Sunday, October 19, 2014
I've been on hiatus for two weeks after travelling to China to deliver four presentations on subjects ranging from the status of the death penalty in the U.S. to a comparative review of new anti-corruption legislation around the world. I had a great time in China and wish to thank my hosts at the Shanghai University of Political Science and Law, the Shandong University of Political Science and Law, as well as the China University of Political Science and Law. The discussions that I had with students and faculty at all three universities were productive and engaging.
From the standpoint of both the criminal law and economic law, the Chinese legal system is continuing to evolve. It was not until 1997, that the Chinese Code began to depart from creating the definitions of crime by analogy and instead began to rely on legally prescribed principles. Since 1997, the Code of Criminal Law has been amended eight times with the ninth amendment expected next year. The content and number of economic crimes has changed with each Amendment to the Code-in part reflecting economic reforms. One change that is underway with respect to economic crime is the emergence of more crimes of omission based on a duty owed by one party to another.
One key issue that the Chinese legal academy is grappling with is the issue of what types of unlawful economic level should be punished by the criminal code versus administrative regulations. This is particularly true with respect to environmental crimes where late last year China's ministries of public security and environmental protection announced that they would be cooperating more closely in the investigation and prosecution of environment-related crimes.
Tuesday, October 14, 2014
Two recent events overlap to raise a question about rendering of verdicts after trial. In Warger v. Schauers, the US Supreme Court recently heard oral argument about whether a civil plaintiff can move for a new trial based on information about something that occurred during jury deliberations that ended in a defendant’s verdict. The case raises the seemingly well settled question about whether the courts and the public and the parties can have access to information about what happens in a jury room during deliberations. The long standing and unwavering current answer is a resounding no. Based on press and opinion, the Supreme Court does not seem likely to change that.
In Warger, the plaintiff sought to rely on information that the forewoman had stated during deliberations that her daughter had been at fault in an auto accident and that her life would have been ruined if she had been sued. Apparently, the forewoman had made no mention of this during voir dire. The plaintiff relied on this information to seek a new trial, arguing that the forewoman had been dishonest and should not have been seated on the jury. The lower courts refused to rely on this information because it violates the total privacy given to jury deliberations in the United States (absent a third-party influence into the jury room). Although the plaintiff sought to escape this well-established rule by arguing that his claim related to jury composition not deliberations (she shouldn't and wouldn't have been seated), observers of the oral argument did not think the Court would accept that distinction. At a time when the public has so much more information than any given jury, and when jury service has sometimes been viewed as an opportunity for fame, our continued refusal to examine what goes on in the jury room jeopardizes the public's trust in the reliability of the jury process, even though it protects an ideal version of the democratic jury.
In contrast to this total prohibition against scrutiny of deliberations we have the reading, on worldwide television, of the verdict in the Oscar Pistorius trial. Not only was the verdict rendered in public; according to South African law the judge who rendered it (with the help of two appointed assessors) gave all of her reasons for the verdict, including resolution of credibility questions, the drawing or rejection of inferences, and the like.
So these two cases are a study in contrasts. Is it necessary to close our eyes to improprieties in the jury room – if indeed they occur – in order to secure the right to a traditional lay jury? Do we have to give up the judgment of lay jurors to learn the reasons why a jury resolves a case the way it does? Food for thought.
Tuesday, October 7, 2014
We are sorry to report the sudden death of Pofessor H. Patrick Glenn of McGill, President of the American Society of Comparative Law. Professor McGill was an expert and major figure in private international law. We extend our condolences to his survivors and note that he will be sorely missed.
For further information, we have posted his obituary from the McGill Website:
Monday, September 29, 2014
As many law schools struggle in the current economic environment, academics and administrators are being forced to take a closer look at the market for legal services. We know big law jobs have shrunk and we know that funds for representation of indigent people have shrunk as well.
What is emerging, though, is the huge need for legal representation in the middle. The new “poor” are those who earn too much to qualify for legal aid but cannot afford to purchase legal services in the market place. In the United States, this development has been one motivation for the institution of pro bono programs in the profession and at law schools. Arguably, it has also resulted in an expansion of what it means to be a “poverty lawyer” or to devote one’s self to helping “poor people.”
What we are now experiencing is the increasing presence of low-to-moderate-income pro se litigants in the courts.
This is not just the province of the United States. England recently reported that in 70 percent of family related cases at least one parent proceeded without counsel.
Unless the market changes we are observing are cyclical – and they might be - as we continue to educate future lawyers who we hope have realistic possibilities of professional employment, we need to figure out what this new market requires, inspire our students to enter it, and equip them to do so.
Stephen Ellmann, Clinical Theory Workshop – What We Are Learning, 56 N.Y.L.Sch. L. Rev. 171 (2011/2012).
Artika R. Tyner, Planting People, Growing justice: The Three Pillars of New Social Justice Lawyering, 10 Hastings Race & Poverty L.J. 219 (2013).
Francis Gibb, “Children are Victims of Legal Aid Cuts,” The London Times, Law Page, September 24, 2014.
Sunday, September 28, 2014
No one can deny that rape is a horrible crime that often leaves traumatic and invisible scars on victims that may last for decades. Nor too can we deny that women in many countries in the Middle East possess far fewer rights than their counterparts in the West. Yet the upcoming execution of five convicted rapists in Afghanistan will do little to advance the rights of women in that country.
Instead, the legacy that the executions will leave behind will be one of the power of show trials, evidence coerced by torture, and the intimidation of defense counsel. Ultimately, the executions will also expose the limits of rule of law reforms that the U.S. spent over $900 million on over the last decade.
The evidence of the startling lack of due process in the case begins with the fact that the only evidence against the defendants are the defendants' own coerced confessions. While the victims selected the defendants in a lineup, this identification came only after one victim had first mistakenly identified a detective and a police cook as her assailants. After the police "corrected" the victim, the victim eventually identified the suspects. At the same time, in the midst of strong public pressure and death threats, the suspects' defense counsel were allegedly too frightened to put on a defense.
Unfortunately, the execution of the defendants is likely to take place today on Hamid Karzai's last official day in office-further evidence that the fast track to justice in this case has had little to do with conducting a fair process and everything to do with satisfying a vengeful mob.
Rod Nordland, "In a Final Act, Karzai Orders Execution of 5 Men in Rape Case," NEW YORK TIMES, Sept. 27, 2013.
Monday, September 22, 2014
March 6 and 7, 2015
Announcement and Call for Papers
Co-sponsored by the American Society of Comparative Law; the Program in Law and Public Affairs, Princeton University; the University of Illinois College of Law and the UCLA Law School
Workshop Planning Committee:
Kim Lane Scheppele, Program in Law and Public Affairs, Princeton University
Maximo Langer, Law School, University of California at Los Angeles
Jacqueline Ross, University of Illinois College of Law
The organizers invite all interested comparative law scholars to consider submitting a paper to the next annual Comparative Law Work-in-Progress Workshop, which will be held on Friday and Saturday, 6-7 March 2015, Princeton University. We will accept up to seven papers for workshop discussion, and we plan to select a mix of both junior and senior scholars.
Interested authors should submit papers to Kim Lane Scheppele at Princeton (firstname.lastname@example.org) by Monday, 5 January 2015.
The conference organizers will inform authors of their decision by the end of January. Participants whose papers have been accepted should plan to arrive in Princeton, New Jersey no later than noon on Friday 6 March and to leave on Sunday 8 March.
The annual workshop continues to be an important forum in which comparative law work in progress can be explored among colleagues in a serious and thorough manner that will be truly helpful to the respective authors. "Work in progress" means scholarship that has reached a stage at which it is substantial enough to merit serious discussion and critique but that has not yet appeared in print (and can still be revised after the workshop, if it has already been accepted for publication.) It includes law review articles, book chapters or outlines, substantial book reviews, and other appropriate genres.
Our objective is not only to provide an opportunity for the discussion of scholarly work but also to create the opportunity for comparative lawyers to get together for two days devoted to nothing but talking shop, both in the sessions and outside. We hope that this will create synergy that fosters more dialogue, cooperation, and an increased sense of coherence for the discipline.
The participants in the workshop will consist of the respective authors, commentators, and faculty members of the host institutions. The overall group will be kept small enough to sit around a large table and to allow serious discussion. The papers will not be presented at the workshop. They will be distributed well in advance and every participant must have read them before attending the meeting. Each paper will be introduced and discussed first by two commentators before opening the discussion to the other workshop participants. Each of the authors selected for the workshop is expected to have read and to be prepared to discuss each of the papers selected. The author of each paper will be given an opportunity to respond and ask questions of his or her own. There are no plans to publish the papers. Instead, it is up to the authors to seek publication if, and wherever, they wish. The goal of the workshop is to improve the work before publication.
The Workshop will be funded by the host school and by the American Society of Comparative Law. Authors of papers and commentators will be reimbursed for their travel expenses and accommodation up to $600, by either by the American Society of Comparative Law or Princeton University, in accordance with the ASCL reimbursement policy (as posted on its webpage.) The organizers ask that authors inquire into funding opportunities at their home institutions before applying for reimbursement by the ASCL or by Princeton.
Friday, September 19, 2014
We are pleased to post this announcement:
Call for Papers
AALS Sections on Comparative and African Law
Works-in-Progress Program: Understudied Comparative Law
AALS Annual Meeting, January 3, 2015
After a successful and lively session featuring new scholarship in the Section on Comparative Law works-in-progress program for the first time last year, the Section on Comparative Law —this time, jointly with the Section on African Law—is pleased to announce a Call for Papers for a second Works-in-Progress Program in Comparative and African Law from 10:30am to 12:15pm on Saturday, January 3rd at the AALS 2015 Annual Meeting in Washington DC.
A central aim of this program will be to bring together junior and senior comparative law scholars for a lively discussion of the junior scholars’ works-in-progress. Junior comparatists and African law scholars, based on our call for papers, are encouraged to submit papers that are substantially complete (many may have been submitted in the summer/fall 2014 law review submission cycle). After the selected junior scholars briefly present their papers, senior comparative law scholars will provide oral comments and critiques on the papers, to which the junior scholars will have an opportunity to respond and the audience will have a chance to join in discussion of the paper. Confirmed senior scholars include Professor Duncan Kennedy of Harvard Law School and Professor Teemu Ruskolafrom Emory University School of Law. Continuing the trend of last year, this program presents an opportunity to participate in discussions of cutting-edge comparative law scholarship by recently joined members of the academy.
This year’s theme is Understudied Comparative Law—aiming to attract papers that address subjects and methodologies in comparative and African law that move beyond, critique, or engage traditional categories, however defined, in new ways. We will limit our selection to no more than four papers to allow junior participants to receive substantive feedback from senior commentators and to enable the members of this joint section meeting to engage in substantive discussion of comparative law methodologies. While all are welcome to submit papers, scholars writing on African law, Chinese law, Islamic law, South or East Asian law—or methodologies for these and other understudied comparative law areas—are especially encouraged to submit papers.
Form and length of submission
Eligible faculty members are invited to submit manuscripts dealing with any aspect of the foregoing topics. Draft papers should be comprehensive enough to allow the committee to meaningfully evaluate the aims and likely content of papers they propose.
Untenured faculty members are particularly encouraged to submit manuscripts. Papers may be accepted for publication but must not be published prior to the Annual Meeting.
Deadline and submission method
To be considered, papers must be submitted electronically to Intisar Rabb, Chair, Section on Comparative Law, email@example.com; and Susan Hascall, Chair, Section on African Law, firstname.lastname@example.org by November 1, 2015.
Papers will be selected after review by officers of the Sections on Comparative and African Law. The authors of the selected papers will be notified by November 15, 2015.
Full-time faculty members of AALS member law schools are eligible to submit papers. The following are ineligible to submit: foreign, visiting (without a full-time position at an AALS member law school) and adjunct faculty members, graduate students, fellows, non-law school faculty, and faculty at fee-paid non-member schools. Papers co-authored with a person ineligible to submit on their own may be submitted by the eligible co-author. Call for Papers participants will be responsible for paying their annual meeting registration fee and travel expenses.
Please forward this Call for Papers to any eligible faculty who might be interested.
For questions, please contact:
Susan Hascall, Chair, Section on African Law, email@example.com
Intisar Rabb, Chair, Section on Comparative Law, firstname.lastname@example.org
Stephen Ellmann, Chair-Elect, Section on African Law, email@example.com
Sudha Setty, Chair-Elect, Comparative Law Section,firstname.lastname@example.org
Intisar A. Rabb
Professor of Law, Harvard Law School
Professor of History, Harvard University
Director, Islamic Legal Studies Program
1525 Massachusetts Avenue•Griswold 402• Cambridge, MA 02138
Monday, September 15, 2014
Forty-three veterans and active reservists from an elite Israeli military unit sent a letter last week to their commanders, as well as Israel's Prime Minister, in which they announced their refusal to continue to spy on Palestinians in the occupied territories. The letter chastizes Israel for not affording Palestinians currently living under military occupation the same protection from surveillance that Israeli citizens possess and alleges that the surveillance is designed to "create divisions within Palestinian society by recruiting collaborators and driving parts of Palestinian society against itself."
According to their letter, their commanders had required them to perform intelligence activities that made “no distinction between Palestinians who are and are not involved in violence.” The soldiers claim that the information collected by their unit “harms innocent people” and “is used for political persecution." The letter goes on to claim that Palestinians may not be able to get a fair trial in Israel's military courts because they are not given access to the evidence collected against them.
While the veterans have been criticized for making their claims public, the letter's signatories claim that it was necessary to go public because their commanders had previsouly refused to investigate their claims.
At the same time, it is apparent that the individuals who signed the letter aim to advance a larger argument beyond individual intelligence missions. Indeed, the letter sets out to challenge the larger Israeli narrative concerning the role that settlements play in Israel's national security as it states that "[s]ettlement expansion has nothing to do with national security."
Perhaps the soldiers' most thought provoking allegation is their argument that intrusive surveillance activities do not allow people to live normal lives and "fuels more violence further distancing us from the end of the conflict."
Although the release of the letter to the public as well as its contents raise issues of insubordination, the larger issues of whether the Israeli government should spy on Palestinians who have not been involved in violence as well as those who have and how the government elects to use that intelligence raises issues that are not unique to Israel. When intelligence is used to disrupt not only the activities of terrorists, but also the activities of law-abiding residents, it raises questions regarding the extent to which Israel is committed to the peace process.
For example, is it lawful for the NSA to collect data on internet users who are not suspected of committing crimes? By law, the NSA is obligated to make efforts to exclude U.S. citizens from its data collection activities. Despite that fact, the agency's data collection procedures capture domestic emails from U.S. citizens. While NSA attempts to purge its computers of information on Americans not involved in terrorist activities, neither the FBI nor the CIA are engaged in similar data purges. The continued existence of that information poses a threat to our right to privacy.
Friday, September 12, 2014
As noted in a prior blog, the most striking visible comparison at this homicide trial was the absence of a twelve-person lay jury and the presence of a single judicial factfinder who, assisted by two assessors, sat in judgment of the defendant. The rendition of a verdict magnifies this difference. In the United States, of course, the law forbids a criminal jury from explaining its guilty/not guilty verdict in any way, even to the point of prohibiting any sort of questions or special interrogatories that we regularly use in civil cases. Even when jurors are interviewed post-trial and actually tell the media why they decided a case the way they did, that information has absolutely no legal significance unless there has been an invasion into the jury room, e.g., a bribe, a newspaper article, and the like. To be sure, we do have judicial factfinders who explain their findings of fact in detail and on the record; but in most cases those factfinders are making factual determinations in connection with legal rulings, e.g., suppression hearings, sentencing, and the like – and not judging the guilt or non-guilt of fellow citizens, with all the consequences of that determination.
There are good reasons for our prohibition about impeaching a jury’s verdict. Briefly, those reasons stem from the role of the jury in our system – the people in the courtroom – and the freedom of that group of supposedly “impartial” “peers” to do what it thinks is best and for whatever reasons it wants, without fear of reprisal or reversal. That is a basic protection for defendants in our system, and, accordingly, we devote a tremendous amount of resources to jury selection and the jury process. In South Africa, however, the jury trial was abolished along with apartheid, and the jury in a murder case – like Pistorius – consists of a judge and two assisting assessors – two jurors who, as far as I can tell, have never appeared publicly during the trial, certainly not during the announcement of their own verdict. And of course, this process has lasted a painfully long time, much longer than the actual trial would have taken in the United States (assuming this case would be one of the rare ones that actually goes to trial).
Less protection for the accused? Greater protection for the accused? Different protection for the accused? If you’re looking for the power of the people to do what they want to render a just verdict, that protection is missing. Visually, this is striking – a single judge is handing down the decision of guilty or not guilty, and two members of the jury are apparently invisible. But there is something comforting about knowing exactly why the factfinder decided as it did. Of course, we are familiar with the underlying notion in our system that one way we limit judicial discretion is to require a judge to write down reasons for his or her rulings – both because it forces the judge to justify and articulate the findings and so that those rulings can be reviewed. But more than that, on a human level, it just feels right to require anyone who judges another human being – and condemns him – to explain why.
A different set of protections, to be sure. But food for comparative thought.
Thursday, September 4, 2014
We would like to share the following announcement:
Call for Participation
Twelfth Annual LatCrit-SALT
Junior Faculty Development Workshop
October 9, 2014
University of Nevada-Las Vegas
Las Vegas, NV
LatCrit, Inc. and the Society of American Law Teachers (SALT) are pleased to invite interested participants to the Twelfth Annual Junior Faculty Development Workshop (FDW), immediately preceding the SALT Teaching Conference. This annual workshop is designed for critical, progressive, and social justice oriented pre-tenure professors, including clinicians and legal writing professors, as well as those who may be contemplating a teaching career. However, we also encourage more senior members of the profession to attend, share their experience, and serve as resources and mentors.
The FDW is designed to familiarize critical, progressive, and social justice oriented junior faculty with LatCrit and SALT principles and values and support them in the scholarship, teaching, and service aspects of professional success. In addition, the FDW seeks to foster scholarship in progressive, social justice, and critical outsider jurisprudence, including LatCrit theory, among new and junior faculty, students, and practitioners. Finally, the FDW aims to cultivate a community of scholars interested in the continuation of this and similar projects over the years.
To facilitate community building through shared experiences and the exchange of ideas, we strongly encourage all participants to attend the entire workshop.
If you have questions about the workshop or would like to attend, please email SALTLatCritFDW@gmail.com. Although we will make efforts to accommodate all interested participants, RSVPs are strongly suggested by September 30, 2014
Sunday, August 31, 2014
Rather than permitting former Archbishop Jozef Wesolowski, the Vatican’s ambassador to the Dominican Republic, to stand trial on the soil where he seduced young children for cash, the Vatican recalled him to Rome. While he is apparently now free to roam the streets of Rome, he left behind scores of young victims whose poverty he apparently exploited. Despite the fact that the Vatican's own guidelines state that reports of child abuse should be made in the country where the abuse occurred, the Vatican chose to recall and defrock its ambassador and failed to file a report with the local authorities.
Although, under Vatican law, sexual abuse may be punished by 12 years of imprisonment, the Vatican's decision to recall their ambassador rather than report the matter to local authorites will apparently deprive many of the Arbishop's victims their day in court. Given that child sexual abuse and human trafficking are serious problems in the Dominican Republic, by whisking away the alleged perpetrator to stand trial away from the scene of his crimes, the Vatican has deprived the citizens of the Dominican Republic the opportunity to seek justice for their own citizens.
Laurie Goodstein, "For Nuncio Accused of Abuse, Dominicans Want Justice at Home, Not Abroad," August 23, 2014. New York Times.
Laurie Goodstein, "Ex-Diplomat for the Vatican Could be Tried," August 25, 2014. New York Times.
Monday, August 25, 2014
Through the mechanisms of the jury trial and popularly elected district attorneys and legislatures, our system of criminal justice is supposedly responsive to popular opinion. Yet this sensitivity to politics at times threatens the system's basic conceptions of due process. For example, the failure of state and federal government to adequately fund indigent defense services undermines the implicit assumption in our system that a battle between equal parties will produce the truth. Public support for "tough on crime" policies helped to fuel the nation's massive over-incarceration problem.
Although our nation's system of immigration courts is largely separate from our criminal justice system, some of the same inequities which run rampant in our criminal justice system have recently come to light in rural detention centers. Just last week, the ACLU, the National Lawyers Guild, the National Immigration Law Center, and the American Immigration Center filed suit in federal court alleging that immigration authorities in Artesia, New Mexico were engaging in a set of behaviors designed to compromise the due process rights of ten women and children by making it difficult for the individuals to file for asylum.
Some politicians including the current governor of Texas, seem eager to equate rapid deportation with "enforcing the law." Those who seek to use the law instrumentally as a tool of the state without regard for procedural guarantees risk reducing the law to a mere tool of the powerful. One wonders, how Mr. Perry would respond, if he was immediately jailed and tried on the charges in his recent indictment. Increasingly, the only individuals who get their day in court in this country are the ones who possess the power and means to enforce their rights. Perhaps, Mr. Holder, who recently created hope for the disempowered in Ferguson, Missouri might make Artesia, New Mexico his next stop.
Julia Preston, "U.S. Faces Suit Over Tactics at Immigrant Detention Center," NEW YORK TIMES, August 22, 2014.
Friday, August 22, 2014
I have been involved in the criminal justice system for more than forty years, and I feel as if there has never been a summer with so much going on in the public eye. Ferguson, Missouri, is the most recent and most alarming event, following so closely on the Staten Island chokehold case. These cases have focused serious attention on the police-citizen relationship that was front and center last year in the stop-and-frisk decision and the settlement of that lawsuit by the new New York City mayor. We have been witness to the unprecedented actions of the Brooklyn, New York Conviction Integrity Unit in the District Attorney’s office, and to the dismissal of erroneous convictions in that county. These dismissals have been followed by substantial financial settlements by New York City. The New York Times ran a series of editorials urging the de-criminalization of marijuana possession in some circumstances, and another editorial calling for revisions in the virtually-non-existent clemency process. Four state governors are either being tried, charged, or investigated. Rampant prisoner abuse has been exposed just as claims made by prisoners has spiked, and there is now dialogue about the excessive use and destructive results of solitary confinement. The entire capital punishment process has come under scrutiny because the drug companies who provide the lethal drugs to accomplish our executions are no longer willing to do so. There is increasing focus on our entire system of punishment because of international attention on our disgracefully large prison population. On an international level, we have also been witness to mass executions in Egypt and a long-awaited English investigation of the poisoning of a Russian journalist in London. Scotland abolished its long-standing and unique corroboration requirement. We were witness to an historic event: a Black, South African, and female judge presiding at the trial of a young white male, who happened to be an internationally acclaimed athlete.
Having been raised on a September to September calendar, and having continued with that conception of the “year” as a law professor, I am pausing to wonder what we will witness in the next twelve months.
Sunday, August 17, 2014
In October, I will be visiting China for the first time to appear at a Global Conference on Corruption in Jinan. I have come to corruption through the backdoor of writing about whistleblowing legislation in the U.S. and am still getting my feet wet. Building on my prior work, I am interested in exploring corruption law from the perspective of prosecutorial discretion. While public concern with corruption has grown world wide during the past twenty years, prosecution has been selective.
Right now, concerns with bribes in the health care and pharmaceutical industries have moved to the forefront. Just last week, Syria announced that it is investigating claims that representatives from GlaxoSmithKline bribed Syrian doctors to boost sales of medicines. These new allegations follow allegations in China last year in which four GSK executives allegedly evaded the company's internal control systems in an effort to boost sales.
As my research continues, I hope to discover why certain industries either seem prone to corruption or are prone to investigation.
Scott Campbell, "Glaxo China Bribery Allegations-Timeline," THE TELEGRAPH, May 14, 2014.
"GlaxoSmith Kline Faces Bribery Claims in Syria," THE TELEGRAPH, August 12, 2014.
Saturday, August 9, 2014
Many of us working in comparative law, especially those of us engaged in long-term qualitative research, rely on summer for getting intensive fieldwork done. I'm curious how others have spent their summers, what "the field" looked like this year, and the limits or potential you see in summer re-engagement with familiar terrain.
I spent my summer working in and on Ukraine. I've worked there for 19+ years and this year was like no other I've ever experienced. (Many thanks to Shawn and Lissa for keeping the blogfires burning when internet complications and data overload kept me from it. There was a lot to process.) I'll be blogging more about aspects of my long-term research and current developments in upcoming posts.
For now, suffice it to say that the war in Ukraine has permeated life far beyond the areas of active fighting in the east. The war is palpable in Kyiv [Kiev]. Even today (literally), Ukrainian friends wonder if open invasion of the eastern border is imminent. And in potentially related news, volunteers and city authorities in Kyiv today cleared out several hundred "maidanovtsi," the remainder of those occupying the central square (Maidan) in Kyiv since the inception of protests last November. Some in Kyiv saw these remaining hundreds of (almost all) men living 24/7 in a large tent encampment on the Square as protecters of the revolution that drove out a repressive government in February. Others saw them as legitimate heros whose PTSD has kept them clinging to a place where comrades were felled by their own government's bullets. Others, playing on the term for self-formed platoon, sotnya, together with the word for alcoholic, had started to refer to them as alcosotni, desperate opportunists -- otherwise underemployed or unhoused -- who moved in or hung on when other protesters moved on to civilian lives. And still others saw the tent encampment of the remaining maidanovtsi as a potential security threat, a Trojan horse in the center of Kyiv waiting to be filled by unmarked military forces of the ilk that invaded Crimea in March or eastern Ukraine in April. No wonder, then, that ordinary residents of Kyiv (including many who supported the Maidan protests at risk to their own lives) joined the mayor in cleaning out the tents and belongings and rubbish of the remainders today.
Thus evictions, occupations, perceptions of risk, claims to rights, discourses of inclusion and exclusion are preoccupying me these days. Gautam Bhan has a new paper out that speaks to some of these themes (and attests to the potential richness of long-term qualitative research in comparative law) in a very different context. Gautam looks at bastis, or evictions of poor illegal settlements, in Delhi. [The Hindustani word basti, Gautam explains, comes from its root basna (to settle) and means, quite literally, settlement. Colloquially, it invokes an image of an impoverished settlement often made of temporary or kuccha materials that reflects in its form the vulnerability of its residents.]
Cribbing from his introduction, "This paper’s core preoccupation is in many ways an old one: through what mechanisms do democratic polities produce, maintain and reproduce inequality? It grapples with this preoccupation, however, in a particular and emergent milieu."
Looking at case law that led to a seemingly relentless series of evictions of poor illegal settlements (colloquially known as bastis) in New Delhi over the last two decades, it asks: how is inequality reproduced within and through contemporary Indian urbanism?"
Occupations, evictions, invasions. What has occupied you this summer?
Bhan, Gautam (2014) The impoverishment of poverty: reflections on urban citizenship and inequality in contemporary Delhi. Environment & Urbanization. Vol 26 (2): pp. 1-14 DOI:10.1177/0956247814542391.
Sunday, August 3, 2014
During my most recent trip to Germany in July, I asked several German law professors whether there were any “wrongful convictions” in Germany. The widely agreed answer was “no.” That led me to wonder whether inquisitorial systems of justice are perhaps better structured to prevent wrongful convictions.
Given that the success of the inquisitorial form of justice has historically depended on securing the confession of the accused, the more important question may be whether the law adequately protects a suspect’s right to remain silent. Indeed, in the U.S., the use of the method of questioning suspects has led to false confessions- one of the main causes of wrongful convictions in this country.
During the recent Juris Diversitas conference in Aix-en-Provence, France, I sat on a panel with Michelle- Thérèse Stevenson, a Ph.D. candidate at the University of Limerick. Her research indicates that the right to remain silent is under fire across Europe despite the fact that Article 6(2) of the European Convention on Human Rights upholds a suspect’s presumption of innocence. According to Stevenson, in both Ireland and France, there are signs that a suspect’s presumption of innocence and right to remain silent are being eroded despite the fact that both the European Convention and the respective state constitutions/case law recognize the right.
Ireland features an adversarial system of justice. Although the presumption of innocence is not explicitly stated in the Constitution, it is said to flow from Article 38.1 of the Irish Constitution. Additionally, courts have recognized a constitutional right to silence. In France’s inquisitorial system, the presumption of innocence is well recognized throughout the law. Despite these protections, in both countries, according to Stevenson, the role of defense counsel is held in low esteem. In Ireland, recent case decisions have held that where a suspect relies on counsel’s advice to remain silent, a jury may draw an adverse inference from that silence if it believes that the reason for his or her silence is they are “sure that the true reason for his silence is that he had no or no satisfactory explanation consistent with innocence to give.” In France, following the ECtHR decision in Salduz v. Turkey, France enacted legislation that recognized suspects’ rights to have a lawyer present during questioning and reaffirmed the fact that police have a duty to inform suspects that they possess the right to remain silent. Still, there is some evidence to suggest that resistance to this new legislation exists.
In sum, there is definite reason for concern for the future of the right to remain silent in Ireland. In France, the picture is less clear.
Code procédure pénale . Art. 63-1
Code civil, article 9-1
Déclaration des droits de l’homme et du citoyen du 26 Aout, 1789
ECHR Art. 6(2)
Dimitrios Giannoulopoulos, “Custodial Legal Assistance and Notification of the Right to Silence in France: Legal Cosmopolitanism and Local Resistance,” Criminal Law Forum. September 2013, Volume 24, Issue 3, pp 291-329
Heaney v Ireland  IESC 1 IR 580.
Innocence Project, “The Causes of Wrongful Conviction,” Available online at: http://www.innocenceproject.org/understand/.
Irish Criminal Justice Act, 2007.
Pat McInerney, “Equality of Arms” Between the Suspect Interrogated in Garda Custody and the Gardaí? 2 Judicial Studies Institute Journal (2010), pp 1-33, citing  E.W.C.A. Crim. 784, at para. 51.
Salduz v. Turkey, 49 EHRR 421.
Tuesday, July 29, 2014
Several interesting comparative ethics issues were addressed at the International Legal Ethics Conference VI held at City University, in London, July 10-12. The presentations by ethicists from all over the globe were divided into simultaneous sessions on ethics and Education, Philosophy, Regulation, Culture, and Empirical Approaches that offered a comparative view of how different jurisdictions view the interplay of ethics and the law.
Some of the interesting comparative issues I heard discussed included the evolution and regulation of alternative legal business systems (e.g., the LegalZoom phenomenon), the developing role of corporate general counsel, and the impact on the internet on practice and regulation of lawyers. As a comparativist with a US/UK focus, I was particularly interested in a presentation on the discipline of solicitors in England (which seemed to indicate the disciplinary process focused on ‘low hanging fruit’ just as it does in most of the United States).
A particularly interesting presentation focused on the English Bar Council’s ethics training for young barristers and, in particular, on recent developments in handling vulnerable witnesses in criminal cases. To my mind, the comparison between the English procedures in place for dealing with vulnerable witnesses and the comparable procedures in the United States illustrates at least one basic difference between the two criminal justice systems: the degree to which the English system empowers judges and the US system empowers the adversaries.
Thus, in England, procedures for dealing effectively with vulnerable witnesses rest largely in the hands of the judge while in the United States the lawyers are the responsible parties. For example, at an early pre-trial hearing, an English judge will undertake to manage the case and set a strict time table for interviews of witnesses. The judge is likely to address and resolve issues of whether a vulnerable witness should testify behind a screen or have the assistance of an intermediary to report to the court on the witness’s vulnerabilities and abilities, and to support the witness. The court may even require counsel to write down the questions proposed for cross-examination and may limit the time allowed for cross-examination. On the morning of trial, the court, counsel, and any witness intermediary will conference to address a vulnerable witness’s capabilities and how to get the best evidence from the witness, e.g., by short, non-leading questions, delivered chronologically, in plain English, etc.
We in the United States certainly do not give our judges this sort of control. In fact, it can be a violation of the confrontation clause for a court to interfere in or limit cross-examination. In our adversary system, the judge certainly has a role in protecting a vulnerable witness and helping to elicit truthful and complete testimony, but we leave the process largely in the hands of counsel.
I couldn’t help wondering if the elite status of barristers in England – something we don’t have in the United States – also contributed to the decision to give so much control to the courts. Traditionally, barristers had very little to do with lay clients and worked in what were essentially guilds, accepted fees by way of a pouch in the back of their gowns and were considered to be skilled advocates rather than partisans. To this day, barristers can function as defense counsel and prosecutors in different cases. In that context, it is not surprising that there would be a willingness on the part of barristers to defer the ethically and practically messy process of dealing with vulnerable witnesses to the courts.
Saturday, July 26, 2014
Tuesday, July 22, 2014
Tuesday, July 8, 2014
A meeting of attorneys general of the UK, US, Canada, Australia, and New Zealand raises the complicated but extremely pressing question about how to restrict juror access to the internet. In the United States, proof that a juror sitting on a case has researched that case on the internet is presumptively prejudicial and requires reversal if not rebutted. As yet, however, we are not aware of any US juror being charged with a crime, or with contempt of court, for such behavior. In the United Kingdom, juror misconduct of this kind is usually dealt with as a contempt of court. A New Zealand law commission has proposed to make it a crime for a juror to disobey the standard instructions of a judge and research a case on line. Jurors could be charged and punished for researching details of a case they are trying, sharing details of that research with other jurors, and disclosing details of juror deliberations. The latter charge could finally put an end to jurors seeking publicity – or lucrative media contracts – after verdict.
Owen Bowcott, Attorney Generals to Debate Role of Juries in Internet Age, The Guardian (July 6, 2014).
Chambers v. State, 739 S.E.2d 513, 321 Ga. App. 512 (Ga. Ct. App. 2013).
State v. Abdi, 45 A.3d 29, 191 Vt. 162 (2012).
United States v. Bristol-Mártir, 570 F.3d 29 (1st Cir. 2009).