government in abolishing e-voting. In 2008, the Dutch government went a bit further, decertifying the existing paperless systems and rejecting a proposal to develop a new generation of voting computers. In the United States, while a plethora of well-regarded technologists decry the use of touchscreen e-voting systems, both for their risk of inaccuracy and for their lack of security, many states remain firmly committed to our e-voting systems. This move might ask us to consider whether other countries have a higher regard for the accuracy and security of voting than we do.

Empiricizing Transitional Justice

Jaya Ramji-Nogales — Fri, 30 Jan 2009 15:30:04 +0000

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.

Courting Genocide?

Jaya Ramji-Nogales — Fri, 23 Jan 2009 14:00:00 +0000

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.